Low-wage workers across the country have recently gripped the nation’s attention with public demonstrations calling for workplace fairness. But as these workers and the unions supporting them employ new and innovative strategies to organize their workplaces and improve their working conditions, employers and the National Labor Relations Board have charged them with violating section 8(b)(7) of the National Labor Relations Act, which prohibits peaceful picketing to organize workers or gain employer recognition of a union. This article analyzes the history and impact of labor picketing restrictions in light of the Supreme Court’s recent First Amendment jurisprudence. We demonstrate that the National Labor Relations Board, its enforcement officials, and the courts can no longer apply old law prohibiting picketing for recognitional and organizational objects. The NLRA’s prohibitions on labor unions picketing to obtain recognition or get workers to join them are unconstitutional speaker-based and content-based discrimination. We describe how the Board and the courts can adopt narrower interpretations of labor picketing that accord with the Supreme Court’s recent First Amendment cases. Specifically, we advance three proposals to bring the Board’s interpretation and enforcement practices into compliance with the Constitution, and a fourth approach that might at least partially address the constitutional infirmities of the Board’s current approach. All of these proposals aim to ensure that section 8(b)(7) will be violated only by conduct that actually or imminently coerces employees or companies in the selection of a bargaining representative through methods other than peaceful persuasion of consumers or employees to cease doing business with the firm.
Michelle Miller, co-founder of Coworker.org, asks what the union of the future will look like. … As remote work has become easier, so too has the transition to the use of independent contractors instead of full-time employees. …. In essence, we have an entire government and union structure designed to ensure economic stability for workers—but one that no longer matches the situation in which many people actually work. …. The union of the future will be structured radically differently to meet the needs of workers in the emerging platform-based economy. It will transition from focusing solely on generating and supporting collective bargaining agreements to providing a variety of services to these workers. It will only thrive in a federal policy environment that is willing to reimagine its own definitions of work. The union of the future will combine elements of platform-based global networks of employees, facilitated mutual aid, and revamped trade unions. ….
From the summary:
For legal, social, and economic reasons, it is difficult for worker organizations to organize, bargain, and strike across entire contractual supply-chains, networks, industries, occupations, or regions.
This paper proposes four large-scale reforms to diminish these difficulties and actively facilitate organizing and striking across multiple employers:
First, an entity should be deemed an “indirect” employer of multiple “direct” employers’ workforces if it has “sufficient bargaining power” to determine the standards of all the employees in question, even if the entity is not currently exercising such power. By organizing and bargaining with that single entity, a worker organization would effectively organize and bargain with what is currently deemed a multi- employer association.
Second, the law should authorize worker organizations to unilaterally choose multi-employer units. And, if a government agency is called upon to select among differing units chosen by different worker organizations, the agency should define units based on the criterion of “maximum potential worker empowerment.”
Third, legal reform should authorize bargaining units that are defined not only by employer boundaries but also by such categories as geographic region, production-and-distribution network, occupation, or industry.
Fourth, bargaining rights or the substantive terms of collective agreements should extend across multiple employers even if only a minority of unit workers have affirmatively shown their support for the organization.
Each of these reforms would require large-scale legislative transformation and zealous enforcement that are only imaginable in the event of deep progressive renewal in our politics. The four reforms could be enacted separately but would, if concurrently implemented, be mutually reinforcing.
From the summary:
Today, the ever-more-attenuated relationship between workers and companies with economic power over their jobs creates obstacles for those who wish to expand opportunities for worker organizing, especially among low-wage workers. The ever more distant nature of the relationship between unions and communities makes those obstacles harder to surmount.
Changing this landscape will require new strategies. Major cities are the place to start, as they are where capital wants to be, where favorable politics and constituencies are concentrated, and where government has the power to shape regional economies for the better. In the last several years, community-labor coalitions working in cities have demonstrated what is possible. Working in permanent coalition, they are winning campaigns that push cities to transform local sectors of the economy, raising standards for all workers and creating better conditions for organizing. Their campaigns have focused on, among other things, community benefits at major development projects, real construction careers for excluded communities, and a waste and recycling sector that respects workers, the environment, and local communities. Those interested in expanding opportunities for worker organizing should invest in such strategies.
From the summary:
This paper explores a new strategy for workplace-based worker organizations. The strategy is suggested by the contrast between the U.S. system of work regulation, in which regulations are administered by a number of different agencies, each with a relatively narrow jurisdiction, and the system prevailing in Southern Europe and Latin America, where a single agency administers the whole of the labor code. The latter system is particularly effective where, as is generally the case, the work practices of a company are interrelated and “patterned.” The patterns typically reflect the company’s production practices and business strategy; these are the ultimate determinant of work practices and need to be adjusted if violations are to be remedied. The Franco-Latin approach encourages the regulatory agency to recognize these patterns, and then to look for remedies that address the root causes.
Workplace-based worker organizations could simulate the Franco-Latin approach by identifying violations, bringing complaints simultaneously to all the different agencies that have jurisdiction over them, and pressuring those agencies and employers involved to work together with the worker organization to identify the underlying causes of the problems and develop appropriate remedies. This strategy could be developed by a local organization operating on its own or in coordination with other organizations at the local, state, or national level on the model of the recent campaigns to raise the minimum wage.
From the summary:
Is the National Labor Relations Board (NLRB) broken? Yes. But does that mean it is irrelevant for workers attempting to organize? No. As data in this paper shows, particularly when focused on certain demographic groups, labor unions are still using the NLRB, and in many cases, very effectively.
This paper examines the use of the NLRB election process since 2000, and especially from 2008 to 2012. The author finds that while the majority of new private sector union members have not gained recognition through the broken NLRB election process, the data show a significant number of workers who do in fact gain representation through NLRB elections. The data also show a notable decline in the numbers of workers gaining unionization through the NLRB, though at the same time, the “win” rates of workers who do use the process have increased over the last decade.
Based on analysis of original data on the demographics of those organized using the NLRB process, the win rates for workers in NLRB elections increases with the diversity of the workplace. specifically, workers of color, women, and especially women of color overwhelmingly vote in favor of unionization through the NLRB election process.
From the abstract:
The Black Lives Matter movement provides a unique opportunity to revisit the First Amendment’s protection of a “right of the people to peaceably assemble.” Even more than the Occupy movement, the recent protests against the frequency with which unarmed African Americans die as a result of police officers’ actions illustrate the serious consequences that flow from the Supreme Court’s failure to appreciate that the First Amendment identifies a particular form of conduct – public assembly – for separate constitutional protection. The fact that the Black Lives Matter protests often bear little resemblance to our idealized conceptions of public discourse – as reasoned disquisitions on difficult choices of public policy – underscores why the Founders recognized the need for a separate clause to protect assembly and the process of redressing grievances. It thereby illustrates why the Supreme Court’s contemporary jurisprudence, which collapses the right of assembly into the freedom of speech, is thoroughly misguided – leaving protestors feeling that First Amendment protections are weak and lower courts confused about how to decide how much disruption officials constitutionally ought to be required to tolerate. In sum, this essay uses the recent protests as an opportunity to consider why outdoor assembly remains a valuable form of political participation, even in the digital age, and why it deserves more robust constitutional protections.
Source: Henry Farber, ILR Review, Vol. 68 no. 5, October 2015
From the abstract:
It is well known that the organizing environment for labor unions in the United States has deteriorated dramatically over a long period of time, a situation that has contributed to the sharp decline in the private-sector union membership rate and resulted in many fewer representation elections. What is less well known is that since the late 1990s, average turnout in the representation elections that are held has dropped substantially. These facts are related. The author develops a model of how unions select targets for organizing through the NLRB election process that clearly implies that a deteriorating organizing environment will lead to systematic change in the composition of elections held. The model implies that a deteriorating environment will lead unions not only to contest fewer elections but also to focus on larger potential bargaining units and on elections where they have a larger probability of winning. A standard rational-voter model implies that these changes in composition will lead to lower turnout. The author investigates the implications of these models empirically, using data on turnout in more than 140,000 NLRB certification elections held between 1973 and 2009. The results are consistent with the model and suggest that changes in composition account for about one-fifth of the decline in turnout between 1999 and 2009.
Source: Lance Compa, New Labor Forum, Vol. 24 no. 3, Fall 2015
From the abstract:
Alarmed at declining union density and frustrated with the National Labor Relations Act, many worker advocates want to ditch the NLRA, forsake traditional unions, and start the labor movement afresh. Ideas include making “Alt-labor” a new launching pad; replacing face-to-face union building with high-volume digital organizing; applying the Civil Rights Act to union activity; adopting “members-only” bargaining alongside majority rule and exclusive representation; letting unions make non-members pay for handling their grievances; and even conceding a national “right-to-work” law so unions will try harder to win workers’ support.
Social movements should always examine new strategies. But they should not let novelty overwhelm judgment. Many of these new ideas are clever in theory, but in practice would undermine unions and shift more power to employers and anti-union political forces.
From the summary:
The top 9 digital tools & tactics that unions and other organizing groups are using to combine online and offline organizing in low-income/low-wage communities. Online isn’t just a communications tool, it can also be a way to further your organizing campaigns.
Developing online worker centered strategies utilizing online tools is an opportunity to connect with low-wage workers and communities. However it’s important to ensure your strategy works in coordination with your offline organizing. A number of unions and community organizations have worked to develop thoughtful approaches using online tools.
This webinar recording provides:
– specifics on how to identify the online tools those you are organizing use so you can reach them
– text messaging strategies to reach workers and residents in low-income communities
– Facebook strategies that go beyond posting to your page or promoting your posts
– examples of online strategies that can reach similar goals as offline but with far fewer resources
– suggestions for how to ID workers and residents online
We will share specific experiences from ongoing campaigns such as Walmart and fast food. A document with all the notes and links from slides is also provided.
Top 14 digital tools
Source: Social Movement Technologies, 2013
Notes & links
Is your labor or community organizing campaign using today’s most powerful tools to win? Whether you are a complete digital novice, or advanced, make sure you aren’t missing out on key digital tools and tactics, hear what other organizers are doing to win, and learn how to do it with limited time and money. …. This is part of a series of digital organizing webinars—developed by organizers for organizers, especially focused on meeting the needs of unions and small social change groups, many without the resources to hire full-time digital organizing staff. The webinar covers a range of key tools and tactics, including for example, how to quickly identify your most social media-influential members and what to do with them, how to identify your targets’ soft social media spots and build your strategy around them, and exciting ways to use twitter and free and low-cost texting to expand visibility and pressure targets. Movement examples are used throughout.