How To End the Tyranny of the Nonunion Workplace

To overcome right to work, we need rights at work.

Bill Fletcher, Jr. July 18, 2018

Unions will need to re-strategize in the wake of the Supreme Court's decision in Janus v. AFSCME. (Photo by Scott Olson/Getty Images)

Coun­ter­act­ing Janus involves more than state-based leg­isla­tive solu­tions that would regain some­thing akin to an agency shop. The larg­er chal­lenge is respond­ing to the con­cen­trat­ed assault on unions and work­ing peo­ple under way for decades. Under Trump, the alleged friend of the (white) work­ing per­son, this assault has increased in tem­po, from his appoint­ment of an anti-labor Nation­al Labor Rela­tions Board to his exec­u­tive orders under­min­ing fed­er­al employees.

We need a different sort of union movement: one that actively disrupts the strategy of corporate America and its right-wing populist allies.

In the 21st cen­tu­ry, we need a dif­fer­ent sort of union move­ment: one that active­ly dis­rupts the strat­e­gy of cor­po­rate Amer­i­ca and its right-wing pop­ulist allies. We must flip the script. In the face of anti-union right-to-work laws and their ilk, orga­nized labor needs to become the pub­lic cham­pi­on of rights at work laws. Such laws pro­tect all work­ers (not just those in unions). Those rights could include full free­dom of asso­ci­a­tion and free­dom of speech while at work, and, most cen­tral­ly, just cause” pro­vi­sions against unfair firings.

Work­ers live in immense fear of being fired. In a nonunion envi­ron­ment, most believe that the sit­u­a­tion is hope­less. Begin­ning in the late 1970s, with­in the employ­ment law com­mu­ni­ty (and among some trade union­ists), there was an increase in inter­est in how best to chal­lenge unjust dis­missals in nonunion envi­ron­ments. In 1977, the Mass­a­chu­setts Supreme Judi­cial Court ruled in For­tune v. Nation­al Cash Reg­is­ter that there were cir­cum­stances in which such dis­missals could be lit­i­gat­ed and, in fact, over­turned. But fur­ther lit­i­ga­tion large­ly failed as courts upheld the almost insur­mount­able sta­tus of at-will” employ­ment, which allows boss­es to fire work­ers with­out warn­ing for almost any reason.

To rem­e­dy this, in the 1980s, advo­cates tried to build sup­port among unions to cam­paign for just cause laws. Trade union­ist Rand Wil­son and I, along with oth­er advo­cates, worked to enlist Mass­a­chu­setts’ labor lead­ers, but there was an ane­mic response from unions. In 2000, Bar­bara Ehren­re­ich raised eye­brows with a piece stat­ing that, due to a lack of basic rights in nonunion work­places, cit­i­zens spend half of their wak­ing hours in what amounts, in plain terms, to a dic­ta­tor­ship.” Short­ly after, Ehren­re­ich offered a pre­sen­ta­tion to the senior man­age­ment team of the AFL-CIO. Orga­nized labor con­tin­ued to take a pass.

Var­i­ous labor union lead­ers raise the same con­cern: If just cause pro­vi­sions become law, why should work­ers join unions? The nar­row­ness lurk­ing behind such ques­tions is stun­ning. The log­i­cal con­clu­sion would be that employ­ment rights laws of any kind dis­cour­age work­ers from join­ing unions! If work­ers’ com­pen­sa­tion didn’t exist, would work­ers be bang­ing down our doors? Rather than see­ing that employ­ment rights leg­is­la­tion cre­ates a floor for all work­ers, these union lead­ers seem to per­ceive such vic­to­ries as a ceiling.

Con­sid­er the broad­er effects if unions could push through leg­is­la­tion pro­tect­ing all work­ers from capri­cious fir­ing. Such a move would not only alter employ­ment law to boost work­ers’ pow­er but also change the per­cep­tion of unions by mil­lions of nonunion work­ers. Sev­er­al years ago, the Unit­ed Auto Work­ers (UAW) tried and failed to win a con­sti­tu­tion­al amend­ment in Michi­gan cod­i­fy­ing col­lec­tive bar­gain­ing. The UAW, in my hum­ble opin­ion, mis­read the era. Much of our pop­u­la­tion knows noth­ing about unions, let alone the term col­lec­tive bar­gain­ing.” Win­ning over the elec­torate was an uphill battle.

Con­trast that with build­ing a move­ment in favor of rights at work. Every work­er under­stands that ter­mi­na­tion is the work­place equiv­a­lent of cap­i­tal pun­ish­ment. They fear it even if they are excel­lent at what they do. Unions, through such cam­paigns, posi­tion them­selves as advo­cates for work­place jus­tice. Then, when just cause laws go into effect, unions can pro­vide advo­ca­cy ser­vices in nonunion work­places and demon­strate what unions do.

Just cause advo­cates such as Wil­son have con­tin­ued to agi­tate, and the idea has recent­ly been revived. In These Times’ own Moshe Mar­vit and Shaun Rich­man have become vocal advo­cates; Rep. Kei­th Elli­son (D‑Minn.) is con­sid­er­ing fed­er­al legislation.

A cam­paign for state-lev­el rights at work leg­is­la­tion or bal­lot ini­tia­tives, par­al­lel­ing any fed­er­al efforts, could be pre­cise­ly the response to Janus that cor­po­rate Amer­i­ca would not be expect­ing … which, as any good strate­gist knows, is pre­cise­ly why it should be undertaken. 

Bill Fletch­er, Jr. is a talk show host, writer, activist, and trade union­ist. He is the exec­u­tive edi­tor of The Glob­al African Work­er, a co-author (with Fer­nan­do Gapasin) of Soli­tary Divid­ed, and the author of They’re Bank­rupt­ing Us” – Twen­ty Oth­er Myths about Unions. You can fol­low him on Twit­ter, Face­book and at www​.bill​fletcher​jr​.com.
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