A Supreme Court case being argued Wednesday
could take away a tactic that's kept unions alive
Josh Eidelson
On Wednesday, the Supreme Court will hear arguments on an
under-the-radar case that could deal a major blow to already embattled
U.S. unions. As Harvard labor law professor Benjamin Sachs
told the New York Times, the case now facing Antonin Scalia and company could be “the most significant labor case in a generation.”
The
case, Unite Here Local 355 v. Mulhall, involves the constitutionality
of “card check neutrality agreements” between unions and companies
they’re trying to organize. That’s the technical-sounding term for
agreements that pave the way for unionization by restricting companies
from running union-busting campaigns, and by committing companies to
recognize a union and start negotiating if a majority of workers sign
union cards, rather than holding out for a government-supervised
election. In exchange, unions can agree not to publicly shame and slam
the company – which means calling off the kind of public pressure
campaign often necessary to compel companies to sign away their
union-busting rights.
None of this would matter as much if the New
Deal National Labor Relations Act, which commits the federal government
to encourage collective bargaining (seriously, that’s
what it says),
actually ensured that it was up to a company’s workers, not its
management, whether to have a union contract. But the
government-supervised National Labor Relations Board unionization
process is, depending on your level of cynicism, either “broken” or
“fixed” against workers. It’s rife with opportunities for bosses to
delay, gerrymander and intimidate workers –
including
holding mandatory on-the-clock anti-union lectures full of ominous
“predictions” – without breaking the law. And research suggests it’s
also marked by
rampant illegality
— including alleged illegal firings in a third of election campaigns –
that’s perhaps predictable given that the worst-case scenario for
scofflaw CEOs is usually reinstating an employee months later with back
pay. Even if pro-union workers win an election, the law alone doesn’t
make corporations offer real contract concessions, and a year after the
vote workers are about as likely as not to still be without a union
contract.
In
other words, just having passively pro-union workers and a putatively
pro-union law isn’t enough to force a transfer of wealth and power to
workers. Confronted with this reality, some unions have
taken up
a range of tactics that aim to compel concessions from corporations.
The best of these are truly “comprehensive campaigns” – combining
aggressive workplace activism like strikes, non-astroturf community and
consumer pressure, and sophisticated attacks on a company’s legal,
political and media vulnerabilities. Other efforts are more anemic – a
website and a “usual suspects” press release. Most companies can tell
the difference.
And, more controversially, some campaigns are
about enticing companies as much as intimidating them – by offering
companies lobbying assistance, or pre-agreeing on how much a contract
could cost, or excluding other groups of non-union workers within a
company’s ranks. An activist identified as a Chicago health food store
cashier
predicted
to In These Times’ Arun Gupta that once the Service Employees
International Union saw the opportunity for “a win” in the fast food
campaign it’s funded and fomented, the union would “focus on it
narrowly,” and “the concern becomes: What about all the other workers
who are now mobilized, who have organized themselves, but don’t
necessarily fit into SEIU’s focus for a win?” An SEIU spokesperson told
Gupta that “community organizations that are part of the coalition and
workers continue to brainstorm and expect to experiment with a variety
of actions and strategies.”
However they end, those fast food
strikes exemplify a larger trend: Through a range of tactics, unions try
to secure recognition and contracts without retaliation or deadlock –
whether with an NLRB election in which union-busters’ hands are tied by a
side agreement, or through a promise to recognize a union once a
majority show support (“card check” or “majority sign-up”). But John
Roberts’ Supreme Court may make that harder to do, by restricting
unions’ ability to make such deals – good deals, bad deals, or
otherwise.
As the Times’ Steven Greenhouse
reported, at
issue in the Mulhall case is a neutrality agreement between a Florida
local of the hospitality workers union Unite Here and the company Mardi
Gras Gaming, in which the company agreed to card check and the union
agreed to eschew strikes and pickets, and to support a ballot initiative
on gambling. (I worked for Unite Here from 2006 to 2011 – not in
Florida – but have no inside knowledge of the case.) With help from an
anti-union foundation, a casino employee brought a lawsuit arguing that
the deal was an illegal “thing of value” that a company was prevented
under federal law from giving to union officials. An appeals court sided
against the union, clashing with two other circuits’ takes on the issue
and setting the stage for a SCOTUS decision.
“Because essentially
all successful union organizing campaigns today are conducted” under
“alternative ground rules,” professor Sachs
wrote Tuesday, “the case could effectively outlaw union organizing (at, at least, outlaw effective union organizing).”
If
the Court sides against the union, and further circumscribes a
relatively effective union tactic, it wouldn’t be the first time. In
fact, U.S. workers have repeatedly seen their best tactics hindered or
hamstrung by politicians and courts. The Taft-Hartley Act restricted
strikes, and workers’ freedom to spread their struggle through a supply
chain – the
kind of pressure
whose potency antiabortion activists demonstrated by going after the
Komen Foundation in order to hurt Planned Parenthood. Companies have
seized
RICO in an effort to get peaceful pressure tactics — like discouraging
Oprah from promoting a pork company – treated as evidence of illicit
racketeering. Now congressional Republicans are going after what
I’ve called
“Alt-labor” groups – non-union labor groups using comprehensive
campaign tactics to organize workers who legally can’t unionize or so
far haven’t – and seeking to subject them to some of the same legal
restrictions that hem in unions. Others have sought to ban companies
from recognizing unions without a government-supervised election. And,
as Greenhouse notes, the Court will also consider cracking down on
unionization of Medicaid-funded home-care workers. This is
the pattern
that led then-AFL-CIO president Lane Kirkland to pronounce in the ‘80s
and ‘90s that unions would be better off under “the law of the jungle”
than the status quo.
If the right-wing lobby’s Mulhall legal
theory were taken to its logical conclusion, AFL-CIO general counsel
Craig Becker told the Times, it “would criminalize a large swath of
ordinary, voluntary labor-management relations.” Added Becker, a former
member of the National Labor Relations Board, “The implications are
really sweeping.”
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