Archive of COCAL Updates: May 2012


COCAL Updates: May 8, 2012

Links to stories of interest


"If you want a General Strike organize your co-workers"

An Interview with Joe Burns, author of Reviving the Strike

at Lawrence, Mass. Bread and Roses Centennial April 28th, 2012

by Camilo Viveiros

Introduction: Many in the Occupy movement have called for a general strike on May 1st but most Occupy activists aren't involved in labor organizations or organized in their workplaces. While General Assemblies may be somewhat effective institutions at reaching the agreement of assorted activists around future direct actions, workplace stoppages require the large scale participation of workers in decision-making structures. The interview below gives some organizing advice for those who have called the general strike. I hope that this interview will inspire Occupy activists to consider the difficult work ahead that is needed to build democracy in the workplace. We are the 99%!

Camilo: You've written this very important book Reviving the Strike that gives us a lot of insight about some of the challenges, but also the importance of strikes as a tactic. Thank youfor your work promoting the increased use of the strike as a tool to use building working class power. In "Reviving the Strike" you argue that the labor movement must revive effective strikes based on the traditional tactics of labor-- stopping production and workplace-based solidarity. As someone who sees the strike as a vital tactic to achieve economic justice I want to ask you a few questions.

Right now Occupyand other activists across the country have been agitating for a general strike on May 1st. Resolutions have been passed at General Assemblies around the country.

There are alot of new activists that have joined the Occupy Movement, some never having had any organizing experience or labor organizing experience. Could you share some of the examples of creative ways that newer activists and established labor activists can think about this coming year, maybe toward next May 1st or toward the remote future of how people can embrace new creative strategies to organize toward strikes involving larger numbers of folks.

Joe Burns: First of all, I think the fact that people are talking about this strike and the general strike is a good thing because it starts raising people's consciousness about where our real source of power is in society, which is ultimately working people have the power to stop production because working people are the ones who produce things of value in society. On the other hand, if you look back through history about how strikes happened, how in particular general strikes happened, what you'll find is that they're organized in the workplace by organizers organizing their co-workers. And that's really the key aspect here. If you look at how most general strikes in the United States have come about, it's because there's been strike activity in the local community, people have built bonds of solidarity. And then, let's say oneLocal goes out on strike, they put out an appeal for other Locals to help them, and then eventually it breaks out beyond the bounds of the dispute between just them and their employer and becomes a generalized dispute between all the workers in the city and the employers in the city. So it really happens as part of a process of solidarity being built step by step.

"It hasn't really happened where people have put out a general call saying let's strike,let's do a general strike on this day. "

It hasn't really happened where people have put out a general call saying let's strike, let's do a general strike on this day.

One of the things that I focus on in my book, is the need to refocus on the strike. And to do that, that really takes workplace organizing in both union and non-union shops, where people go in and do the hard work of talking to their co-workers, forming an organization, and ultimately walking out together. I think it's scary to do, to strike, to ask people in these isolated workplaces to strike all by themselves makes it very difficult.

"...people going and do the hard work of talking to their co-workers, forming anorganization, and ultimately walking out together"

Camilo: What do you think it would take to actually organize, to bring back the capacity to have a general strike in the United States?

Joe Burns: In order to have a general strike I think we need to have a workers 'movement that's based in the workplace. If you look at, in the early 1970's there's a good book called Rebel Rank and File that a number of folks edited and it's got articles. It's really about how the generation of 60's leftists, a lot of them went back into the workplaces and did organizing, and that in the early 70's there were tons of Wildcat strikes which aren't authorized by the union leadership. Some of them, like thePostal Strike of 1970 involved 200,000 postal workers striking against the federal government, in an illegal strike. But that didn't happen just by itself, it happened because people went in to their workplaces and organized it. So, how are we going to get a general strike in this country? I think it's going to be because we redevelop a labor movement or a broader workers' movement that's based on the strike. I think the efforts of Occupy for the class-based sort of thinking will help in that. Ultimately, though, I think we need at some point to devote our attention to the workplace, because the workplace is the site of where the strike and struggle need to generate from.

Camilo: During the takeover of the capital building in Wisconsin some folks speculated that what should have happened is that public sector workers who were under attack should have gone on strike. But in some ways public sector workers are even more restricted around strike guidelines than private sector workers and so they have less right to strike. What are your thoughts around public sector workers who are really bearing a large brunt of the attack on labor over the last year, and what would the challenges be to building the solidarity necessary to consider strikes of public sector workers?

Joe Burns: I think what you find studying labor history is that even though strikes were illegal up until 1970, Hawaii became the first state to authorize a legal strike, regardless of that workers struck by the hundreds of thousands, public sector workers in the 1960's. And in fact the laws giving them the right to strike were done after the fact, and they were only passed because workers were striking anyway and legislatures decided to set up an orderly procedure to govern strikes. So what you find is hundreds of thousands of teachers striking throughout the 1960's, and that's really how public employees built their unions. And they did it in the face of injunctions, so a judge may order them back to work and start jailing leaders, but like in Washington state in a rural community all the teachers showed up together, everyone who was on strike, and told the judge to arrest them all. And the judge backed down because it didn't look good.

So that's really how we won our unions to begin with in the public sector, in the 1960's, so when you fast forward to today and look at strikes in the public sector, when you look at Wisconsin in particular, clearly the Wisconsin teachers is what really kicked off the whole Wisconsin battle. They organized calling in sick, and two-thirds of Madison teachers didn't show up to work and that's what really kind of fueled the beginning of the takeover of the capitol, along with the grad students and so forth. So it was based on a strike. Some people wanted that to expand into ageneral strike, but that really wasn't going to happen unless the people most involved which were the public employees, took the lead on that. And they chose, and made a strategic decision after four days to go back to work and fight by other means. I think that's the strategy that they wanted to do and that made sense for them.

Camilo: With union density not at its peak what are the some of the opportunities for non-union organizations to use striking as a tactic? What are some of the lessons we can learn from the Wildcat strikes of the 70's, and how can we have enough flexibility to try to go beyond the stranglehold that Labor law has on workers' organizations right now?

Joe Burns: I think there's been a lot of good movement in recent years to look at different forms of worker organization beyond the traditional unions. So you've had workers' centers, you've had various alternative unions, the IWW and so forth, all looking at how do you organize particular groups of workers. The question that all of them eventually run into is, you can have your alternative form of organization but ultimately it's a question of power, and do you have the power to improve workers' lives. And to do that traditionally, that's been at the workplace the ability to strike or otherwise financially harm an employer. So I think part of what movingforward we'll see with the revival of the workers' movement in this country isa lot of coming together of these different forms of organizations, embracing tactics such as the strike. And really some of them are the best situated to do it, because they don't have the huge treasuries and buildings and conservative officials that you find in a lot of unions.

"...ultimately it's a question of power, and do you have the power to improve workers' lives."

Camilo: So, what would your advice be to a non-union Occupy activist who maybe voted for a general strike during a general assembly, or who wants to see a general strike come to fruition at some point, what would your suggestions be for those activists that are out there who are seeing the need for this tactic to be embraced?

Joe Burns: I think go into your workplace. The strike and strike activity needs to be rooted in the workplaces, and if it's based on people outside of the workplace calling on people to engage in strike activity, that's not going to work. Not saying you need to just bury your head in some local place, you need to have a broader perspective and broader activism, but if you really want to see a general strike, go out and organize workers, your co-workers or however you want to do it to build forms of organization in the workplace.

Joe Burns is staff attorney and negotiator, with the Association of Flight Attendants/ Communications Workers of America and author of Reviving the Strike. (http://www.revivingthestrike.org)

Camilo Viveiros has been a multi-racial economic justice organizer for over 20 years. He has developed organizing trainings for the Occupy movement (www.popularassembly.org) and does campaign and leadership development, popular education, strategy and direct action trainings for grassroots groups.
401-338-1665
camilo@activism2organizing.org

https://t.co/qoRke0ut

On Sun, Apr 29, 2012 at 7:52 PM, Michael wrote:

May Day has generated a lot of talk about "general strikes." Here's what the unions in Ontario said about what it took to organize a real general strike there years ago:

General strikes are like heaven. Everyone who talks about it isn't going there.

To be effective, movements need to be credible in the eyes of their constituents. When they start to speak in terms that are hyperbolic, bombastic, exaggerated, flatulent, or wishful thinking, they lose credibility.

The class struggle is not a 'dream state' in which one gets to conjure up fantastic plans and have them turned into reality. Unlike the little engine that could, repeating the words frequently does not make it possible to do what social reality says can't be done(in that moment).

Magical thinking is not a good substitute for careful planning, painstaking organizing, and the demonstrated readiness of massive numbers of people to take responsibility for constructing a new social reality.

General strikes are always mass protests. All mass protests, however, are not general strikes. It pays to know the difference.


Frank Cosco on the issue of conflicts/commonalities of interest with FTTT faculty, joint unions, etc

It is good news when a new union gets going...it's a really difficult process with lots of emotion, fears and doubts. Not nearly as tough as it was in the past but still tough.

In our post-sec world the fear of conflict of interest as this thread is called is real because single units composed of the "in" group and the "out" group too often haven't measured up to the unity implicit in the word union. There are too many examples of the "out" group ending up even weaker. The result is that people sadly end up in the seemingly-bizarre but realistic position of arguing that two unions have to be better than one.

Any objective view cannot justify the inequities of privileging overtime for one group of members while denying pay equity for the other. The same goes for the privileging of one group with the right to continually evaluate the other (acting as the worst type of unprofessional manager) in ways that are hard to distinguish from bullying.

Doesn't have to be that way. Hope the Oregon effort ends up on the better side of the history around these efforts. It won't be at all easy for a single unit. They would have to tread new ground just to make life less contingent for their contingents. To create a really equitable situation will probably require new vision and concerted effort by the safer and more secure full-time leaders over a couple of decades.

The 20 or so federated post-sec unions in FPSE in BC, Canada, have worked hard at it for most of thirty years and still can't point to wall to wall success although we have some significant examples of equitable situations. What started as a system of only community colleges has seen a half dozen of its institutions morphed into universities with mixed research, teaching and service workloads within "teaching" university contexts. Sad to report that the unions in a couple of the new universities have succumbed to the strange allure the privileged and stratified model but happily most of them have retained the equitable model that is in the genes of FPSE locals.

Last year, FPSE developed a set of bargaining policies and principles for universities. They can be viewed at the fpse.ca website (type university bargaining principles or something similar into the site's search box). It is an attempt to provide useful guidelines for approaching the challenges of university bargaining. (Questions and comments welcome.)

In the Program for Change (check it out at the vccfa.ca website from May) Jack Longmate and I have set out a wide longterm agenda/menu for change that can really make life better for folks. There are successes in the States to point to. Many aspects of work life are under the control of faculty and can start to change in 2012 without any cost at all, with or without a union. We are not completely helpless.

In a unionist view, there's nothing magical about the research or service part of one's work. If it's work that the boss paying for, it's work. Those faculty leading unions need to think as unionists first and faculty second.

Frank Cosco
VCCFA & FPSE
Vancouver


Teach-In on Adjunct Faculty

The remarkable workshop entitled "Teach-in on Adjunct Faculty" that took place at Green River Community College on April 20, 2012, moderated by Keith Hoeller and Kathryn Re, is available for viewing at http://youtu.be/JptEezAjvjQ

One highlight is Keith's reading of a statement of support from Cornel West. It's at about the 0:01:00 mark.

Frank Cosco, president of the Vancouver Community College Faculty Association, speaks on "Abolishing the Two-track System"; his remarks begins at about the 0:06:00 mark.

My portion, "The Overload Debate: Conflict of Interest between Full- and Part-time Faculty" begins at 0:20:30 is synchronized with a set of Powerpoint slides--should anyone wish a copy, please let me know.

The video was masterfully edited by Mr. Dave Prenovost.

Best wishes,

Jack Longmate


COCAL Updates: May 16, 2012

Links to stories of interest


Educating union women for the struggles ahead

Midwest School for Women Workers: Workers' Rights, Women's Rights,
Human Rights July 25-29, 2012 The University of Iowa Labor Center,
Iowa City, IA

Sponsored annually by the United Association for Labor Education, the Midwest School offers high-quality education in key leadership and representation skills along with opportunities for women from a range of unions to learn from one another and build solidarity. Instruction is provided by labor educators from university programs and experienced union staff, leaders and activists.

Along with core courses (including Leadership, Communications, Grievance handling, FMLA & Work-life balance, Legal Rights, and others), this year's school will include special attention to recent anti-worker attacks which have targeted public and private sector unions in the Midwest.

Visit the Midwest School web page http://www.continuetolearn.uiowa.edu/laborctr/programs-courses/Midwest_School_for_Women_Workers.html for:

This year's school is hosted by the University of Iowa Labor Center in cooperation with the Iowa Federation of Labor, AFL-CIO, with support from the Berger-Marks Foundation and the United Association for Labor Education.

For more information, click here http://www.continuetolearn.uiowa.edu/laborctr/programs-courses/Midwest_School_for_Women_Workers.html or contact the University of Iowa Labor Center at 319-335-4144 or labor-center@uiowa.edu with any questions. Print copies of brochure and registration materials can also be provided upon request.

Jennifer Sherer
Director, Labor Center
W130 BVC
University of Iowa
Iowa City, IA 52242
319-335-4144
http://www.continuetolearn.uiowa.edu/laborctr/
jennifer-sherer@uiowa.edu


COCAL Updates: May 23, 2012

Links to stories of interest


Petition President Obama on Adjunct Faculty

From Carol Jordan of CA Part-Time Faculty Assoc. (in CA CCs)

Part time community college instructors earn, on average, 50 cents on the dollar compared to full timers. Moreover, we receive no benefits, no tenure, and no pension. We need pay equity NOW!

http://www.newfacultymajority.info/national/

http://chronicle.com/article/From-Graduate-School-to/131795/

http://www.cpfa.org

That's why I signed a petition to President Barack Obama, which says:

"Stop balancing college budgets on the backs of part time faculty:

http://www.newfacultymajority.info/national/

http://chronicle.com/article/From-Graduate-School-to/131795/

http://www.cpfa.org

Will you sign the petition too? Click here to add your name:

http://signon.org/sign/equal-pay-for-equal-work-1?source=s.fwd&r_by=160722

Thanks!


AAUP Summer Institute Scholarships

Dear Illinois AAUP members,

This year the AAUP annual Summer Institute will take place in Chicago, July 26-29, at Roosevelt University in downtown Chicago. In order to encourage attendance at the Institute and to support those members who want to build an effective chapter at their institution, the Illinois AAUP state council is willing to reimburse up to $400 for each attendee (for a total of ten scholarships). Priority will be given to those members who have not attended the Institute and who are seeking to develop a chapter at their institution.

The attached form will explain the procedure for requesting support to attend the Institute.

For further information on the Summer Institute, please go to the link below.

http://www.aaup.org/AAUP/about/events/si2012.htm

Thank you,

Lee Maltby, Recorder, Ill AAUP


COCAL Updates: May 29, 2012

Links to stories of interest


Very good report on the Amazon shareholder meeting in Seattle and the protests and shareholder resolutions there

by Paul Haeder, "adjunct wage slave" activist at haederpaul@gmail.com
[Amazon has twice fired whole groups of people for trying to unionize in the past. Use Powells (of Portland, OR) for your book purchases, through the union there, at http://www.ilwulocal5.com/support and the union gets a % of each sale.]

Just wanting you all to know that several faculty were at the Amazon.com shareholders meeting in Seattle. Many were ready to take arrests. I was there, helping with organize and speaking. I also have been writing on the Amazon case, if you don't already know that. However, it is important to tie into Jeff Bezos (he was there, and he is really vapid in so many ways, and patronizing and not there emotionally) and his company's ethos -- they want to monopolize all sales, all book publishing realms, everything. They are treating their warehouse employees poorly, and he loves recruiting from the ranks of the ex-military. He is happy to start a 60-hour work week movement. His company is elitist, and he and Amazon really doesn't believe in public education or the value of community-directed governance. His talk today was pathetic, but he did announce Amazon.com stepping out of the manure of ALEC -- American Legislative Exchange Council (double-speak). Two huge votes on more transparency of where Amazon spends its political and other monies and another one from Calvert on getting Amazon to get into carbon tracking, carbon reductions, climate change initiative. Both of those did not pass, based on shares as the voting method. 65 million for climate change, 240 million against; 54 million for transparency, 239 million against with abstaining votes of 60 and 70 million respectively.

The point is that several college students were there, spoke out, tied Amazon's 2.5 percent corporate tax smile to the cuts in education and gutting of a young force of people in the Seattle area willing to make Seattle home, community, a place of common interests, and where they might get a decent job, but first, a decent education. These community college students risked arrest, were dragged off, but dumped outside with the 150 people protesting this goofy shareholders' meeting. So, here are the stories, with one of two more coming. Written by yours truly, wage slave adjunct- (you've already gotten this: http://dissidentvoice.org/2012/04/disposable-teachers/ ) http://dissidentvoice.org/2012/05/on-the-front-lines-of-the-wage-war-stopping-the-wal-martization-of-mind-and-matter/


A provocative analysis of a famous social science experiment with great relevance to us

I stumbled upon a 1950's experiment that made me think of surveys conducted about adjunct faculty and how contented they are. The experiment dealt with cognitive dissonance, the difference that might exist in the mind when there's a conflict between a belief we hold and what reality might be and how, in our minds, we deal with it.

In 1996, when I started to get involved in advocacy, I remember asking the executive of a teaching association dominated by non-tenured part-time instructors why the association wasn't more aggressive in opposing the use of part-time faculty; she said that they weren't inclined to do too much since, according to studies they'd done, most part-timers reported themselves as being happy with their working conditions. That was quite counter to what I was hearing from actual part-timers.

The 1950's experiment I read about was conducted Leon Festinger--he designed a deliberately boring set of tasks (tasks like twisting 48 pegs a quarter-turn with one hand and then, when finished, doing it again--for about an hour or so). When done, the experimenters, using the pretext that they needed somebody because the regular person wasn't around, invited the subjects introduce the experiment to the next subject, telling him that his job was to present the experiment as being really fun, educational, and generally worthwhile (knowing in their head, of course, that it was tedious and boring). One set of participants were provided $1.00 to do this, while the other set was provided $20.00, which, in the late 50's, must have been some money.

Whereas one might have expected that those receiving the $20.00 would put a more positive spin of the experiment, it was actually the group that received only $1.00 that conveyed more convincingly positive impressions about the experiment. Festinger speculated that those who received only a $1.00 were able to pitch the experiment in more positive terms because, in their own minds, they had reconciled the boring time with the disappointing $1.00 they received, their minds contrived justifications to defend and legitimize the experiment. Those who received the $20.00, by contrast, may have felt less need to rationalize the time they wasted as they were essentially bought off; they had less need to try to convince themselves in their own mind that the experiment was enjoyable and worthwhile.

That got me to thinking about surveys of part-time faculty, who might report they are contented with their working conditions even though they might receive poverty-level wages, have no job security and no potential for career advancement or income growth, no office nor office hours, their names are not listed in the college catalog, etc.

Best wishes,

Jack Longmate


Some useful info on preparing students for the real world of work
(like how to form a union and otherwise protect yourself on the job)

From: William Barry billbarry21214@gmail.com

A month ago, there was some discussion about preparing college students for the "real world" and I responded that we give working-class student technical skills but no sense of how to survive in the workplace. Here is a project that was just released today, directed at young non-union workers. Obviously a couple of the presentations, like workers comp, are state laws but the rest are of general use.

Many students have come up to me with problems at work, usually starting 'I can't get my assignment in on time because . . ."

With the help of Jo-Ann Rasmussen at the CCBC TV studies, here is a series of videos by experts in various workplace laws, talking to our students. Please share with other faculty and any students who might have the same problems. http://faculty.ccbcmd.edu/~wbarry/WorkplaceRights.htm


CFHE Call for Volunteers: Help with Recall Scott Walker effort

Greetings, all!

We have had a request to help out with the Recall Scott Walker effort in Wisconsin.

The idea is to have small phone banking groups or even individuals call fellow labor people in Wisconsin with a message of support and a reminder to get out and vote.

Anyone interested in helping out with calls should contact Andy Lyons from Wisconsin NEA (cell phone 608-225-1027 or email lyonsa@weac.org).

Andy will help you and any of your group get up to speed on the "virtual phone bank" program. The program sounds very user friendly: you just log onto a website to receive an online list with names and numbers to call. All that's needed is a laptop or desktop to access the list and a cell phone to make the calls.

Andy said the optimum time period for us to call is next Wednesday, Thursday or Friday (May 30, 31st or June 1st).

Please consider getting a group together to call-or just volunteer yourself!


Occupy Labor Law!

By Ursula Levelt
Newsletter of the Labor & Employment Committee The National Lawyers Guild May 2012 http://nlg-laboremploy-comm.org/media/News_May-2012.pdf

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 use.

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 employer. 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 majority.

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 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 originalists.

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.


PortsideLabor aims to provide material of interest to people on the left that will help them to interpret the world and to change it.