May 2012, Week 5


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Tue, 29 May 2012 20:44:46 -0400
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Labor Law!
By Ursula Levelt
Newsletter of the Labor & Employment Committee
The National Lawyers Guild
May 2012
General strike in Madison!
Don’t cross the picket line to evict Occupy
protestors in Maryland!
General strike in Oakland!
It has been a long time since we have heard these calls in
the mainstream media.
The collaboration between labor and the Occupy Wall Street
movement over the past six months has seen the revival of
what were once the basic tools of the labor movement—
strikes, picketing and other appeals to solidarity. Our
experience of the last six months also reminds us, however,
that labor unions have weaker First Amendment rights
than any other organization in this country, with their most
powerful weapons subject to more state repression than
the very similar methods, such as protest rallies, consumer
boycotts, and civil disobedience, that other organizations
Occupy activists discovered this as they saw their labor allies
reluctant to go as far as they would go.  They got an object
lesson of the strength of these
limitations in the case of
Longview, where they tried to
pick up where unions could
or would not go.
It is as if last year labor woke
up, stirred, and then felt
again the chains of decades
of bad labor law.  Will this be
the occasion to finally break
these chains?  This was the
challenge the organizers of
the recent “Occupy Labor
Law!” panel in New York City set themselves.
Labor in chains
First the chains. The National Labor Relations Act protects
the right to strike—or at least some strikes—but not
strikers. Economic strikers can
be permanently replaced, while
others engaged in strikes the
Board deems unprotected can be
fired outright. The NLRB took
this line in the case of the 2006
May Day protests for immigrants’
rights, which sought to change
the law rather than making
demands on any particular
Respecting other workers’
picket lines can be just as risky:
workers who are not covered by a
collective bargaining agreement
that protects the right to refuse
to cross a picket line risk being
replaced or fired. And if the line
turns out to be a secondary one,
even good contract language will
not protect them.
The outlook is even bleaker
for public employees in those
states, such as New York, that bar
public employees from striking.
As Mario Dartayet-Rodriguez, Organizing Director for
AFSCME DC 37 and OWS activist, put it, “if a tactic is
effective, it is unlawful.”
These restrictions on workers’ rights go far beyond what
the First Amendment allows for other types of popular
protests. The NAACP’s boycott of white-owned businesses
in Port Gibson, Mississippi in support of larger political
demands is a case in point: the Supreme Court not only
held that the boycott campaign was protected by the First
Amendment, but made it clear that protesters did not lose
this protection simply because of isolated acts of violence
or inflammatory language. NAACP v. Claiborne Hardware
Co., 458 U.S. 886 (1982). But the Court also quoted
with approval the Fifth Circuit’s decision, which drew a
distinction between the “public issues” at stake in that case
and the “parochial economic interests” involved in a purely
economic boycott.
This gap between workers’ rights and civil rights has led
to similar differences between labor and the Occupy
movement. Calling on New York City workers to respect
a picket line at an Occupy encampment is tantamount
to asking them to risk their jobs. Similarly, while dock
workers in Oakland would have liked to shut down the
port in solidarity with the workers in Longview who had
a dispute with EGT, a grain shipper
seeking to open a non-union facility
in Longview, Washington, that
likely would have been a secondary
strike, against which the law allows
employers to seek damages and
injunctive relief.
Occupy activists recognized no such
limits and proceeded to shut down
the port on November 2nd and
December 12th. While differences
between labor and Occupy over
tactics and decision-making methods
were sometimes sharp, the Occupy
activists’ ability to defy or avoid the
worst parts of federal labor law gave
them the freedom to act that labor
did not have—and may have helped
win the battle with EGT.
We can expect employers to start
attacking the Occupy movement
when it mobilizes in support of
workers’ rights—as they already have
done in the case of workers’ centers.
As E. Tammy Kim of the Urban
Justice Center pointed out, workers’
centers, just like unions, have had to defend themselves
against frivolous lawsuits alleging RICO, conspiracy,
extortion, and defamation claims. While New York has
enacted an anti-SLAPP statute to protect free speech
activities from this sort of harassment, the law has been
so denatured by the courts as to lose its effectiveness; at
the same time, workers’ centers are not protected by New
York’s “little Norris-LaGuardia Act.” The results are just
what you would expect: just as federal courts did ninety
years ago, state courts have enjoined workers’ centers from
engaging in First Amendment activities without even
holding a hearing on the claims against them.
But as bad as the situation may be for workers’ centers, an
anecdote related by Kim shows how much worse they are
for unions. An employer charged Restaurant Opportunities
Center of New York with engaging in recognitional
picketing and demanding recognition without proof
of majority support when it organized demonstrations
protesting employers’ violations of the law and demanded
that they enter into negotiations to settle employees’ EEOC
claims. Those charges required, of course, proving that
ROC-NY was a labor organization—and therefore subject to
all of the limitations of the NLRA.  ROC-NY still had some
freedoms as long as it was not covered by the Act.
Breaking the chains
So here we are: unions that do not have the same free speech
rights as others, unions whose mass mobilizations will be
enjoined, union members who risk their jobs if they show
solidarity with fellow workers. People power, the power of
numbers, the power to disrupt severely restrained when
exercised by unions.
Meanwhile another form of power is being freed from
almost every restriction. As Citizens United reminds us,
money talks.
But can we use this same decision to allow unions to speak
through people power? As Bennet Zurofsky argues, the
two justifications for treating the NLRA’s ban on secondary
picketing—(1) that picketing is inherently coercive and (2)
that unions’ speech is merely economic speech have been
undermined by recent decisions from the Court’s rightwing
Is picketing inherently coercive? It depends on who is
doing the picketing. A human rights activist walking back
and forth in front of a shoe store with a picket sign stating
“Nike™ products are made by sweatshop labor! Don’t shop
here!” is exercising free speech, while a union activist with
the same picket sign relating to a primary dispute with
Nike™ is breaking the law.
It is impossible to avoid the obvious conclusion: the NLRA’s
ban on secondary picketing is a restriction on free speech
that discriminates on the basis of the identity of the speaker
and the content of the message. That is, of course, what
the Supreme Court found unconstitutional in the Citizens
United decision: “We find no basis for the proposition that,
in the context of political speech, the Government may
impose restrictions on certain disfavored speakers.... The
Government may not by these means deprive the public of
the right and privilege to determine for itself what speech
and speakers are worthy of consideration.”
The alternative justification for Section 8(b)(4)—the
supposed distinction between issues of public concern and
unions’ “parochial economic interests”—is just as shaky. The
Supreme Court delivered another blow to that distinction
in Sorrell v. IMS Health Inc., 564 U.S. __,131 S.Ct. 2653
(2011), in which it overturned Vermont’s ban on selling
data relating to the prescription practices of doctors. While
it is hard to imagine a more parochial interest than that of
pharmaceutical companies that want to know how to sell
more drugs to doctors, the Court elevated that to the level of
protected speech.
Has the time come to take a secondary picketing case to
the Supreme Court? Even if the challenge does not succeed,
given the composition of the Court, it might give the Court
an opportunity to reverse or limit the impact of the antidemocratic horror show called Citizens United.
Restoring the right to strike
But what about private sector employers’ ability to punish
workers for exercising their statutory right to strike, be
it an intermittent, sympathy or political strike? The First
Amendment will not help us here, since it requires some
showing of state action.
Yet there is that one Amendment that directly addresses
what employers may not do: the Thirteenth, which bars
slavery and involuntary servitude. This Amendment speaks
to the foundation of the labor system desired by the nation:
one in which workers engage in the free exchange of their
labor for wages. Over time this freedom has come to be
reduced to the right to quit one’s job, but that was not how
Samuel Gompers saw it: for decades he trumpeted the
Thirteenth Amendment as “the glorious labor amendment”
which protected workers’ rights to organize. Panelist Jim
Pope from Rutgers University made Gompers’ argument
again: the right to quit is a hollow freedom when basic needs
are at stake and no alternatives are available.
From the time of adoption of the Thirteenth Amendment,
courts and Congress have acknowledged that in order
to have a truly free market in labor, it was necessary for
workers to act together. And acting together includes
withdrawing one’s labor together to protest conditions at
work or in society at large, wherefore the right to strike.
In Pollock v. Williams, a Thirteenth Amendment case from
the 1940s, the Supreme Court recognized that without
organization there is no “power below” to redress and
no “incentive above” to prevent “a harsh overlordship or
unwholesome conditions of work.” Harsh conditions should
be modified by the market but the market will only do so if
workers have the power to strike. Why would the right to
strike (without replacement workers) be considered more
coercive than the right of an employer to move a plant?
Pope also reminds us that in Gompers’ time this right
existed in people’s minds even if not in actual case law. Just
as a right does not exist if we do not use it, it cannot exist if
Occupy Labor Law!  (continued)
we do not claim it. As the Supreme Court’s recent decisions
on the Second Amendment show, the Constitution
becomes what the people make of it, even in the hands of
And then there is civil disobedience: intentionally breaking
a law because it is unjust or to call attention to a larger
cause. Last Fall saw thousands of arrests of protesters
refusing to disperse at police orders. But the legal
consequences are far heavier if a labor organization were
to engage in this sort of concerted civil disobedience—or
even if its members acted without its authorization. The
Union is not only denied the right to act, but held liable
even if it does not act.
We are at a crossroads. We should seize the opportunity to
challenge existing labor law everywhere we can, push the
cases, appeal the Board decisions, make the constitutional
arguments as many times and as long as it takes. We
should speak of workers’ right to free speech and freedom
of association as Constitutional rights—and attack the
restrictions on those rights, such as the Taylor Act’s
prohibition against public employee strikes, as a denial
of workers’ human rights, as the ILO has held. While we
are at it: let’s also start limiting those ubiquitous no-strike
clauses that make unions enforcers for the employer.
But words without deeds are not enough. How many
immigrant strikers lost their jobs after May Day 2006? How
much did the threat of future confrontations contribute to
the settlement of the Longview dispute? If there is a real
mass mobilization, then we can win the argument where it
counts—in the workplace and the streets. Our voices, our
bodies, our actions have power—let’s use them.


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