Many workers whose jobs are funded by the federal government don’t work for the federal government—they work for companies with federal contracts. And many of those jobs don’t pay a living wage, effectively making the government a low-wage employer. In South Carolina, it’s actually the largest low-wage employer in the state, a new analysis by Good Jobs Nation finds:
These low-wage jobs are in occupations such as home healthcare aides (4,336), construction (1,185) security guards (876) and food service workers (444). And, just as Demos found for the nation as a whole, the 30,000 low-wage jobs subsidized by federal funding streams in South Carolina make the U.S. government the single largest creator of low-wage private sector jobs in the State, outranking Wal-Mart and McDonald’s combined, which employ an estimated 20,600 and 8,900 low-wage workers respectively within the State.
President Obama signed an executive order raising the minimum wage for federal contract workers to $10.10 an hour in 2014, but that is going into effect gradually. And $10.10, while a big improvement over the federal minimum wage of $7.25 an hour, is not enough.
This blog originally appeared in dailykos.com on February 27, 2016. Reprinted with permission.
Laura Clawson has been a Daily Kos contributing editor since December 2006 and Labor editor since 2011.
Workers at the Donald Trump co-owned Trump International Hotel Las Vegas voted to unionize. When hotel management challenged the union vote, the National Labor Relations Board rejected the challenge. But the Trump Organization fights on—to deny its workers their right to organize. The claim, of course, is that the big bad union intimidated the workers into voting to unionize:
“We will continue our fight to ensure a fair election for our valued associates, many of whom vigorously oppose union representation,” said Jill Martin, an attorney for The Trump Organization, in a statement to reporters. “The hearing officer’s recommendations erroneously disregarded the severe misconduct undertaken by Union agents, which clearly impacted an incredibly close election.” Trump management has until next week to formally challenge the NLRB recommendation, and then the Board’s regional chapter will determine whether or not to certify the union. Even if the local board backs the workers, Trump can further delay by appealing their ruling to the federal board in Washington, D.C.
That intimidation claim is what the NLRB’s local hearing officer already rejected. There is good reason, though, to believe that the vote was fraught with intimidation and retaliation … coming from management:
For some workers, like Donato, that wait is especially painful. After three years working at the hotel, Donato was suspended and then fired shortly after the union election, which he thinks was retaliation for his open support for the union. He is desperately hoping to win his job back as part of the bargaining process, and says he is mostly worried for his elderly mother and siblings in the Philippines, who depend on the money he sends them.
That wasn’t the first time the Trump hotel management went after a worker for exercising their legal right to organize. But even if all of management’s claims that the union harassed workers into voting yes are thrown out in the end, they can delay the final recognition of the union and delay a contract for months, at least, inflicting pain on the workers who’ve already risked so much to fight for a better workplace.
This blog originally appeared in dailykos.com on February 24, 2016. Reprinted with permission.
Laura Clawson has been a Daily Kos contributing editor since December 2006 and Labor editor since 2011.
In the week before Valentine’s Day, United Technologies expressed its love for its devoted Indiana employees, workers whose labor had kept the corporation profitable, by informing 2,100 of them at two facilities that it was shipping their factories, their jobs, their communities’ resources to Mexico.
A few workers shouted obscenities at the corporate official. Some walked out. Others openly wept as United Technologies shattered their hopes, their dreams, their means to pay middle-class mortgages.
No surprise. In the first decade of this century, America lost 56,190 factories, 15 a day.
Republican presidential candidates talk incessantly of building a physical wall to keep impoverished Mexican immigrants out of America. What they fail to offer is an economic barrier to prevent the likes of United Technologies and Cardone and Dematic from impoverishing American workers by exporting their jobs to Mexico.
The president of Carrier, owned by United Technologies, gathered the Indianapolis factory employees, skilled workers who earn an average of $20 an hour, and informed them that the corporation planned to kick them to the curb but expected them to perform to the highest standards until Carrier opened a new plant in Monterrey, Mexico, where workers will be paid $3 an hour.
Carrier President Chris Nelson told the group, “This was an extremely difficult decision.”
Such difficulties for poor, poor United Technologies! It was making a nice profit at its Indianapolis and Huntington factories. But it was not the big fat profit it could pocket by paying Mexican workers a mere $3 an hour, providing $3 an hour in health and pension benefits, and doing it all in the nation with the longest work weeks among the 36 countries in the Organization for Economic Co-operation and Development.
It would be “extremely difficult” for United Technologies to abandon Indiana after the corporation grabbed $530,000 from the pockets of hard-working Hoosiers over the past nine years as the state’s economic development agency forked over taxpayer cash to the corporation.
It would be even more “difficult” to turn its back on America considering that United Technologies grabbed $121 million from a federal tax credit program established specifically to ensure that green manufacturing jobs remained in the United States. Carrier took $5.1 million of those tax credits in 2013.
“This is strictly a business decision,” Nelson told the jeering workers. It wasn’t because of anything they had done. It was just that Mexico allows corporations to exploit its people in ways that America does not. Its minimum wage is 58 cents an hour, while the United States requires at least $7.25. For now, at least. Some GOP president candidates (Donald Trump) have said they think that’s too high.
The North American Free Trade Agreement (NAFTA) ensnared Mexican and American workers in a race to the bottom. And the proposed Trans-Pacific Partnership (TPP), a free trade deal among 12 countries instead of just three, would place American and Mexican workers in an even worse competition. They’d vie for jobs with forced and child labor in places like Brunei, Malaysia and Vietnam.
Under NAFTA, cheap American grain shipped to Mexico without tariffs destroyed peasant farming. And that prompted migration north. Meanwhile, American factories saw desperate Mexicans willing to work for a pittance, a government unwilling to pass or enforce environmental laws, and because of NAFTA, no tariffs when the goods were shipped back to the United States. That propelled factory migration south.
Before NAFTA, the United States had a small trade surplus with Mexico. That disappeared within a year, and now the annual trade deficit is approximately $50 billion.
Though it has been 22 years since NAFTA took effect, a report issued last week by the AFL-CIO says, “Labor abuses in many cases are worse now than before NAFTA … In short, NAFTA has contributed to labor abuses, not improvements.”
The report says the Mexican government fails to enforce labor laws and refuses to ensure that workers can form independent labor unions to try to protect their own rights. In fact, the report says, “The human and labor rights situation in Mexico is rapidly deteriorating.”
As a result, workers are powerless and completely at the mercy of corporations. So corporations like United Technologies can pay them $3 an hour and get away with it. This is not good for Mexican workers. And it’s not good for American workers.
The AFL-CIO report makes it clear that the TPP would worsen the situation because it would give corporations like United Technologies the option of moving to places like Vietnam where they could pay trafficked workers and child laborers $1 an hour. Or less.
Just like with NAFTA, there’s nothing enforceable in the TPP that would stop the labor abuses. It would facilitate corporations forcing workers from Indianapolis, Philadelphia and Monterrey, Mexico, into competition with 14-year-olds laboring 60-hour-weeks for $1-an-hour in Malaysia.
Just like United Technologies, these corporate CEOs would say it was “strictly business” to offshore American mills, industry that had served as city centers for decades, even centuries, factories so synonymous with towns that the communities took their names like Ambridge (American Bridge) and Hershey, which, by the way, laid off workers at its Pennsylvania home in 2007 and opened a chocolate plant in Monterrey, Mexico.
The AFL-CIO investigation of the TPP determined that it would do nothing more than increase corporate profits while sticking workers—in the United States and elsewhere—with lost jobs, lower wages and repressed rights.
For 22 years NAFTA has destroyed subsistence farming in Mexico and good, middle class factory jobs in the United States. Maybe corporations have made out like bandits. But the banditry should be stopped for the heartache it has caused on both sides of the border.
As Carrier President Nelson told the Indianapolis workers, members of my union, the United Steelworkers, that he was taking their jobs from them so that shareholders and corporate executives could make a few extra bucks, the workers protested. Nelson kept saying, “Quiet down. Let’s quiet down.”
That’s exactly the opposite of what American workers and communities should be doing. They should shouting from rooftops, “No TPP!” For the love of American manufacturing, they should be yelling bloody murder.
This blog was originally posted on inthesetimes.com on February 24, 2016. Reprinted with permission.
Leo Gerard is the president of the United Steelworkers International union, part of the AFL-CIO. Gerard, the second Canadian to lead the union, started working at Inco’s nickel smelter in Sudbury, Ontario at age 18. For more information about Gerard, visit usw.org.
Conservatives had a great plan in motion to decimate unions. If Justice Antonin Scalia hadn’t died in his sleep, they almost certainly would have pulled it off.
First they got the Court to rule their way in 2014’s Harris v. Quinn, which targeted home healthcare unions. Like “right to work” laws, the case sought to gut unions’ funding and diminish solidarity by saying that union members can’t be required to pay dues. The Court agreed, holding that the First Amendment does not allow the collection of fair share fees from home healthcare workers. The decision, written by Justice Alito and signed by the Court’s four other conservatives, also not-so-subtly invited further attacks on the funding and membership of unions.
Next came Friedrichs v. California Teachers Association, which sought to expand Harris to impose right-to-work on all public sector employees. The conservative Center for Individual Rights (CIR) rushed Friedrichs to the Supreme Court by essentially conceding at every lower court that under current law, it should lose. Friedrichs could only win if the Supreme Court overturned 39 years of precedent that date back to the 1977 Abood v. Detroit Board of Education decision.
When the Court accepted Friedrichs, there was some hope that Justice Scalia might provide the critical vote to save public-sector unions. This was not because Scalia had any great love for labor—he did not—but because he understood the basic economic theory of free riders: Just like any other enterprise, it can be difficult for a union to get its members to pay dues when they can get all the benefits of the contract for free. Scalia had said as much in a 1991 concurrence-dissent, and many were hoping that he would exercise consistency with Friedrichs.
However, the oral arguments on Friedrichs last month destroyed any such illusions. Justice Scalia, never coy about his beliefs, made it clear that he now believed that fair share fees should be eliminated. Though it’s often difficult to divine the Court’s final decision from oral arguments, it was plain after the Friedrichs arguments that labor would lose.
Accordingly, labor was scrambling to figure out how best to run a union in a post-Friedrichsworld. Meanwhile, conservatives already had a plan in the works to expand what they saw as a certain win.
Last week, in a little-noticed case called D’Agostino v. Baker, the National Right to Work Legal Defense Foundation lost at the First Circuit in their attempt to argue that the First Amendment does not allow exclusive representation of home healthcare workers. This case sought to expand theHarris holding by arguing that the First Amendment prohibits home healthcare unions not only from collecting fees from workers who don’t want to pay, but also from bargaining on behalf of any worker who doesn’t opt to be a member.
Former Supreme Court Justice David Souter wrote the decision for the First Circuit inD’Agnostino, relying heavily on Abood and its progeny. If history is any indication, National Right to Work was planning on appealing this case to the Supreme Court. The case provided a glimpse of what the likely post-Friedrichs plan of attack would have been: After you win on the dues front, go after membership.
In addition, other cases, such as Bain v. CTA, that attacked the membership rights of unions but had been thrown out by lower courts, were likely to reappear.
However, on Saturday it was reported that Justice Scalia had been found dead. With his absence from the Court, conservative plans to attack union dues and membership through Supreme Court challenges may have dissolved for now.
If President Obama can get a new justice confirmed by a Republican-controlled Senate and that justice is permitted to take part in Friedrichs, then the case will likely be decided 5-4 in favor of labor. If Republicans leaders made good on their vow to thwart any nomination by Obama, or the new justice does not take part in Friedrichs—either because the Court decides not to set it for rehearing or the justice must recuse herself—then all indications are that the case will be decided 4-4. In the event of such a tie, the lower court ruling is upheld—in this instance, the 9th Circuit’s dismissal of the case.
When the Supreme Court ties 4-4, no precedent is set. Anyone in labor worried about that outcome in Friedrichs can rest a bit easier remembering that no precedent is needed here. Aboodcreated the precedent in 1977, and Friedrichs was a shameless ideological ploy to overturn that longstanding precedent. In Friedrichs, the CIR did not present the Supreme Court with the typical grounds for review: either a “a circuit split,” where lower courts issued conflicting decisions, or proof that circumstances had changed so significantly since Abood that the Supreme Court needed to reconsider its ruling. (Justice Stephen Breyer pointed to the absurdity of the Court overruling good case law for no good reason when he asked in oral arguments whether the Court should also revisit its landmark 1803 decision in Marbury v. Madison, which helped set the very terms of judicial review.)
Therefore, unlike other cases on the Court’s docket, if Friedrichs goes away quietly, it will stay gone until there is another conservative majority.
Without a Friedrichs decision that bans fair share fees, it is unlikely the Supreme Court would accept D’Agostino, and even less likely that it would decide against labor in such a case. Other cases attacking the membership rules of unions on specious Constitutional grounds are similarly unlikely to make it to the Supreme Court. With Justice Scalia’s unexpected death, conservatives will have to go back to attacking labor the old-fashioned way: at the state and federal legislatures.
This post originally appeared on inthesetimes.com on February 15, 2016. Reprinted with permission.
Many different aspects of Justice Scalia’s legacy on the Supreme Court have been discussed extensively since his death, but one important issue has largely escaped attention: his outsized role in promoting the use of forced arbitration in consumer, employment and a wide range of other types of contracts. Fine print forced arbitration clauses bar consumers and workers from going to court, but require them to go into a corporate-designed private dispute resolution system where they are forbidden to be a part of a class action. As the New York Times set forth in a series of remarkably thorough and well-researched stories, forced arbitration has allowed corporations to break the law and get away with it in a wide variety of settings.
Justice Scalia played a central role in bringing about this state of affairs. He was not only a reliable vote for enforcing arbitration clauses and expanding the 1925 Federal Arbitration Act far beyond the intentions of its framers, but he also wrotethe most controversial and significant of the Court’s decisions enforcing forced arbitration clauses. In American Express v. Italian Colors, for example, in 2013 Justice Scalia wrote the majority opinion in a sharply divided 5-4 decision holding that a take-it-or-leave-it arbitration clause could be used to prevent small businesses from actually pursuing their claims for abuse of monopoly power under the antitrust laws.This built upon Justice Scalia’s 2011 opinion for the Court in AT&T Mobility v. Concepcion, which overturned (without mentioning) more than 100 decisions where appellate courts in 20 states and the majority of circuits, and district courts throughout the country, had previously held that where a provision banning class actions in an arbitration clause was proven to prevent individuals from vindicating their rights under consumer protection or civil rights laws, that the clause couldn’t be enforced. In Concepcion, Justice Scalia invented a new rule of federal law that wiped away basic state contract law rules against contracts that let corporations just opt out of basic laws.
So what does this mean for what will happen to forced arbitration now that Justice Scalia is no longer on the Court? Well, obviously everything hinges upon who ultimately succeeds him. But if the next Justice is one who refuses to put corporations’ rights to force people into arbitration ahead of all other federal and state laws, there is reason to believe that the Court may reverse decisions such asItalian Colors and Concepcion.
One of the strongest hints as to this possibility was offered by none other than Justice Scalia’s close personal friend Justice Ruth Bader Ginsburg, just a few weeks before his death. In speaking at Brandeis University, Justice Ginsburg was reflecting on a disastrous series of U.S. Supreme Court decisions from the early decades of the 1900s, where it struck down minimum wage laws and many other worker protections as supposedly violating the corporate right to freedom of contract. And Justice Ginsburg linked this long discredited line of cases (the most famous of which is Lochner v. New York) with Italian Colors and Concepcion:
I was reminded of Lochner reading some decisions of the Court concerning workers, consumers, credit card holders who signed agreements saying “if you have a dispute with us, you can bring it only in arbitration — not in court — and you cannot use the class action. You must sue for your individual claim, which might be 30 dollars, and that’s it.” And that has also been described as tied to liberty of contract.
It is hard to read these words without understanding that Justice Ginsburg is indicating that Concepcion and Italian Colors are not just wrong, they are disastrously wrong, usurping the power of legislators to protect workers and consumers. Similarly, in a dissent in a very recent decision (DirecTV v. Imburgia), Justice Ginsburg noted that the Court’s “decisions have predictably resulted in the deprivation of consumers’ rights to seek redress for losses, and, turning the coin, they have insulated powerful economic interests from liability for violations of consumer-protection laws.”
That’s telling it like it is!
Justice Ginsburg is hardly the only justice to question the legitimacy of Justice Scalia’s most aggressive opinions promoting forced arbitration. In the Italian Colors case, Justice Kagan wrote an eloquent, even fierce dissent, that described the majority opinion as a “betrayal” of both the Court’s own prior arbitration decisions (the Court always used to say that arbitration just meant shifting a case from one forum (court) to another (arbitration), but was not supposed to mean that people lost their underlying substantive rights) and of the antitrust laws.
With Justice Scalia gone from the Court, no one can say what will happen next, with respect to forced arbitration or any other issue. But the exceptionally strong words of Justices Ginsburg and Kagan raise a very real possibility that the Supreme Court’s love affair — with forcing Americans into arbitration even when it lets corporations break the law with impunity — may finally be over.
This post originally appeared on thehuntingtonpost.com on February 23, 2016. Reprinted with permission.
Paul Bland manages and leads a staff of nearly 30 attorneys and other staff, guiding the organization’s public interest litigation docket and other advocacy. As staff and senior attorney, he was responsible for developing, handling, and helping Public Justice’s cooperating attorneys litigate a diverse docket of public interest cases. Paul has argued and won more than 30 cases that led to reported decisions for consumers, employees or whistleblowers in six of the U.S. Courts of Appeals and the high courts of nine different states. Paul is a 1986 cum laude graduate of Harvard Law School and a 1983 magna cum laude graduate of Georgetown University, where he received a B.A. in Government. Prior to coming to Public Justice, Paul was Chief Nominations Counsel to the U.S. Senate Judiciary Committee, and worked for nearly seven years with Kieron F. Quinn in Baltimore, Maryland, where he handled consumer and toxic tort class actions, prosecuted qui tam suits and defended libel suits.
With the death of leading anti-union reactionary Antonin Scalia, the current docket of Supreme Court cases has been thrown into turmoil.
For the labor movement, Scalia’s departure means narrowly escaping the anticipated anti-union decision in Friedrichs v. California Teachers Association. While most commentators expected a 5-4 anti-union ruling, the most likely result now is a 4-4 decision, momentarily leaving intact the agency shop for public-sector workers and preventing the establishment of a legal beachhead for future attacks.
Contrary to those who saw a silver lining in Friedrichs, judges would never have used the precedent to expand the rights of government workers on free speech grounds. Instead, as Moshe Marvitpoints out, union busters would’ve deployed the rationale in Friedrichs to argue any form of exclusive representation violates public workers’ free speech rights.
This would’ve turned the clock back over 60 years, to a time when all public employee bargaining was suspect precisely because it was deemed political. Additionally, it would’ve only been a matter of time before Friedrichs was applied to the private sector, imposing “right to work” on every workplace in the country.
But for Scalia’s death, a Supreme Court majority would have almost certainly overturned 50 years of settled law. In doing so, five individuals would have substituted their political beliefs for those of elected officials in agency shop states—participating in the broader attack on public employee rights spearheaded by politicians like Wisconsin governor Scott Walker and Illinois governor Bruce Rauner.
All of which is to say that rather than being a body above politics, the Supreme Court reflects the political trends of the day. Take last year’s gay marriage ruling. The words of the Constitution hadn’t changed, nor had some nebulous thing called “the law.” What changed, after decades of grassroots activism, was the political reality. The same forces that prompted the Supreme Court justices to change their view likely prompted establishment politicians such as Hillary Clinton to reverse their own position.
If judges simply interpreted “the law,” the death of a justice would not matter. But it does matter, and so a debate will rage over Scalia’s replacement.
Union activists should have a different discussion. Instead of engaging with the prevailing debate—which will likely consist of whether to appoint an ultra-right Republican or a corporate Democrat—those in and around the labor movement should use the confirmation battle to spark a conversation about the role of unelected judges in setting labor policy.
And we should note the role both parties have played in establishing and maintaining the present system of labor law. Even during oral arguments in Friedrichs, the liberals on the Supreme Court did not mount a rousing defense of public employee unionism. They simply warned the conservative majority about the dangers of overturning settled law—which they worried would threaten the appearance of impartiality the Supreme Court relies on to maintain its legitimacy.
Much of the body of settled law they were keen to defend—and which corporate liberals on the Supreme Court have been key to establishing—blocks effective trade unionism. Judicially created rules hamstringing labor include restrictions on class-wide solidarity and important tactics such as intermittent strikes, the permanent replacement of striking workers, and the use of the business form to evade unionism. Regardless of which candidate is eventually sworn in as Scalia’s replacement, this bipartisan consensus will almost certainly remain undisturbed.
Indeed, nowhere is the need for a Bernie Sanders–style political revolution more apparent than in the selection of Supreme Court justices. Sanders correctly rails against a bipartisan establishment encompassing politicians from both parties, corporate lobbyists and establishment media forces. But the federal judiciary, and in particular the Supreme Court, is perhaps the most quintessentially establishment grouping in American politics.
Which brings us to the bigger question at stake for unions. As long as labor allows nine establishment figures to dictate policy, we will never revive ourselves as a movement. The rules will continue to be stacked against us. Legislative or National Labor Relations Board initiatives, however well intentioned, will be nullified by the courts.
Over 100 years ago, a school of thought called Legal Realism shattered the idea that judicial decisions were anything but political decisions. Led by Oliver Wendell Holmes and firmly situated within the Progressive Movement, the Legal Realists rejected the idea that judges somehow divined decisions from abstract analyses of the law. To study law, they held, was simply to predict what judges would decide. This subversive idea—that there is no such thing as the law independent of actual decisions—proved highly destabilizing to a fundamentally undemocratic judiciary.
Around the same time, the labor movement was agitating against “judge-made law.” Understanding that labor policy was set by elites with no ties to the working class, unionists agitated not just for better judicial decisions but to remove labor policy entirely from federal courts’ jurisdiction.
For conservative unions like the AFL to radical ones like the IWW, defying judicial injunctions was a matter of official union policy. Unionists understood the law was not on their side. The anti-judicial sentiment reached its peak with the 1932 passage of the Norris-LaGuardia Act, which attempted to get federal courts out of the business of making labor policy. (Over the succeeding decades, the act was defanged by the same federal judges it was supposed to protect labor from.)
Today, the labor movement shouldn’t waste time pondering which elite Supreme Court justice will get confirmed, the latest NLRB initiative waiting to be overruled by the federal judiciary, or the newest scheme to revive labor within the confines of an unjust system of labor control. The more important discussion is the one posed by unionists a century ago: how do we break from the constraints of judge-made law?
While there is no easy answer to this question, shedding liberal illusions about the role of the Supreme Court is a start. It is also important to call out the many restrictions on union rights. We can educate, agitate and organize, but if the rules of the game are rigged, we will never succeed.
Winning requires first challenging the rules of the game and the prerogative of elite institutions to govern labor relations. Judicial support for public employee union rights, we shouldn’t forget, was only secured after millions of public-sector workers struck against a bipartisan consensus that rejected those rights.
There are no easy answers about how we knock down the barriers imposed by labor law. But let’s use the death of an arch-nemesis of labor to at least start the discussion.
This blog originally appeared at inthesetimes.com on February 17, 2015. Reprinted with permission.
Vermont is about to become the fifth state in the U.S. with a paid sick leave law. The state House, which had previously passed a sick leave bill, this week passed the state Senate’s version of the bill, described as “somewhat more business-friendly.” That usually means “somewhat less worker-friendly,” but it’s still a major advance:
The measure calls for employers to provide workers three paid sick days a year for the first two years that the law would be in effect and five thereafter.
It does not cover employees working fewer than 18 hours a week or 21 weeks a year.
The bill is headed to the desk of Gov. Peter Shumlin, who supports it. Vermont will join Connecticut, California, Massachusetts, and Oregon as states with paid sick leave laws. A number of other American cities and towns—many of them in New Jersey—have similar laws. And, of course, most other countries in the world have this basic, common-sense policy.
This blog originally appeared in dailykos.com on February 18, 2016. Reprinted with permission.
Laura Clawson has been a Daily Kos contributing editor since December 2006 and Labor editor since 2011.
The Friedrichs vs. CTA Supreme Court case, a nakedly partisan assassination attempt on the labor movement, has died with Justice Antonin Scalia. What cannot die with it is the sense of existential crisis within the labor movement. We need a far-reaching conversation about the pathway back to increased activism, membership and power.
Like few moments before it, the Friedrichs case sparked a broad consensus within labor that our movement faced an existential crisis and that business as usual was a prescription for assisted suicide. Unfortunately, too many union leaders and staff based out of Washington, D.C. are now at risk of being dismissed as a bunch of Chicken Littles who overhyped a sky that never fell by the people who have the greatest ability to determine labor’s future: the local leaders and disengaged members.
It was a mistake to use the Friedrichs case to forge this somewhat rare agreement that labor faces an acute crisis. It seemed like a long shot that the Supremes would even take up the case just a few months after rejecting Justice Alito’s wet dream of a public sector “Right to Work” standard by a 5-4 margin in last session’s Harris vs. Quinn case (I lost a lot of bar bets when they did). Even with the case proceeding to oral arguments, there was always the possibility that the Court would punt on the issue or even rule in favor of the unions for political reasons or that one of these old farts would die and the case would deadlock.
But labor’s crisis predated Friedrichs and will live on after it. The “Right to Work” agenda, and the gutting of public sector collective bargaining laws, will continue to be pressed at the state level. And if the general financial commitment and philosophical approach to new union organizing remains the same, union density will surely continue to decline.
Fortunately, until the Friedrichs case gets re-argued or stalemates in a 4-4 decision, labor remains a bit like Schrödinger’s cat: simultaneously getting murdered by the judiciary and in the midst of a possible resurrection. So there’s still time to harness the sense of crisis into a renewed commitment to radical workplace democracy and activism. And the “rainy day” savings that many unions made in anticipation of an adverse decision can now be used as a “Scalia Dividend” to be invested in new campaigns.
A pragmatic approach to Armageddon
Faced with a potential revenue loss of millions of dollars, international unions focused pragmatically (and conservatively) on cajoling their locals to sign up agency fee payers to full union membership. But that was merely a matter of mechanics—a pragmatic approach to the coming Armageddon. Where workers are exclusively represented by a union and already compelled to pay fees for the benefit of that representation, those that haven’t joined typically haven’t been asked. It is a problem that too many unions don’t make a face-to-face contact to new employees and ask them to join, but it’s hardly labor’s biggest one.
The actual crisis in labor is rooted in a framework that has turned unions into agencies for workers, instead of organizations ofworkers.
The legal obligation of the duty of fair representation forces unions to focus on grievances and contract bargaining while the Taft-Hartley law and contractual no-strike agreements strongly discourage rank-and-file worker protest. Too many members then develop a “what have you done for me lately?” relationship with their union that is vulnerable to a “give yourself a raise” campaign that deep-pocketed right-wing outfits can launch following the loss of agency fee, encouraging union members to stop paying dues or agency fees and gain a bump in their paycheck.
That is the crisis that has been largely unaddressed, or at least unsolved, even while unions have spent two decades genuinely trying to meet the charge from the AFL-CIO to “organize at an unprecedented pace and scale.”
Not to mention, while union supporters were dancing on Justice Scalia’s grave, the West Virginia legislature just voted to become the 26th so-called “Right-to-Work” state. How long can agency fee survive in the other half of the states?
So the crisis still exists in that declining union density leads to declining union power. The billionaire class still wants to kill us, and we don’t make a compelling case about why workers should risk their jobs and relationships to fight with unions that look like ineffective special interests.
One of the under-told stories of the last two decades is how badly, and often how subtly, the organizing model conflicts with unions’ business as usual. In order to win, organizers introduce a radical and inclusive democracy into workplaces. We recruit often large and unwieldy organizing committees of workplace leaders through whom all major decisions about tactics, timing and demands must go for deliberation and approval.
And then we throw these newly radicalized workers into local unions where leadership all too often feel a political need to control bargaining and messaging themselves, going off into backrooms to meet with management and come back with a “win.” This is an unspoken conflict between international unions—who feel the need to “organize or die” more acutely—and locals who too often receive new bargaining units as an unwelcome disruption.
Many organizers wanted to use Friedrichs as an opportunity to work through this conflict. Instead, panicked about potential revenue loss, the leadership of the international unions talked too much about “agency fee conversion” (shop talk for convincing union-represented non-members to join and pay full dues) and a single Court case that is now moot. The organizers caught in the middle could find themselves locked out of further conversations about labor renewal and change with locals that now feel the crisis has passed. They need to broaden the sense of crisis and bring newfound resources to the table.
The “Scalia Dividend”: Labor’s second chance to get it right
Many unions that had Friedrichs’ sword of Damocles over their heads have quietly been squirreling money away, by under-funding or delaying funding new campaigns and not filling vacant staffing positions. Which means those unions now wake up to a “Scalia Dividend”—an unexpected windfall of newly available financial resources for new campaigns and initiatives.
Unions can and should commit resources to comprehensive campaigns for new bargaining units—the kind of campaigns that have quietly ceased in recent years. These organizing campaigns should have an eye towards enhancing density in union strongholds like auto manufacturing, education and retail, but also for big public campaigns that could potentially inspire more non-union workers to take action.
What could go further in inspiring non-union workers to contemplate their power is to build on the internal organizing that’s been going on in anticipation of Friedrichs with contract campaigns. Meaningful member engagement—the kind that can withstand the loss of agency fee—comes from stoking workers’ desires for better pay and working conditions (even their less “reasonable” demands) and extracting sweat equity from them in the form of escalating actions. These campaigns should culminate in a plan to demonstrate, as Chicago Teachers Union President Karen Lewis has said that, “Our ability to withhold our labor is our power.”
We also need a new attempt at labor law reform. The fact that a workers rights bill has less of a chance passing Congress than Obama’s Supreme Court nominee shouldn’t make us say “Why bother?” Instead, it should inspire us to propose big, bold and meaningful reforms. Restoring solidarity rights, rooting unions’ collective actions in the First Amendment, outlawing “Right to Work,” banning permanent replacement of strikers—put it all on the table.
God forbid we do manage to spark the kind of mass strike wave that panics the billionaire class into throwing workers a few bones. What would we win for our effort? Card check? The AFL-CIO should convene an open call for legal reform proposals and put a new “Right To Your Job” bill on the record and on the lips of our members and allies.
The erstwhile House of Labor should also convene a wide-ranging strategic retreat for local leaders, rank-and-filers, staff, academics and activists that treats no idea as unwelcome or unthinkable. The recent petition filed by 106 leading labor scholarsin response to a question on union access to mandatory captive audience meetings left open by the NLRB (and promptly forgotten by union organizers) for 50 years highlights how badly labor needs more and different perspectives brought into the conversation. The poor souls who have spent the last few months poring over organizing databases, wall charts and lit pieces in anticipation of the Friedrichs decision need some fresh air and some new people to talk to.
Unions are no longer facing a multi-million dollar hit in June. We can give the bunker mentality a break, but we can’t pretend that we’re in the clear. There aren’t a lot of second chances in life. Labor must not squander this one.
This blog originally appeared at InTheseTimes.org on February 16, 2016. Reprinted with permission.
Shaun Richman is a former organizing director for the American Federation of Teachers. His Twitter handle is @Ess_Dog.
With the death of Supreme Court Justice Antonin Scalia’s death Saturday, the court’s ideologically conservative 5-4 majority is no more. One big case this affects is Friedrichs v. California Teachers Association, which the conservative ideological majority on the court was prepared to use to bankrupt public-employee unions. Now they can’t do that.
The Friedrichs case involves a lawsuit from anti-union groups that want to stop public-employee unions from collecting dues from non-members, even though they are required by law to provide expensive services. A unanimous 1977 ruling by the Supreme Court, in Abood v. Detroit Board of Education, had said that unions can collect dues from nonmembers for “collective bargaining, contract administration, and grievance adjustment purposes” while those nonmembers are free to choose whether to also pay into union funds used for political purposes. The conservative, anti-union ideologues on this court, which included Scalia, went against precedent and “settled law” in agreeing to hear this case at all.
The Supreme Court has once again decided to reconsider “settled law.” This time it is a case involving the rights of public-employee unions to charge employees a fee for the services the unions are required by law to provide to all employees – even those who are not members of the union. The goal is to bankrupt the unions by denying them the funds necessary to perform the required services.
The argument is that since unions protect working people’s pay and rights, paying fees for union services therefore violates the “free speech” of those who support concentrated wealth and power.
The names Koch, Bradley, Scaife, Olin, Coors, Walton and the others are well known to people who study the massive amount of money behind the so-called “conservative movement” that has helped drive anti-democracy efforts and the resulting inequality in the decades since the 1970s. This small band of wealthy foundations and billionaires are among the same conservative donors who funded the efforts to place the current corporate-conservative majority on the court, and many of the politicians who voted to put them there.
Justice Scalia died before the Court decided the Friedrichs case. The court is now evenly divided, with four justices who almost always rule on the side of big corporations and billionaires against unions, environmentalists, consumer groups and all other interests the protect the non-wealthy public in general. The other four justices usually consider the constitutionality, law and merits of the cases before them.
In the Friedrichs case, there is little doubt that the court will now tie 4-4 because of the unanimous Abood precedent. The rules of the legal system say a tie in the Supreme Court means that the ruling of the lower court that advanced the case up to the Supreme Court stays in effect.
In the case of Friedrichs v. California Teachers Association, that lower court is the Ninth Circuit Court of Appeals. That court ruled that the unanimous 1977 Supreme Court ruling in Abood is still settled law and applies, so the California Teachers Association could continue to collect dues from nonmembers.
Put another way, Scalia’s death likely means that public-employee unions will not be forced into bankruptcy by the corporate/billionaire-funded “movement” ideologues on the Court.
This blog originally appeared at OurFuture.org on February 16 2016. Reprinted with permission.
About the Author: Dave Johnson has more than 20 years of technology industry experience. His earlier career included technical positions, including video game design at Atari and Imagic. He was a pioneer in design and development of productivity and educational applications of personal computers. More recently he helped co-found a company developing desktop systems to validate carbon trading in the U.S.
A bunch of congressional Republicans (and two Democrats who should be ashamed of themselves) are very upset that the Obama administration plans to expand overtime pay eligibility. The lawmakers have written a letter to Labor Secretary Tom Perez expressing concern about changes that aren’t even being made, but mostly about the fact that they don’t want people to get overtime pay:
What is in the rule, which the members of Congress who signed the letter don’t like, is a long overdue increase in the salary an employee must be paid if an employer wants to avoid paying overtime. The current rule sets that exemption threshold at $23,660 a year—below the poverty line for a family of four. The proposed rule, as the representatives note, “would raise the salary threshold and require employers to pay overtime for all employees who make $50,440 or less per year.” The signers don’t like that, but the reasons they give don’t hold water.
The letter says the increase in the threshold would suddenly make 5 million employees eligible for overtime pay. That’s true, and it’s a good thing. Making employers pay their employees extra when they work more than 40 hours in a week is the purpose of the Fair Labor Standards Act. It’s good for those employees and their families, whether they get paid more or are simply allowed to spend more time with their families. And because it applies to all employers equally, it will not create competitive burdens.
The representatives claim the proposed salary threshold somehow fails to take into account the fact that “the purchasing power of a dollar is drastically different in various parts of our country.” But the claim is ridiculous. The point of the salary threshold is that workers paid less than this amount—even if they are classified by their employers as managers or executives—are automatically entitled to overtime protections. Essentially, this threshold separates workers with genuine managerial and professional responsibility, who have substantial autonomy over their work schedule and have real bargaining clout with their employers, from those workers who are simply labeled “managers” (often by employers precisely looking to avoid the obligation to pay overtime) but who nevertheless can be compelled to work long hours.
A fair day’s wage
? Workers in Las Vegas’s Culinary Union were denied a permit to protest outside the Palace Station Hotel & Casino, so they were like “fine, we’ll commit nonviolent civil disobedience … “
? This is vile behavior to see from a teacher, let alone a teacher whose school has elevated her as a model for others. And before dismissing it as a one-time occurrence, consider that the video was recorded by an assistant teacher who was sick of watching that sort of thing. And that at Success Academy charter schools:
Jessica Reid Sliwerski, 34, worked at Success Academy Harlem 1 and Success Academy Harlem 2 from 2008 to 2011, first as a teacher and then as an assistant principal. She said that, starting in third grade, when children begin taking the state exams, embarrassing or belittling children for work seen as slipshod was a regular occurrence, and in some cases encouraged by network leaders.
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