A New Bill of Rights for Workers: 10 Demands the Labor Movement Can Fight for and Win

Now is the time for unions to rewrite the rules.

Shaun Richman September 1, 2017

Hundreds of supporters accompany transport union president Roger Toussaint across the Brooklyn Bridge in April 2006. (Spencer Platt/Getty Image)

On a cloudy after­noon in April 2006, Roger Tou­s­saint led a pro­ces­sion of union work­ers across the Brook­lyn Bridge. Tou­s­saint, pres­i­dent of Trans­port Work­ers Union Local 100 and an immi­grant from Trinidad and Toba­go, was on his way to sur­ren­der him­self to the author­i­ties to serve a 10-day jail sen­tence. His crime? He led the large­ly Black and Lati­no union mem­ber­ship in a 60-hour strike the pre­vi­ous win­ter, shut­ting down the city’s sub­way and bus sys­tem in vio­la­tion of a judge’s injunc­tion and New York’s 1967 Tay­lor Law, which bans pub­lic-sec­tor strikes.

Unions must reverse a half-century-long strategy of avoiding the courts and mount legal and political challenges to labor laws that infringe on workers’ speech, curtail their bargaining power and deny them the right to extend solidarity to fellow workers.

The court also slapped the union with a $2.5 mil­lion fine and sus­pend­ed its abil­i­ty to col­lect dues for a year. Indi­vid­ual strik­ers were fined two days’ pay for each day on strike.

Pun­ish­ments this dra­con­ian are rare out­side the world of labor law. Tou­s­saint saw more jail time than any of the top bank exec­u­tives respon­si­ble for the 2008 finan­cial crisis.

To change the law — and the bar­ri­ers to orga­niz­ing the law pos­es — we have to change the way we think about it. The sweep­ing 1935 Nation­al Labor Rela­tions Act (NLRA) and the many local laws it spawned are not the source of work­ers’ rights to organize.

Rather, those rights are root­ed in the Con­sti­tu­tion through the rights of free speech and equal pro­tec­tion, as well as free­dom from invol­un­tary servi­tude. Labor laws sim­ply reg­u­late those con­sti­tu­tion­al rights, much as elec­tion laws reg­u­late the right to vote. And just as restric­tive vot­er ID laws can vio­late cit­i­zens’ vot­ing rights, bad labor laws can tram­ple work­ers’ rights. While cor­po­rate per­sons” have estab­lished free speech rights, for exam­ple, a union— a col­lec­tion of actu­al per­sons — has no sim­i­lar­ly rec­og­nized pro­tec­tions. This dis­par­i­ty would, in turn, seem to vio­late the 14th Amend­ment right to equal pro­tec­tion under the law.

Unions must reverse a half-cen­tu­ry-long strat­e­gy of avoid­ing the courts and mount legal and polit­i­cal chal­lenges to labor laws that infringe on work­ers’ speech, cur­tail their bar­gain­ing pow­er and deny them the right to extend sol­i­dar­i­ty to fel­low work­ers. This is a long-term strat­e­gy, one made longer-term by the inabil­i­ty to appoint pro­gres­sive fed­er­al judges in the near future. But if we are ever to restore key pro­tec­tions for labor, we need to demand a work­ers’ bill of rights.

In a July report for The Cen­tu­ry Foun­da­tion, I pro­pose 10 such rights, as well as strate­gies to advance them that can be adopt­ed by both union offi­cials and rank-and-file workers. 

The first record­ed court case involv­ing work­er orga­niz­ing in the Unit­ed States dates back to Thomas Jefferson’s sec­ond term. Shoe­mak­ers pick­et­ing for high­er wages were con­vict­ed of using threats, men­aces and oth­er unlaw­ful means” to main­tain a conspiracy.

That set the tone for jurispru­dence of work­ers’ rights in the new repub­lic, where con­ser­v­a­tive jurists treat­ed union orga­niz­ing as a crim­i­nal activ­i­ty. As a result, unions spent the 19th and ear­ly 20th cen­turies decry­ing judge-made law” and demand­ing the cod­i­fi­ca­tion of their rights.

These demands result­ed in a land­mark vic­to­ry. The 1935 NLRA encour­aged col­lec­tive bar­gain­ing by estab­lish­ing a fed­er­al agency, the Nation­al Labor Rela­tions Board (NLRB), to cer­ti­fy the exis­tence of a union at a work­place and sanc­tion employ­ers who refused to deal with a bona fide union.

Anoth­er point of the NLRA was to keep labor dis­putes out of the courts. Most unions have stuck with the intent of the Act and shied away from pur­su­ing rights and ben­e­fits that can­not be won at the bar­gain­ing table. Employ­ers have shown no such ret­i­cence. They’ve attacked work­ers’ rights in the courts since the day the NLRA was passed, steadi­ly chip­ping away at hard-won protections. 

A fun­da­men­tal flaw in the Act opened the door to these suc­cess­ful attacks. The NLRA’s author­i­ty derives from the Constitution’s com­merce clause. Legal experts at the time argued that this fram­ing had the best shot at with­stand­ing legal chal­lenges under a Supreme Court hos­tile to New Deal legislation. 

Rep­re­sen­ta­tives of the Amer­i­can Fed­er­a­tion of Labor (AFL) had, instead, pushed hard to base the Act on the 13th Amend­ment, which banned slav­ery and invol­un­tary servi­tude. The AFL’s Andrew Furuseth warned of set­tling for short-term leg­isla­tive gains while leav­ing unset­tled the legal ques­tion of whether or not that man or woman shall have a right to com­bine with oth­ers for the pur­pose of … doing col­lec­tive­ly what you can’t do individually.” 

His con­cern proved pre­scient. The NLRA’s ground­ing in the com­merce clause means that when labor dis­putes go to court, they are judged by their poten­tial impact on busi­ness. The last half-cen­tu­ry has demon­strat­ed that, by this yard­stick, the courts con­sis­tent­ly sym­pa­thize with busi­ness inter­ests. As a result, unions are ham­pered by rules that would nev­er be applied to cor­po­ra­tions, or to any oth­er form of polit­i­cal action.

Con­sid­er what hap­pens when work­ers decide to form a union. The rules of union cer­ti­fi­ca­tion elec­tions, set by a series of unfor­tu­nate court cas­es and NLRB deci­sions, per­mit employ­ers to force work­ers to attend vote no” pre­sen­ta­tions or be fired. 

In a 2009 study, Cor­nell University’s Kate Bron­fen­bren­ner found that employ­ers uti­lized these cap­tive audi­ence meet­ings in nine out of 10 union elec­tions. Employ­ers threat­ened to cut wages and ben­e­fits in 47 per­cent of doc­u­ment­ed cas­es, and to go out of busi­ness entire­ly in 57 per­cent of cas­es. In one in 10 instances, boss­es actu­al­ly hired goons to imper­son­ate fed­er­al agents and lie about the process. Not sur­pris­ing­ly, unions lose 57 per­cent of elec­tions when employ­ers run these cap­tive audi­ence” meetings.

Iron­i­cal­ly, cor­po­ra­tions have argued for — and won — the right to hold these meet­ings on the grounds of their First Amend­ment rights as per­sons.” Yet union advo­cates pos­sess no equiv­a­lent right to hold their own vote yes” meetings.

The cap­tive audi­ence meet­ing is but one of many areas in which labor law favors employ­ers. Work­ers form unions because they want a say on the job. Yet employ­er-friend­ly court deci­sions have cre­at­ed a dis­tinc­tion between manda­to­ry” and per­mis­sive” bar­gain­ing issues. Employ­ers are required to bar­gain over the for­mer, but can legal­ly tell the union to go to hell when it rais­es the lat­ter. Labor law thus removes from the bar­gain­ing table many of the issues that mat­ter most to work­ers, includ­ing the deci­sion to down­size, sub-con­tract or shift work overseas.

The exist­ing labor law régime even cir­cum­scribes sol­i­dar­i­ty, the lifeblood of unions. An injury to one is the con­cern of all” is one of the old­est pre­cepts of the labor move­ment, yet it is ille­gal for unions and work­ers to offi­cial­ly join oth­ers’ strikes and boycotts.

Cor­po­ra­tions, by con­trast, engage in so-called sec­ondary boy­cotts all the time. Cable providers, for exam­ple, black out tele­vi­sion chan­nels to protest a network’s rate increase, instruct­ing view­ers to call the net­work CEO to com­plain. Why are sec­ondary boy­cotts legal when used by media com­pa­nies for prof­it, but ille­gal when exer­cised in sol­i­dar­i­ty by workers?

Unions have been play­ing defense for so long, they tend to accept the rigged rules. But a fresh look at the body of labor law reveals many restric­tions on union activ­i­ty to be con­sti­tu­tion­al­ly suspect.

There are sev­er­al are­nas where unions can advance a rights-based agen­da. First, they can push the NLRB for rule changes. A group of lead­ing labor schol­ars is cur­rent­ly peti­tion­ing the NLRB to re-estab­lish a rule guar­an­tee­ing equal time for pro- and anti-union pre­sen­ta­tions in the work­place. Trump’s Repub­li­can-dom­i­nat­ed NLRB won’t be sym­pa­thet­ic. The next Demo­c­ra­t­ic NLRB should be keen­ly aware of what a lim­it­ed win­dow for action it may have. 

In some cas­es, unions must be pre­pared to defy NLRB orders and push key ques­tions into the courts. Labor groups might start by chal­leng­ing the exces­sive restric­tions on sig­nal pick­et­ing (efforts to embar­rass unfair employ­ers with­out an explic­it call for a boy­cott). Nox­ious hate groups such as the Ku Klux Klan and the West­boro Bap­tist Church have seen their pick­ets vig­or­ous­ly defend­ed by the courts. Unions should argue that to restrict sig­nal pick­et­ing is to vio­late work­ers’ First and 14th Amend­ment rights. 

Of course, labor can’t rely on the courts and the fed­er­al gov­ern­ment to save it. Advanc­ing a work­ers’ bill of rights will also require protest and direct action, but this must be com­ple­ment­ed by new legal and polit­i­cal strate­gies. When­ev­er pub­lic-sec­tor unions defy state-lev­el no-strike laws, as the New York City tran­sit work­ers did in 2006, they should seek fed­er­al injunc­tions to stop the state from issu­ing crip­pling pun­ish­ments, argu­ing for their right to strike on First and 13th Amend­ment grounds. 

In all of these are­nas, labor must be will­ing to make bold demands. The NLRA was draft­ed and passed with­in a mat­ter of months, in part because it reflect­ed the rights-based agen­da that labor advanced for decades.

It is time for unions to return to demand­ing work­ers’ rights with­out apology. 

Shaun Rich­man is an In These Times con­tribut­ing writer and the Pro­gram Direc­tor of the Har­ry Van Ars­dale Jr. School of Labor Stud­ies at SUNY Empire State Col­lege. His Twit­ter han­dle is @Ess_Dog.
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