Happy Labor Day? The Jury is Still Out

By Jim Miller

Toward the end of June, as many liberals were cheering the Supreme Court’s unexpectedly nonpartisan legalization of same-sex marriage and its equally surprising upholding of the Affordable Care Act, they missed the signal of some potentially very bad news to come this fall.

Indeed, while it was fun to see the Republicans being frustrated by a high court of their own making, that very same court reserved the right to bring some serious pain to progressives for the long term by agreeing to hear Friedrichs v. California Teachers Association in its next session.

As Harold Meyerson recently put it:

in the term that will begin this fall, the court has a splendid opportunity to deliver the most partisan decision it has rendered since Bush v. Gore. When the court rules in Friedrichs v. California Teachers Association , which will be argued in the coming months, the Republican-appointed justices will be able, if they so choose, to create a long-term advantage for their party over the Democrats.

How so? By following up their terrible decision in Harris v. Quinn, the conservative justices can overturn the 1977 Abood case where the court ruled that public sector workers could opt out of paying for political activities but they were still obliged to pay a portion of their union dues to go toward bargaining and administering contracts. Meyerson again explains:

That obligation, the court ruled in Abood, is essential if public employees are to have an effective right to collective bargaining. If employees can benefit from union representation without funding the union, the court reasoned, the union could be weakened to the point that it couldn’t represent those employees adequately, if, indeed, at all.

Of course the only reason pubic employees have unions in the first place is because the majority of those workers voted to join the union, which is obligated to represent and to negotiate for better pay and benefits for all employees whether they like the union or not.

Thus in the name of protecting the “freedom” of those who don’t want to pay dues while still receiving the benefits of union representation, the court is likely to take away the ability of unions to effectively represent those members who want a strong voice at the bargaining table.

But the consequences of this go well beyond the bargaining power of public sector unions. The political impact, which is what this case is really about, will be devastating for anyone who wants a society where ordinary people have a voice.

Indeed, as Meyerson rightly notes:

As private-sector unions have dwindled in the face of four decades of employer opposition, public-sector unions have become the nation’s largest and most powerful labor organizations, its leading advocates for a fairer economy and, come election time, a significant source of the legwork for get-out-the-vote operations for progressive Democratic candidates. Their concerns extend well beyond their members’ immediate welfare.

Public sector unions have supported raising wages for non-union workers, protecting voting rights, expanding participation in our democracy, opening doors for new immigrants, fighting for a fair tax system, aiding community partners in social justice work, and so on. Even more importantly, they have lent a hand in voter mobilization campaigns for their own members and in communities of underrepresented voters.

That’s why this pending decision on Friedrichs is the most important labor law case in decades. If successful, the right will have made America a “right to work” country in a way that will guarantee lower wages and more poverty for American workers.

And if you think this is just a concern for unions or low-wage workers, think again. As The Daily Kos points out, the termination of agency fees and the subsequent gutting of the political power of the labor movement would mean the end of the Democratic Party as we know it: “If you think the Party is too cozy with Wall Street now, imagine what that would be like. Or if you want to enter the realm of the truly absurd, imagine a GOTV effort dependent upon the good graces of Hedge fund managers.”

Thus the road toward an even more deeply entrenched plutocracy has been clearly marked, and we may be about to take yet another big step down that grave path. And with this court that only seems to see the rights of corporate “persons,” our best hope lies with the possibility that Antonin Scalia will save us.

Yes, you read that right–that guy.

Why? As Catherine Fisk has observed, Scalia was concerned that the unions’ “statutory duty of fair representation creates the free rider problem” in a 1991 case and this might indicate that he will have the same problem now with Friedrichs.

More recently, Fisk published a piece in Scotusblog convincingly arguing why Scalia and the rest of the high court should reject Friedrichs:

The Abood rule is a reasonable compromise among the First Amendment rights and responsibilities of unions, members, and nonmembers. The union has a legal duty to represent all employees fairly, and it can charge dissenting nonmembers only for the costs of discharging that duty. While contract negotiation and enforcement involve expressive activity, Abood allows unions to collect fees from dissenters only for their fair share of the services that the law requires the union to provide to all, and not for political activity not germane to its role as bargaining agent. That does not violate the First Amendment rights of nonmembers any more than does compelled contributions to pension and health insurance companies or utility companies or paying one’s taxes.

This is sound reasoning but my money is on Scalia overcoming his previous qualms about free riders in order to take the opportunity to be the hero of the anti-union right and stack the deck against progressives for a long time to come.

As I wrote after the Harris decision, this high court is the refuge of the minority of the opulent guarding against the interests of the majority; it is a court that has made it clear they believe, along with the first justice of the Supreme Court, John Jay, that “those who own the country ought to govern it.”

Out of the Ashes of the Old: A New Union of “Invisible” Workers?

But maybe, despite all the odds stacked against unions, there is still hope. Indeed many of the most insightful observers of the trials and tribulations of the American Labor Movement concede the grim circumstances of contemporary workers inside and outside of unions, but they refuse to concede the game. In The Death and Life of American Labor: Toward a New Labor Movement, Stanley Aronowitz proposes transgressing “the rules of the current debate” by calling for an overtly class-based unionism that moves beyond the old collective bargaining model that he claims is now largely hemmed in and imagines a different kind of unionism.

Aronowitz suggests that a new workers’ movement “must be broader and more inclusive than unions . . . When unions form coalitions with community groups to fight for better educations, housing, and public transportation, or against the super-exploitation of the working poor, that shows a broader, grander conception of labor activism and suggests a basis for a new movement.”

Along those lines, he argues that unions “new and old” should “demand and provoke organization of the vast and growing population of precarious workers whether such unions are recognized by employers or not.” Such work, according to Aronowitz, should include “building alliances” with “Workers Centers and organizations, such as the Taxi Workers Alliances.”

If this sounds like a utopian project, Aronowitz answers that, “ By demanding the impossible, we make it possible.”

Elsewhere in Only One Thing Can Save Us: Why America Needs a New Kind of Labor Movement, Thomas Geoghegan writes that, “Labor is the only way to deal with the fault lines in our country’s economy,” but “In the long run, we need something fundamentally new. We need the kind of labor movement that will extend Dewey’s vision of a democratic way of life: at school, in the workplace, in the ways we treat each other.”

Among Geoghegan’s many provocative suggestions, he joins Aronowitz in arguing that unions need to move beyond the current collective bargaining model and that a key goal should be to make the right to join a union a civil right. While Aronowitz calls for abandoning the old labor-Democratic alliance, Geoghegan thinks progressives need to “create a crisis” in the Democratic Party that forces it to shift in a more populist direction.

What both Geoghegan’s and Aronowitz’s hopes are ultimately pinned on is the possibility that a new labor movement could find a way to breathe life into a broad-based struggle against economic inequality before the middle class is completely dead and American workers are left to be beggars in the neoliberal marketplace.

Finally, toward the end of his brilliant study of The Age of Acquiescence, Steve Fraser, whose book contrasts the fierce resistance to plutocracy seen in “the long 19th century” with today’s far more passive acceptance of stark economic inequality, ponders whether, “The uprisings of the working poor at fast-food chains, at car washes, inside Fortress Walmart, and at dozens of other sites may die away—or they may break through the ossified remains of the old trade union apparatus and seed the growth of wholly new organizations of the invisibles.”

Well, about a week ago, the National Labor Relations Board opened the door that might allow an army of workers long outside of the house of labor to fight for a right to join a union and improve their lot just as labor’s friends had hoped. As the Huffington Post observed:

McDonald’s, Burger King and every other company that relies on a franchise business model just suffered the legal setback they’ve been fearing for years.

The National Labor Relations Board ruled . . . that Browning Ferris Industries, a waste management company, qualifies as a “joint employer” alongside one of its subcontractors. The decision effectively loosens the standards for who can be considered a worker’s boss under labor law, and its impact will be felt in any industry that relies on franchising or outsourcing work. McDonald’s, for instance, could now find itself forced to sit at the bargaining table with workers employed by a franchisee managing one of its restaurants.

That’s a big deal. In the case of McDonald’s, roughly 90 percent of its locations are actually run by franchisees, who are typically considered the workers’ employers. One of the main reasons companies choose to franchise or to outsource work to staffing agencies is to shift workplace responsibilities onto someone else. But if a fast-food brand or a hotel chain can be deemed a “joint employer” along with the smaller company, it can be dragged into labor disputes and negotiations that it conveniently wouldn’t have to worry about otherwise. In theory, such a precedent could even make it easier for workers to unionize as employees under the larger parent company.

Indeed, as the Common Dreams headline put it, “Striking Fear Into Corporate Hearts, Labor Board Hands Big Win to Workers.”

And those on the business side agree, with the New York Times reporting:

“The decision today could be one of the more significant by the N.L.R.B. in the last 35 years,” said Marshall Babson, a lawyer who helped write the brief for the U.S. Chamber of Commerce in the case and who was a Democratic appointee to the labor board in Ronald Reagan’s presidency. “Depending on how the board applies its new ‘indirect test,’ it will likely ensnare an ever-widening circle of employers and bargaining relationships.”

So just as many in the labor movement are dreading a deathblow from the Supreme Court, the NLRB may have breathed new life into the movement. Maybe, just maybe, the reports of the death of labor are premature. And that’s good news because not only the state of labor, but the fate of our democracy, is at stake.