Labor’s Future

Shaun Richman has a very interesting and deeply thought out proposal for a Labor Bill of Rights that is well worth your time. It all makes sense as a labor and legal strategy for pushing for a reinvigorated labor movement.

Here are the ten principles

The Right to Free Speech
The Right to Self Defense and Mutual Aid
The Right to Strike
The Right to Organize Free from Unreasonable Search and Seizure
The Freedom From Taking Away Union Fees
The Right to Not Be Locked Out for Exercising Labor Rights
The Right to a Job
Freedom from Cruel and Unusual Regulation
The Right to Make Demands and Bargain Freely
Powers Not Exercised by Unions Are Reserved to Workers Who Act in Concert

Just as an example, I will quote one of the discussions here and then leave the rest for you to peruse.

Labor’s Fourth Right: Labor Organizing Efforts Should Be Free from Unreasonable Search and Seizure

On a Fall day in 2008, the figurative autumn of the presidential administration of George W. Bush, officials at the Service Employees International Union (SEIU) inked an organizing rights deal for employees of the global security firm G4S. These sorts of agreements are an essential tool for workers to freely and fairly choose whether or not to be represented by a union. This is doubly true for security workers who are statutorily barred from seeking a union certification election with the National Labor Relations Board, if they are joining a union that also represents non-guards.

The agreement was the culmination of a years-long campaign run by a global coalition of unions. Faced with a pressure campaign that transcended national boundaries, G4S zeroed on where they had the most power to undermine its general thrust: the U.S. legal system. Specifically, the company filed a civil lawsuit against SEIU under the Racketeering Influenced and Corrupt Organizations Act (RICO).29

More and more organizing and counter-organizing occurs outside the context of traditional labor organizations, and outside the context of the NLRB.30 To be successful, many unions engage in what are called “comprehensive campaigns,” which may utilize legal and regulatory challenges aimed at creating liabilities for employers and interfering in complex business deals to augment worker activism.

Through statutes such as the Fair Labor Standards Act (FLSA) or Title VII, courts can offer workers a better chance to remedy workplace violations. Current labor law reform legislation in Congress, such as the Employee Empowerment Act and WAGE Act, seek to expand workers’ access to courts for labor violations. But however much there is an advantage to access to the courts, they can also present a host of new problems.

Two major areas where court proceedings have been used against workers include the RICO Act to go after unions engaging in comprehensive campaigns, and a host of abusive litigation tactics against workers seeking to vindicate their workplace rights in court, particularly “strategic lawsuits against public participation” (SLAPP) suits.31 Both sets of tactics have the intended purposes of chilling organizing activities by those with superior access to resources, and both should be pushed back against.

If workers are to have meaningful workplace rights, they cannot be subject to RICO and SLAPP suits for exercising those rights.

These cases are almost always without merit, but they can tie up a tremendous amount of a union’s money and staff attention in getting them dismissed. Indeed, the G4S RICO suit was hardly the only one darkening the skies over SEIU at the time. The global solidarity campaign did eventually put enough pressure on G4S to bring them to the table with SEIU. But the equal pressure of the RICO suit gave the company a bargaining chip to get the union to settle for a deal that protected fewer workers than the union had sought to organize (and fewer, comparably, than their foreign counterparts). As one corporate attorney told the New York Times about their use of RICO suits to get settlements from the union, “When they settle it normally breaks the campaign.”32

Although the deal involved a commitment by G4S to withdraw the RICO suit, that proved to be an unnecessary concern. A federal judge moved to dismiss the meritless case just hours after it was already withdrawn.

The use of RICO suits against labor is not merely an expensive distraction; it also is “an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies.”33 Recognizing that organized crime had become “a highly sophisticated, diversified, and widespread activity that annually drain[ed] billions of dollars from America’s economy by unlawful conduct and the illegal use of force, fraud, and corruption,” Congress passed RICO with the purpose of “seek[ing] the eradication of organized crime in the United States.”34 However, starting in the 1980s, employers began using civil RICO to attack labor. The purpose of such suits is often to destroy effective comprehensive campaigns.35

Employer use of RICO suits when unions are trying to organize a workplace using a corporate campaign treats legitimate organizing tactics as coercive or extortionate,36 and assigns a property value to the free speech and assembly of a civil rights organization. These suits not only expose unions and union officials to major liability, but also link unions with criminal activities. Anti-union groups such as the National Right to Work Committee then promote these suits to further that linkage, and preserve the notion that unions are criminal organizations.

The malicious prosecution of labor is not limited to RICO suits; it is also used in SLAPP suits. The term “SLAPP suits” stems from an influential study that resulted in a book and series of papers that sought to identify a growing trend where citizens and groups were being sued for engaging in a variety of political or other conduct.37 These activities were as diverse as circulating petitions for signatures to reporting police misconduct, with the purpose of the suits being to silence opponents and dissuade certain conduct.38

Whereas early SLAPP suits were most common in zoning and other land use disputes, their use by employers has been growing.39 Hallett provides an example of such suits that is becoming all-too common where in response to a lawsuit by temporary guest workers that alleged involuntary servitude, wage theft, and other employment law violations, the employer filed counterclaims for “defamation/libel, invasion of privacy, tortious interference with business relations, intentional infliction of emotional distress, abuse of process, and civil conspiracy.”40 These tactics are, in many respects a modern-day continuation of employers using the courts as a weapon against workers.41

Workers have some limited protections in the form of the anti-SLAPP suits passed by a variety of states, but Hallett proposes the creation of a labor organizing privilege that would shield communications made between workers in the context of organizing. But these do not offer robust protection against attacks using the courts because not all states have such statutes.42

Courts recognize the need to protect privileged communications between attorneys and clients, priests and penitents, physicians and patients, between spouses, and others. By placing communications in the privileged camp, they become free from the fear of SLAPP suits and other forms of intrusion. In determining whether a communication should be privileged, and exempt from disclosure, the test developed by legal scholar John Wigmore is usually applied. This test requires that:

The communications must originate in a confidence that they will not be disclosed.
This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
The relation must be one which in the opinion of the community ought to be sedulously fostered.
The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.43

Based on this test, some jurisdictions have recognized a privilege protecting communications with a union representative.44 Hallett goes one step further in arguing that the Wigmore test and other societal factors show that a labor organizing privilege should be recognized. Such a privilege “would be held by the worker and would protect communications concerning organizing or collective bargaining between two or more workers, or between workers and their representatives.”45 The courts have granted broad managerial discretion to the physical workspace, but labor should push back against intrusions and after-the-fact surveillance on worker communications.

How to Restore This Right

Section 7 of the NLRA protects workers rights to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” and Section 8(a)(1) categorizes employer surveillance as an unfair labor practice.46 Unions could file Unfair Labor Practices against employers that file meritless RICO civil suits, and an activist NLRB could deem the practice to be a violation of the labor act and possibly go to court to enjoin RICO suits from interfering with workers’ federally protected rights.

To have an arm of the government joining with a union to get a meritless RICO suit dismissed would be quite powerful. Having such an ally in the proceedings could open a space for unions to argue that the twisted misuse of RICO is a violation of their First Amendment rights of free speech and assembly and of workers’ Thirteenth Amendment right to be free from involuntary servitude.

So all of this makes a lot of sense. In an ideal world it does anyway. My only skepticism about these legal strategies is where I think the labor movement is headed in terms of the government. Basically, we are heading back to the Gilded Age, where courts routinely rule against anything at all that would help a union. In that era, judges, including on the Supreme Court, had no problem at all completely ignoring a law such as the Sherman Anti-Trust Act that was passed to limit monopoly when it applied to corporations but would create new meanings for that law to declare that union actions such as boycotts were a combination to unlawfully restrict trade. And even when the Clayton Anti-Trust Act was passed to alleviate this problem, the Court rendered it largely ineffective in terms of how it helped labor and Samuel Gompers and other architects of it were very disappointed.

It’s pretty clear that Reasonable Moderate Sam Alito will rule against unions in any and all cases. Not only does he have this record, but his sister Rosemary Alito is an anti-union lawyer for a leading union-busting firm. It runs in the family. I think we know how he would rule on Lochner, not to mention Friedrichs. Neil Gorsuch is the same. Clarence Thomas probably would and John Roberts is the ultimate justice of the New Gilded Age in terms of giving and creating new power for corporations. Any additional justices Trump or any Republican names will be the same. When Abood is overturned and agency fees are eliminated in public sector unions, it will be a huge blow for the remnants of organized labor. But that will hardly be the end of it. Expect year after year for new challenges to anything unions can do with any effectiveness. Like as occurred the Gilded Age, it would not surprise me one bit to see a labor movement in 2030 that still exists but that has government as an open enemy that consistently hamstrings labor, rendering its power moot and with courts throwing union leaders in jail for any practice that challenges corporations. I would also not be surprised to see legal challenges to the Fair Labor Standards Act, although probably not the National Labor Relations Act, given the value of corporate capture of the National Labor Relations Board. A world where overtime and the minimum wage are thrown out as unconstitutional is entirely possible.

Of course, we could have at least stemmed this tide temporarily by electing Hillary Clinton, who would have named justices that at least weren’t abjectly anti-labor but she gave a speech to Goldman Sachs once so many on the labor left couldn’t swallow the horror. Yes, I am still consistently amazed at how parts of the left fail at strategic thinking when it comes to general elections and now they reap the harvest they help sow.

None of this makes Richman’s ideas bad or antiquated. They are great ideas. They are also hard to implement, especially when unions’ ever shrinking financial power has to be spent taking care of the members it has left and defending what they can. If there is a way to take an aggressive legal strategy to move these ideas ahead, I am all for it. Someday, in the near or distant future, there will be another movement in government and society to push for greater workers’ rights. We will need a robust agenda at that time. Richman’s ideas contribute a lot to developing that agenda. But in the face of open hostility from government that includes hypocritical judges who will just create the legal reasoning to rule against workers but for employers even when any logical thought sees the inconsistencies, it’s a very hard row to hoe.