U.S. labor is in bad shape. Unions have long been on the decline, and the Supreme Court rules against them regularly. So do lower courts. Much of the problem, writes Shaun Richman in his newly published Tell the Bosses We’re Coming, is that labor law is rooted in the Commerce Clause. “Tying the NLRA [National Labor Relations Act] to the Commerce Clause was a conscious ‘pragmatic’ decision of progressive lawyers [in the 1930s] to reject a half-century of a rights-based campaign for labor law…” The tactic was to get the patrician courts out of the labor law process. But, Richman argues, it has not succeeded. Employers love to have their grievances moved to the courts and this happens regularly. So now unions are stuck with decades of lousy court decisions and a playing field sharply tilted against them.
The solution, Richman argues, is to anchor labor rights in fundamental constitutional rights – the first, fifth and thirteenth amendments. His book’s appendix lists a labor bill of rights, 10 of them: Free speech; the right to self-defense and mutual aid [solidarity strikes]; the right to strike; freeing labor organizing from unreasonable search and seizure; the right to dues processing; the right not to be locked out for exercising labor rights; the right to your job; freedom from cruel and unusual regulation; the right to make demands and bargain freely; and that powers not exercised by unions are reserved to workers who act in concert.
It all sounds reasonable, but just try getting such labor rights through congress. Unions haven’t even managed to repeal the wildly reactionary 1947 Taft-Hartley Act. And they’ve been trying for decades. As a result, “unorganized workers at non-union firms experience hair-raising abuse on a daily basis.” Also, union membership continues to decline, because of simple unfairness: “much of the worst of the restrictions on union activity [are] plainly unconstitutional…It is time for unions to return to rights-based rhetoric and strategy.”
Employers have constitutional rights, but unions do not. Take the secondary boycott. Under Taft-Hartley, union members cannot boycott or picket “a company they do not work directly for but which has significant…business dealings with their employer, with whom they do have a contractual dispute.” So when Nabisco shut down a unionized plant to move Oreo cookie production abroad, Richman writes, grocery store workers could not engage in the solidarity activity of leaving “unopened boxes of scab cookies,” pressuring supermarkets to tell Nabisco of “their intention of no longer buying Oreo cookies as long as they remained the subject of a labor controversy.” Such solidarity is illegal. But corporations use secondary boycotts all the time. Cable companies, for instance, “leave television consumers in the dark” when they don’t want to pay “a rate increase for the corporate owners of the blacked-out network.” Regarding the first amendment, employers have the right to coerce workers to attend anti-union informational meetings, but unions lack such rights to present their opposing views.
Richman also argues that workers lack a right to strike in the U.S. “A true right to strike would include the right to return to the job after the strike is over.” A related problem is that intermittent strikes and partial strikes are illegal. What helped “get a union at General Motors in the 1930s is illegal today.” Effective picketing is also illegal. To correct these ills, Richman argues for industrial labor boards, first proposed in the 1930s. These would create a non-bargaining dynamic by “carving up the economy into distinct industries” and with rule-making on matters like minimum wages and paid family leave. Richman also approves of the German works council model. Both would help “normalize a system of employee rights across all work places.”
To restore the right to strike, Richman says unions should file “a ton of unfair labor practice charges,” and should insist that they “have a constitutional right to strike based on the first and thirteenth amendments.” This would counter the many difficulties caused by the Supreme Court’s “Mackay” Doctrine, which robbed unions of the right to strike. This doctrine “gave employers the legal right to permanently replace striking workers.” In so doing, the Supreme Court ignored NLRA language: “nothing in this Act shall be construed so as either to interfere with or impede or diminish in any way the right to strike.” In 1983, Richman writes, the Phelps-Dodge Corporation “weaponized” “Mackay,” creating a blueprint for “the de-unionization of American industry…in the Reagan-Bush (and Clinton) era.” And speaking of unions’ constitutional rights, the Supreme Court’s public-union-busting rule in the fairly recent “Janus” decision probably violates them. “How is forcing unions to represent workers they don’t want to, that is, to represent workers who don’t want to vote for or join a union, not compelled speech?”
This book cites other court decisions against labor, which have piled up so high that today very little of the U.S. workforce is unionized. Clearly the NLRA worked for a while, in the mid-20th century. It doesn’t anymore. Richman’s call for constitutional rights for workers and their unions is a way around this. Such a long-overdue move will require concentrated, relentless effort against predictably fierce resistance. Much of case law has roots in the idea of unions as criminal conspiracies. Much of the judiciary is virulently biased against labor. So are reactionary Republicans in congress and the white house, including Labor Secretary Eugene Scalia, a friend of large corporations if there ever was one. Labor has a big fight ahead of it, but as this book makes clear – now is the time.