Originally published in The New Republic on September 28, 2017.
The American labor movement currently stands at one of its lowest points in history. Barely one-tenth of all workers belong to a union—down from more than one-third in the 1950s. Over the past half-century, the courts have gutted legal protections for striking workers, curtailed their ability to engage in political action, and granted employers broad “free speech” rights to frighten them out of unionizing. Under President Trump, workers are likely to be besieged by even more hostile attacks from Republicans and their corporate allies—including calls for a national “right to work” law that would strip unions of their ability to collect dues. If the labor movement hopes to survive in the twenty-first century, it will need a new strategy.
For more than 80 years, workers have primarily relied on protection from the National Labor Relations Act, the landmark measure passed under FDR that prohibits unfair labor practices and encourages collective bargaining by private-sector employers. But the law has been so watered down by unfriendly court decisions and legislative amendments that it offers little recourse for the labor movement going forward. Today, according to a new report by a leading think tank, workers would be better off if they adopted a strategy that turned to a different and more sacrosanct set of constitutional guarantees: the Bill of Rights.
According to Shaun Richman, a former organizing director for the American Federation of Teachers, workers should not just defend their rights as employees, but should also start championing their liberties as citizens. In a report for the Century Foundation, Richman argues that just as corporations have gone to court to claim broad constitutional protections, workers should assert their fundamental rights to free speech and equal protection under the law. “Unions have rarely if ever argued that these cases violated their own constitutional rights,” Richman says. “Rights-based rhetoric was kept out of their whole legal strategy.”
Consider several recent cases that unions argued—and lost—under the National Labor Relations Act. In 2011, workers at a Jimmy John’s sandwich franchise in Minneapolis launched a campaign to protest the company’s refusal to provide paid sick leave. In response, the company fired six workers involved in the protest. But when the union representing the employees, the Industrial Workers of the World, accused the company of violating the National Labor Relations Act, a federal appeals court ruled in July that the company had the right to fire its employees for engaging in “disloyal” conduct.
At the same time, Congress and the courts have sharply curtailed the ability of workers to go on strike, especially in solidarity with others. It is now illegal for truck drivers to refuse to make deliveries to stores where workers are on strike, or for cleaners to refuse to wash linens from hotels where workers are protesting. In 2006, Roger Toussaint, then the president of Local 100 of the Transport Workers Union, was sentenced to ten days in jail for leading a transit strike that crippled New York City. Employers, meanwhile, have retained the right to lock out workers who are engaged in collective bargaining, and to fire employees without just cause.
To Richman, cases like these underscore the benefit of a rights-based strategy. After all, punishing employees for speaking out against their boss—whether on a flyer, a T-shirt, or Twitter—would seem to violate their First Amendment right to free speech. Similarly, going on strike should fall under the constitutional right to free assembly, and union organizing embodies the right enshrined in the Thirteenth Amendment to be free from “involuntary servitude.” In effect, Richman argues, unions should go on offense in the courts—and brandish the Constitution as their most powerful weapon.
“After the election, it’s clear Democrats need to do something to win back workers,” Richman says. “But they don’t really know what to do. Why not push the courts to establish a right to strike? Or the right to be free from arbitrary terminations from your job?”
Some longtime observers of the labor movement are skeptical that unions will embrace Richman’s call to arms. “I’ve found that unions are very shortsighted,” says Bill Fletcher Jr., co-founder of the Center for Labor Renewal and a former education director of the AFL-CIO. “There’s a conservatism that exists in the labor movement—a sense that doing anything different might be too radical, or could be misperceived, or could lead to an uncertain outcome.”
Given the bleak state of affairs for workers, however, some argue the labor movement has little left to lose. “There’s no point thinking that if labor sticks with the status quo, they will survive,” says Erik Loomis, a labor historian at the University of Rhode Island. “The National Labor Relations Board under Obama was probably the best it’s been for labor since LBJ. But even that kind of incremental progress is just not enough when you’re at total war with the Republicans.”
When it comes to corporations and employers, the courts routinely adopt a rights-based position. Unlimited campaign contributions are protected as a form of free speech. Denying the right of unions to collect dues from all employees is defended as “the right to work.” Employers have the right to permanently replace striking workers, and to put economic pressure on other businesses to support their own economic interests. Richman points to cable television providers that have blacked out an entire channel rather than submit to a rate increase from the channel’s network—and have even urged viewers to call the network’s CEO to complain. “Why is the use of the secondary boycott legal when employed by media companies,” Richman writes in his report, “but illegal when exercised in solidarity by workers?”
Richman spells out a variety of rights-based cases that unions should take to court—where even conservative judges have proven to be receptive to constitutional arguments. Unions should argue that workers have a free-speech right to protest their employers. If they are locked out on the job, workers should assert their due process rights under the Fifth Amendment. And they should challenge right-to-work laws and the bans on solidarity boycotts and so-called “signal picketing”—such as protests in front of a company that mistreats its employees—as violations of their Fourteenth Amendment right to equal protection under the law. “Simply put,” Richman argues, “unions are hampered by rules that would never be applied to corporations, or to any other form of political activism.”
In addition to fighting in court, workers and their allies need to educate the public about workplace inequality and pressure Democratic lawmakers to block anti-labor judges. They also need to begin outlining a clear pro-worker agenda for whoever wins the Democratic nomination for president in 2020. The Obama era showed just how brief the window of opportunity can be for advancing labor rights. That’s why, even though the GOP currently controls all three branches of government, and the courts still tilt to the right on matters of labor law, unions and their supporters must wage a war on all fronts. “It would be horrible if people thought we could just pursue a long legal strategy and ultimately win in the courts,” says Stephen Lerner, a labor strategist and architect of the Justice for Janitors campaign. “It has to be part of a concerted strategy—winning both legally and legislatively.”
In a way, there’s no better time than now to implement a rights-based labor strategy. After all, Lerner points out, some of the greatest gains in labor history have come from workers organizing to fight illegal or unprotected conditions—whether it was farmworkers going on strike to protest low wages, or public school teachers mobilizing for collective bargaining rights at the state level. It’s not just Republicans holding back workers—it’s also the timidity of unions themselves. “There has to be a willingness to break the law as a way to highlight injustices,” Lerner says, “to show we can go on offense.”