It’s Time for the Labor Movement To Pursue a New Judicial Activist Agenda

Shaun Richman

Scalia's passing opens opportunities—and questions—for the labor movement.

Unions that were bracing for a major defeat in Friedrichs v. CTA breathed a sigh of relief following the death of Supreme Court Justice Antonin Scalia. He was expected to be the decisive fifth vote against the California Teachers, and the outcome likely would have severely weakened American public sector unions. But Friedrichs likely died with Scalia.

More than a respite between anti-union attacks, this moment is an opportunity for a new judicial activism by the labor movement to win new rights and benefits and to match the planning and aggressiveness of the right-wing plot to kill unions.

Moshe Marvit detailed in these pages how Friedrichs was part of a grander scheme of right-wing litigation aimed at destroying unions. Well-heeled union-busters strategically lodge lawsuits to line up Supreme Court appeals that build on precedents like Harris v. Quinn and the now never-to-be Friedrichs, confident of a 5-4 vote in their favor.

Heretofore, unions have mostly limited their own judicial advocacy to stopping these attacks. With the Supreme Court now poised to tilt to a liberal majority that will last a generation, it is time for labor to develop its own judicial activist agenda. Ironically, a decision for the bosses in Friedrichs could have had the confounding effect of granting unions new 1st Amendment rights we have long been denied. Now, we have the opportunity to advance our own agenda to make union activity constitutionally protected free speech.

The judge can drop dead in his black robes.”

The sad legal fact that corporations are people” with free speech rights is well known, but you may be surprised to learn that unions enjoy no such rights. In order to get past the last most conservative Supreme Court, the 1935 National Labor Relations Act (NLRA) was constitutionally rooted in the Commerce Clause — not the Bill of Rights. Long before that, judges were hostile to the country’s first union efforts, treating strikes and boycotts as unlawful restraints of trade. The judiciary spent the 19th century building up a body of case law that regulated labor as a commodity and prioritized contracts, property rights and the smooth flow of commerce over the free speech and free assembly of working people.

Law professor William Forbath wrote a book on the topic that is essential reading for anyone who wants a deeper understanding of why American unions behave the way they do. Law and the Shaping of the American Labor Movement details not just the bad body of case law that metastasized in the Gilded Age, but also the development of the voluntarist instinct that still runs deep in the veins of our movement.

Prior to the NLRA, both conservative and radical unions wanted to get government and the courts to butt out of labor relations. To this day, most unions shy away from pursuing rights and benefits that cannot be won at the bargaining table.

In one of the sharpest analyses of labor’s prospects following Scalia’s death, Joe Burns reminds us of how labor leaders once railed against judge-made law” and warns, As long as labor allows nine establishment figures to dictate policy, we will never revive ourselves as a movement.” Most judges are too far removed from the lives of the working class to be reliable advocates for unions. And, as professor James B. Atleson argues in his book Values and Assumptions in American Labor Law, the primacy of business interests is a pervasive ideological influence on labor case law.

Take the original sin of judicial gutting of the NLRA, 1938’s NLRB v. Mackay Radio, which gave employers the right” to permanently replace strikers despite the Act’s explicit protection of strike activity and literal ban on termination of union activists. That decision was based not on previously existing case law, or any attempt to divine legislative intent — just the justices’ tossed off assumption that of course” employers should be free to hire new permanent employees in order to ensure their right to continue to run their business during a strike.

Labor law is currently so far removed from the First Amendment that the Court has ruled that workers can be legally fired under the Act for making disloyal” statements about the employer’s product in the course of a union campaign. (Any organizer who’s run a corporate campaign has lost precious days of her life arguing with union lawyers about whether a lit piece runs afoul of the NLRB v. Electrical Workers Local 1229 (Jefferson Standard) decision (which was, for the record, written by a Harry Truman appointee).

So Joe Burns is right. In pursuing a new judicial activist labor agenda, we should not view judges as our saviors — or even as our allies. The best analogy I would make for a judicial activist labor agenda would be the civil rights movement of the 1950’s and 1960’s. During that movement, an army of civil rights attorneys found the right plaintiffs and facts and guided cases like Brown vs. Board of Ed through the courts. But it was sit-ins, boycotts and marches that changed the political context in which the cases were decided. A judicial activist agenda for labor will not be successful without a substantial increase in worker protest activity.

In pursuit of free speech, choice and solidarity

A good example of what currently passes for judicial activism in labor is a recent petition filed by 106 leading scholars at the National Labor Relations Board (NLRB), seeking reinstatement of an equal time rule for mandatory on-the-clock anti-union presentations.

The idea itself is brilliant. Co-petitioners Charles Morris and Paul Secunda noticed that the NLRB has been on the record for the last half century as soliciting union advocates to make a case that when a boss requires employees to attend an anti-union lecture in the run-up to a union election, and denies union organizers access to the workplace, it is at least grounds for overturning an election result, if not an outright unfair labor practice.

As outsider advocates, Morris, Secunda, et​.al. could only file an advisory petition, which the NLRB is free to ignore for, well, forever. Actual judicial activism requires a union challenging the results of a lost certification election in which an employer used mandatory captive audience meetings while physically restraining union organizers from access to the workers and the workplace. Nearly every union has seen such meetings used against them in organizing drives; one of them should seek to overturn a union election’s result and cite Morris and Secunda’s brief in their appeal. The Board must rule on the request.

To keep up the pressure, many unions should do the same. There is, unfortunately, no shortage of election losses to appeal. Once the first employer refuses to comply with an equal time rule, we’ll be off to the races with a free speech labor law case.

The NLRB is currently ignoring another petition filed by Charles Morris, seeking confirmation of the brilliant thesis he laid out in his 2005 book, The Blue Eagle At Work: The labor act was not written with the intention that the only way a union could be certified was by winning a winner-take-all election to represent all workers in a bargaining unit. In the early history of the NLRB, unions filed card check petitions to represent their members only. If unions were able to file such petitions for only part of the workforce in a given workplace today, millions of workers who want a union would gain rights on the job right now, and unions would win footholds in thousands of new workplaces.

But instead of demanding such representation as a right, unions are waiting for permission from the courts. Someone has to press the case.

I have an idea that will make my former colleagues at the AFT’s heads explode. There are currently half a dozen unions competing to represent adjunct faculty. It is common for the same workers to belong to different unions at multiple institutions of higher education. It is also common for them to want to organize their additional non-unionized schools, and to have a strong preference, based upon experience and membership, for which union it should be. Therefore, it would be reasonable for one union that gets wind that another is organizing a targeted school to rush a members-only petition to the NLRB.

This would be a helpful set of facts for re-establishing a Blue Eagle precedent. Since unions win most adjunct faculty elections, this won’t look like a shortcut to otherwise-impossible majority status (like a failed effort by the Steelworkers at a Dick’s Sporting Goods during the Bush administration). And whether the NLRB refuses to issue a members-only certification, or an employer refuses to comply with one, it gets into federal court pretty quickly. Now, I’m no lawyer (I just argue with a lot of them), but it seems to me that the legal case is that an arm of the government is interfering with the First Amendment rights of workers by restricting legal recognition of their union to only the form and choice it dictates.

To be clear, a win in a case like this could radically transform unions. Members-only certifications could undermine the principle of exclusive representation and, with it, the agency fees that unions collect from all represented workers to compensate for the expenses of having to represent everyone in a workplace. As I have written, there is both promise and peril in that trade-off.

The ultimate goal of a judicial activist agenda must be restoring solidarity rights. In a complex economy made up of suppliers, subsidiaries and franchises, unions are banned from extending a dispute with their employers to the so-called secondary” employers who profit from and help make profitable an unfair business.

What is the difference between a cable company blacking out a sports channel to demand more money, a liberal boycott of NBC and its advertisers demanding that the racist reality television personality Donald Trump be fired and a campaign for people to stop eating at restaurants that profit from the exploitation of workers in the food supply chain? The only difference is that if the latter is conducted by a union, they could be sued for triple the economic damages of the boycott.

In the Friedrichs oral arguments, Chief Justice Roberts said, It’s all money,” when it comes to unions’ free speech — tempting grounds for challenging the ban on secondary boycotts as the case law on solidarity activism has always emphasized money without even considering speech. Finding a test case is tricky. Triple damages could utterly bankrupt a union, so understandably no union is eager to risk that.

For this reason, the food supply chain boycott work I described earlier is currently run not by unions, but by workers centers like Brandworkers and the Coalition of Immokalee Workers (who are not exactly sitting on millions of dollars). If sued, perhaps they could mount a fight on constitutional grounds?

Worth renewed consideration is a 2004 proposal from the American Federation of Teachers for labor to sponsor new start-up unions” that might enjoy greater strategic and tactical flexibility and would have substantially less to lose.” That was proposed during the debate on union form and structure that preceded the Change to Win split in the labor movement, and, sadly, promptly forgotten. But it is more relevant than ever. Providing seed money to start-up unions” that can challenge, break and resist unjust labor laws could be very wise investment of the Scalia dividend,” the revenue unions were expecting to lose post-Friedrichs that now represents found” money for new organizing.

The whole damn system is out of order!

To be at all successful, a judicial activist agenda must be joined by many more labor lawyers, scholars and organizers calling out unjust areas of labor law and proposing plans to defy them — even if it ruffles some feathers. We also need more people writing about how unfair the system is; it does help inexorably shift public opinion about the need for change.

It’s worth noting that this agenda will require suing — or being sued by — the NLRB, which has quietly become a functional agency for workers rights of late. Just as Obama’s Justice Department declined to defend the Defense of Marriage Act while a party to court challenges against it, perhaps the NLRB could signal that the interesting constitutional questions raised by unions are worthy of judicial consideration?

Labor law, and the rules of the system, are rigged against workers. This call for a judicial activist agenda for labor is explicitly a call to question, challenge and break the law where it works against us. In so doing, we will be breaking up what remains of labor peace and helping foment more of the only thing that will save us: chaos, strife and unrest.

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Shaun Richman is a labor expert at SUNY Empire State College and author of Tell The Bosses We’re Coming: A New Action Plan for Workers in the 21st Century.

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