Finally reading Labor Law For The Rank And Filer. Gonna live tweet it, cause why not:
"Section 2 of the Norris-LaGuardia Act... declares that under modern economic conditions, 'the individual unorganized worker is commonly helpless to exercise actual liberty.' To be genuinely free, the individual worker must be able to organize collectively."
"Unfortunately, the courts have misinterpreted the plain language of the Act to permit federal courts to issue injunctions against strikes if the CBA contains a no-strike clause or binding arbitration clause. Courts will issue injunctions against some kinds of picketing as well."
"The philosophy of the Norris-LaGuardia Act was that if the courts could be kept from interfering, labor could fight its own battles. A few years' experience led many people to question this assumption."
"The drafters of the [Wagner Act, also known as the National Labor Relations Act, or] NLRA believed that labor would never be able to deal with capital as an equal without help from the government."
"The philosophy of the [NLRA] is that government must help workers to organize into unions, after which labor will be strong enough to bargain collectively."
"The Fair Labor Standards Act, also known as the Wages and Hours Act or the FLSA, made labor's long struggle for an 8-hour day, and for the abolition of child labor, the law of the land."

This was finally passed in 1938. Wild.
Editor's note on FLSA: the book notes the Constitution only protects against state action. "In the private sector, the employer has no legal obligation to respect your constitutional rights." The 13th amendment is noted as an exception in the footnotes, saying...
"The 13th... prohibits slavery and involuntary servitude, without regards to who creates these conditions... Thus, it might be possible to argue that when a private employer and a union negotiate a no-strike clause, they violate the 13th even though there is no 'state action'."
"From the day the NLRA was passed, employers tried to amend it. These efforts were finally successful in the generally reactionary climate that prevailed after World War II. The Taft-Hartley Act includes a series of amendments to the NLRA, along with a new statute, the LMRA."
"Three provisions [of the Labor Management Relations Act] have been especially burdensome to workers' self-organization," outlawing provisions to require membership/dues and "secondary" strikes and boycotts, and granting the right to sue a union, usually with a no-strike clause.
"Section 14(b) [of the LMRA] gives state legislatures the authority to outlaw the 'union shop'... the provisions in many CBAs that any new employee at any workplace where there is an existing union must join that union, or at least pay dues, within a certain period of time."
"Many state legislatures in the South and West have exercised the authority to prohibit union shop provisions."
"Section 8(b)(4) outlaws 'secondary' strikes and boycotts... When the workers of a 'primary' employer go on strike, this provision is intended to prevent them from asking the employees of other companies for support."
"Finally, Section 301 of the Taft-Hartley Act gives an employer the right to sue a union in court for violation of its contract. There was nothing inevitable about this amendment..."
"...In England, labor contracts were not legally enforceable until the passage of the Industrial Relations Act of 1971, and when unions refused to cooperate with the law, it was repealed in 1974."
"In the United States, however, thanks to Section 301 it has now become routine that when a union strikes in violation of the no-strike clause in its contract, the employer will rush into court and..."
"1. Obtain an injunction (despite Section 4 of the Norris-LaGuardia Act) requiring the union to stop striking and to arbitrate its grievances;

2. Sue the union for alleged 'damages' (loss of money) caused by the strike."
"One feature of the Taft-Hartley Act offers union members something positive: it protects rank-and-file groups that organize in opposition to an established union."
"Section 8(b)(2) of the Act prohibits a union from causing a union member to be discharged from employment so long as the employee does not fail to pay union dues."
"The LMRDA [Labor Management Reporting and Disclosure Act or Landrum-Griffin Act] concerns itself with the internal government of unions... the ACLU for years had pushed Congress to protect the rights of individual union members."
"And after Section 301 of the Taft-Hartley Act made CBAs enforceable in court, it became critical for rank and filers to try and control the contents of their contracts."
"Title I [of the LMRDA] contains the so-called workers' Bill of Rights." These include equal rights to nominate, vote, attend, and take part in meetings, and to assemble freely with other members and express any views."
"[Title I of the LMRDA] prohibits discipline for bringing suit against the union or its officers. It also generally requires notice of specific charges, time to prepare a defense, and a disciplinary hearing. Certain procedures are required before dues may be increased."
"Any union member whose Title I rights have been violated may bring a civil action in federal district court. As with all other provisions of labor law, what the Act provides on paper and actual results may differ."
"Title IV regulates elections. Before elections, opposition candidates have the right to inspect a union membership list and, under court decisions made during the Miners for Democracy campaign, a right to equal exposure in the union newspaper."
"Title V requires union officers to conduct themselves toward their members as trustees, that is, to avoid self-interested transactions and to report fully to the membership..."
"...This provision was intended especially to prevent financial misconduct but courts have also held union officers to be trustees in their other activities as officers."
"According to Title VII [of the Civil Rights Act of 1964], it is an unlawful practice for an employer 'to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to..."
"...compensation, terms conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.'"
"Sexual orientation is not a protected class under Title VII but some states have laws that prohibit employment discrimination based on sexual orientation."
"You cannot go to court under Title VII until you first file a charge with the EEOC (Equal Employment Opportunity Commission) or with a state civil rights agency...."
"...After the charge is filed, the EEOC has six months within which to act. Because of its enormous backlog of cases it usually does nothing."
"At the end of this six-month period the EEOC must issue a 'right to sue' letter if the person who brought the charge requests it, after which that person has another 90 days to bring suit in federal court."
"Although you have to file an agency charge before filing a Title VII action in court, you do not have to file a union grievance; and if you do file a grievance and lose, you can *still* go to court."
"The reason for these provisions is that Congress considers the right to not be discriminated against as more important than other rights."
"A worker who read a draft of this booklet comments: 'Today, in construction, we sometimes find more protection as members of a protected group, i.e., 'over 40,' 'disabled,' or subject to 'sexual discrimination,' than we find in the NLRA...'"
"'...Many white, male construction workers don't yet know that their rights are protected by the EEOC.'"
"There are other important labor laws, such as OSHA and ERISA... However, if you develop a working familiarity with the six laws sketched above (Norris-LaGuardia, NLRA, FLSA, Taft-Hartley, LMRDA, and Title VII), you will have the basic knowledge you need."
"...They are like the basic contract. Other laws are like supplements, or memoranda of agreement, which add something to the contract but do not essentially change it."
"It is strange, in our individualistic system of laws, to encounter a right to act together with others. Section 7 of the NLRA nevertheless proclaims a right 'to engage in... concerted activities for the purpose of... mutual aid or protection.'"
"These words reflect decades of legally unprotected collective struggle by working people. The heart of the labor movement—the reason that, with all its failings, the labor movement still in some sense represents a new society within the shell of the old..."
"...—is the experience, forced on working people by necessity, that 'an injury to one is an injury to all.'"
"Trade union officers sign their letters 'fraternally yours.' That they do so is a symbol, just as Section 7 is a symbol, of the reality of solidarity that underlies these outward forms."
"Section 4 of [Norris-LaGuardia] forbade federal courts to enjoin strikes, picketing, and the like. When the NLRA was young it was commonly interpreted to protect sympathy strikes and boycotts."
"The right to act together is the right on which all other workers' rights depend. It is the enforcer, the working person's First Amendment."
"Acting in concert may take the form of union organization, but it may also take the form of shopfloor struggle in the absence of a union, or alongside a union."
"Following the great upheaval of the 1930s the Congress, the NLRB, and the courts have done their best to limit worker's rights to engage in concerted activity."
"This has been especially the case in the last few years when a Republican president has packed the NLRB with pro-business lawyers, but it is also a long-run trend."
"For example, in workplaces where a union has been recognized, the NLRB and the courts tend to protect only concerted activity approved by the union."
"Earlier we explained that from the very beginning of the CIO, unions have been permitted to 'waive' the right to strike by agreeing to no-strike clauses in collective bargaining."
The authors note an example: a union 'waived' the right to picket. The same union refused to file a group grievance for discriminated workers, so these workers picketed. They were discharged, and the NLRB and Supreme Court said it was lawful, requiring individual grievances.
"The powers that be have also promoted the notion that the right to act in concert is a 'collective' right, belonging to everyone together but not to any one individual."
"A single worker's statement, 'this is a hell of a place to work,' was initially held by the NLRB to be an 'indispensable preliminary step' to group action but was found by a reviewing court to be 'mere griping', hence unprotected."
"Likewise, the authorities have done their best to restrict activity aimed at defending class-wide interests, rather than narrowly-defined self interest. A strike protesting trade relations with Cuba was held to be unprotected, as was wearing a button with the words 'Dump Nixon'"
"Yet Section 7 remains a significant source of protection. It has repeatedly been held that an individual's protest activity can be sufficiently linked to the general welfare that it should be considered 'concerted'." Footnotes call Section 7 "the best-kept secret in labor law."
"When an individual worker's self-activity concerns health and safety it is especially likely to be viewed as protected by Section 7."
"Similarly, activity on behalf of class-wide objectives has frequently been protected under Section 7... The Court said that the phrase 'mutual aid or protection' is intended to protect workers when they engage in concerted activity in support of employees of another employer."
"Moreover, the [Supreme] Court declared, workers are protected by Section 7 when they seek to improve their situation by means other than union organization and collective bargaining."
"The Congress that passed the NLRA 'knew well enough that labor's cause often is advanced on fronts other than collective bargaining and grievance settlement within the immediate employment context.'"
"This remarkable language offers broad protection to agitation on behalf of the working class as a whole, and is still good law."
"Often protection is available to workers who frame their action so as to bring it within Section 7... The following guidelines will tend to give you the best chance of bringing your protest activity within the protection of Section 7:"
"1. Act together.
2. If you have to act alone, tell management that you are acting for the other employees in your department or workplace, as well as for yourself.
3. If there is a CBA in your workplace, and what you're doing relates to any of its provisions, refer to it..."
"4. Even if your action concerns workers elsewhere, or a political object like legislation, the NLRB will be more likely to consider what you do protected if you show... how the action affects the working conditions of yourself and your fellow employees."
The authors note to show this "preferably at the time of action".
"Often it appears that the employer administered discipline for more than one reason, only one of which involved concerted activity arguably protected by Section 7."
"In such 'dual motive' cases the question to be asked is: would the discipline have been administered anyway if the concerted activity had not occurred?"
"Other things being equal, you'll be able to prove that the union activist would not have been fired for coming late were it not for his protected activity."
Concerning the right to speak and leaflet: "At the threshold of any concerted activity there is the need to communicate... There is what might be called a sacred contagion about such communication."
"Workers have the right to wear union buttons and emblems anywhere on the job... To negate this right, the burden is on the employer to show special circumstances, i.e., a button so provocative that it disrupts production.

Disruption is in the eye of the beholder."
"In general, excessive profanity or insubordination will cause buttons or emblems to lose Section 7 protection."
"When employees interact with the public... employers are most likely to attempt to interfere with the right to wear a union pin. However, the Board has held that customer contact alone does not constitute the 'special circumstances' required to prohibit union pins."
"In jobs where workers are in contact with customers, the size and message of the union pin will be critically important in determining whether there is a right to wear those pins in public areas."
"Talking about a union or wages and working conditions is almost always protected activity, even when you're on the clock and in a work area." In short, if you can talk about sports or the weather, you can talk about wages and conditions.
"'Soliciting', on the other hand, requires an immediate, active response from the listener... Asking a co-worker to sign a union card is quintessential soliciting. An employer may not prohibit soliciting that takes place during non-work time... even if you're in a work area."
"So long as one stays on a public sidewalk or right of way, leafleting is governed by the First Amendment. Unless restricted by a lawful local ordinance no permit is needed to leaflet on public property." In short, don't block walking, get violent, or lie in the leaflet.
"(Of course the police may interfere regardless of the law. The leafleter has a better chance to be left alone if within the foregoing guidelines, however.)"
"Once the leafleter leaves public property and enters onto the property of the employer, the rules change. If the employer is a *public* employer then the First Amendment continues to apply..."
"...but speech inside the workplace may be more restricted than speech on the sidewalk because of considerations of time, place, and manner, or because it is considered to be disloyal."
"If the employer is a private employer and engages in interstate commerce of any significance, then the NLRA including Section 7 is applicable."
"You may only leaflet in non-working areas... Leafleting in working areas is unprotected even during non-working time. The theory is that such leafleting might cause litter that would interfere with production..."
"...However, if the employer allows workers to exchange documents unconnected with the job in work areas, it may not prohibit sharing written information in work areas just because the documents are union-related."
"May I leaflet if I am off duty or laid off? Yes, but only in out of doors non-working areas, such as a parking lot."
"Do union organizers have the same rights as employees to leaflet on company property? No." Salting is an exception. "Significantly, this means the employer cannot refuse to hire a salt because of his or her union affiliation and cannot discriminatorily fire [a ID'd salt]."
"Can the company call the police and have me thrown off the property for trespass? If you are on the property of a company where you work, probably not."
"Creative and aggressive leafleting can be an effective way to remedy grievances on the job." The authors use a leaflet example with a manager's photo and truthful list of abuses, and it was handed to customers as they entered the store; the manager wised up.
"There is no legal right to use bulletin boards. However, if the employer allows non-company postings on the bulletin boards before a union organizing campaign, it cannot then prohibit workers from posting union materials once the campaign gets started."
"How would the Board treat employee communications on company email? ...the Bush Board answered that employees do not have a statutory right to use a company's email system for Section 7 communications... an email policy against all 'non-job-related solicitations'."
"After this ruling, an employer can allow workers to communicate freely about personal issues on company email while forbidding communications soliciting support for a union, so long as [they] also ban the use of company email to solicit support for any other group."
"However, if the employer permits personal communications on the email system or bulletin board, it will still have to allow Section 7 communications that do not involve solicitation."
"In general, speech about workplace problems at a press conference or other public occasions is concerted activity protected by law. Workers should attempt to speak accurately and without unduly disparaging the employer's product."
The authors use a NY press conference about a Starbucks rat and insect infestation as an example. "Because the baristas' collective speech concerned and accurately described their working conditions, Starbucks was unable to take adverse action against them."
"Section 7 law gives workers more protection to communicate than to act. A union *is* allowed to bargain away the right to strike. A union is *not* allowed to bargain away the right to distribute leaflets."
"Discharge or discipline of employees for grieving [expressing a protest, through actions or words, not necessarily alone] is generally held to be a violation of the Act."
"When a group of employees stop work in order to present a problem to management it becomes a _de facto_ work stoppage." Authors use an example where calls weren't answered for 20 minutes and the Board held it was peaceful, job-related, specific, and caused little disruption.
"Brief work stoppages will be assessed on a case by case basis." Authors use examples where stoppages and strikes either did not "create an imminent danger of harm" or "disrupt the employer's operation of the warehouse".
"The briefer, the less disruptive, and the more closely tied to a danger on the job the stoppage is, the more likely it is to be protected."
"If there is no 'waiver' during collective bargaining, employees who refuse to cross another union's lawful picket line are generally engaged in protected activity. However, the right to picket like the right to strike may be waived, that is, given up."
"A worker who honors a picket line later found to be unlawful or contrary to the picketers' CBA is at risk of being discharged." Authors say an outright firing is unlikely, and the court would balance between Section 7 interests and employer interests.
"How is a worker who suddenly encounters a picket line in the course of [their] daily rounds—say, as a delivery driver—to know whether the picket line is lawful? The Board and the courts may not make that determination until months or years in the future."
"This is one of those situations where one has to act first and hope that the law will be helpful. There are still some communities in the United States where people say, 'Our family doesn't cross picket lines.'"
"Second only to the right to equal treatment, the right to refuse unsafe work may be the right best protected by labor law."
"Section 502 of the NLRA—which the Taft-Hartley Act did *not* change—states that 'the quitting of labor by employee(s) in good faith because of abnormally dangerous conditions' shall not be considered 'a strike under this Act'."
"Thus, a work stoppage over health and safety is not necessarily prohibited by a contractual no-strike clause... This particular kind of activity is protected even if undertaken by a single worker."
"What if there is no immediate danger but conditions exist that threaten the employee with sickness or death in the long run, such as 'black lung' among coal miners or 'brown lung' in textile plants?" The authors showed an example of protected activity here as well.
"An important legal distinction exists between work stoppages triggered by an unfair labor practice and strikes in support of economic demands... you should always choose, if possible, to strike over an unfair labor practice and make clear that's what the strike is about."
"Economic strikers can be 'permanently replaced', that is, discharged. In contrast, the boss must reinstate unfair labor practice strikers even if it means displacing replacements."
"Given the prevalence of no-strike clauses in CBAs, an understanding of the scope of these provisions is critical."
"Sympathy strikes, whereby workers stop work in solidarity with fellow workers at the same company who are on strike, are not prohibited by a no-strike clause in the contract unless there is a 'clear an unmistakable' waiver of the right to participate in a sympathy strike."
"A general no-strike clause will also not be held to prohibit a strike over an unfair labor practice, provided the ULP is sufficiently 'serious' and the problem is not amenable to redress through a grievance procedure."
"Strikes are won when preparations are robust, solidarity among workers is deep, and strategy is intelligent. Legal protections for strikes should not obscure the tremendous challenge of carrying out a strike successfully..."
"...But when successful, there's nothing like the power of working people refusing to turn the wheels of production."
"The ultimate security of a worker comes from the willingness of those who work together to act together in solidarity. Yet there are times when one also wishes for the legally-protected presence of a steward or fellow worker as an advocate or witness."
"The Supreme Count has held that in a unionized workplace an employee has a right to ask for union representation at any interview with management that can reasonably be expected to lead to discipline... A series of subsequent decisions have fine-tuned exercise of this right."
To sum up the ground rules:
1. must request rep explicitly
2. reasonable belief of discipline is enough
3. can't substitute already available rep
4. can't postpone to lawyer up
5. employer can refuse rep; interview is now opt-in
Author note in #5: "This may seem to gut the Weingarten right almost entirely when the employer is antagonistic to the union."
Continuation of Weingarten ground rules:
6. can ask for rep after it starts
7. right to be informed of charges
8. violations doesn't require employer to reinstate with back pay
Author note on #8: "However, the burden is on the employer to show that discipline given an employee is not based on information obtained during an unlawful interview."
"The question arises, in the typical workplace in the US where there is no recognized union, may a worker insist on the presence of a fellow worker at an interview reasonably expected to lead to discipline? The NLRB has gone back and forth on this issue..."
"...As this is being written, the Board with a conservative majority has answered... the act of *requesting* a fellow worker as a witness remains protected even though the boss does not have a legal obligation to grant the request."
"Invoking the right to request a witness will likely make the management officials present uncomfortable and help shift momentum onto your side. In the likely event that you are denied a witness, you can testify about that and management can be cross-examined."
The authors present a scenario with a CBA violation and the union is negligent is handling the grievance somehow: "Is there anything the member can do? The answer is, Yes and No..."
"Under Section 301 of the Taft-Hartley Act, a worker has a right to go into state or federal court to enforce a CBA against an employer. But there's a Catch-22..."
"...On top of all the other problems connected with a law suit, such as expense and delay, to prevail in court the worker must show that [they were] 'unfairly represented' by the union... guilty of [that] if its conduct is 'arbitrary, discriminatory, or in bad faith'."
In short, it's not enough to say the grievance "was probably a winner. It mush also be shown that the union had an improper motive in deciding not to proceed to arbitration: for example, that the grieving member belonged to a dissident caucus within the union."
"It is very difficult for union members to win duty of fair representation claims, and we now think workers would be better off focusing attention on building organizations that really represent their interests."
"We should attempt to act on the idea of members-only unionism, for example by presenting a grievance as a group grievance that causes a temporary shutdown in production, and by insisting on discussion and resolution of particular problems..."
"...(such as the employer's failure to arbitrate a grievance) even before the employer is obligated to negotiate a complete contract."
"In order for unfair treatment to become 'legally cognizable'... the person(s) claiming discrimination must be able to demonstrate membership in what the court calls a 'protected class'. Authors list race, color, religion, sex, national origin, age, pregnancy, and disability.
"The greatest problem in this area is not so much what exists on paper but enforcement... the EEOC has an enormous backlog. It is critical that workers keep in mind what they can do for each other."
"The increasing use of arbitration agreements by employers represents another barrier facing workers seeking redress for discrimination in the courts. These employers require job candidates to sign contracts that prohibit them from bringing any and all legal claims in court."
"In every area of anti-discrimination law—schools, voting, juries, jobs—the courts have wavered as to whether the discriminatee must prove that the discriminator had an *intent* to discriminate..."
"...Intent is hard to prove. If intent is required, the civil rights plaintiff will win less often.

Generally, an intent to discriminate need not be shown in an employment case because of the Supreme Court decision in Griggs v. Duke Power."
"In Griggs, the Supreme Court held that the employer's requirement that job applicants have a high school education constituted discrimination, when that requirement was not shown to be 'significantly related' to performance on the job..."
"...and had the effect of screening out African Americans at a 'substantially' higher rate than whites. A Title VII plaintiff need not prove discriminatory intent but only discriminatory *effect*, the Court held."
"The Court stated: 'The Act proscribes not only overt discrimination but also practices that are fair in form but discriminatory in operation.'"
"It also declared: 'Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices.'"
"And still again: 'Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.'"
"The Supreme Court explained in McDonnell Douglas Corp V. Green how Griggs should be applied in a case where an individual claims a discriminatory refusal to hire:"
1. belong to racial minority, be qualified, employer seeking applicants, rejected, employer continues search
Author notes on #1: "This establishes what is called a 'prima facie' (meaning, of the face of it) case."
Griggs application, cont'd:
2. employer must present legit business reason for rejection
3. claimant has chance to rebut that reason as mere pretext
Author note on #3: "The employer's proffered reason for failure to hire (or administering discipline) may be shown to be pretextual if it has no basis in fact, if it did not actually motivate the employer's decision, or if the reason was insufficient to explain the action."
"Pretext should also be found if the employer has previously tolerated the kind of conduct in which the employee (or applicant for employment) allegedly engaged, or treats the employee differently than other employees (or applicants) who engaged in the same conduct."
"In many cases, you will need to show that you were economically hurt by the employer's decision." Exceptions include an unfavorable evaluation, or sexual harassment.
You can use the same three steps from the application of Griggs and the McDonnell Douglas cases to discrimination against a group:
"1. A prima facie case is usually demonstrated by statistics. For instance, it might be shown that the population within commuting distance of the workplace is 35% black but that the work force is only 3% black."
2. show some business necessity for decisions: "requires a level of skill possessed by no blacks, or only a few blacks, in the area near the workplace. (The question could still be raised whether the employer should train minority applicants.)"
3. claimants can still rebut with less discriminatory alternative

Author notes example where women were fired for not being able to lift heavy packages, countered by proposal to allow men to lift heavier packing and women performed remaining work.
Author noted direct experience with a case involving earth-moving equipment operators, where hours worked dropped off dramatically after the apprenticeship program compared to whites. Court ordered dispatchers to alternate jobs to blacks and whites...
...Within a few years, % of total hours worked by minorites rose from 5 to over 12. However, plaintiffs pleaded with judge that minorities still lacked training on more complex (and better-paying) machines...
"...Experienced operators were in the habit of offering new white workers 'seat time' to practice on machinery during lunch breaks and the like, but to deny similar assistance to blacks..."
"...Dispatchers could then plausibly argue that a black union member could not be sent out to work on a kind of machine that [they] did not know how to operate. No matter, the judge said..."
"...since blacks were now working a % of total hours that met federal standards, he would dissolve the consent decree. Within short order African Americans were again working in the neighborhood of less than 5% of total hours."
"Litigation must therefore be accompanied by direct action, or the threat of direct action." Author notes a threat to Burger King management to picket on MLK day got a hiring agreement and an effective monitoring process within a matter of days.
"A person claiming quid pro quo (one thing in exchange for another) harassment must show an obviously harmful action by the employer... A more common but also more subtle form of discrimination involves the creation of a hostile work environment."
"In any kind of sexual harassment claim, the employer must have been put on notice and be aware of the problem perceived by the complaining employee(s). That is, the claimant must have made an effort to bring the problem to the employer's attention..."
"...awkward and even frightening as it may have been to do so. And if the employer responds with an investigation and appropriate corrective action, even if that corrective action does not resolve the problem, it may have a defense."
"The law allows employers to drown workers in endless anti-union propaganda... management can fire you if you don't show up for one of its 'captive audience meetings' designed to defeat your organizing aspirations. However, there are lines that the boss may not lawfully cross."
Use the TIPS acronym to remember them:
T=can't Threaten you for talking about unions
I=can't Interrogate you about unions
P=can't Promise improvements in exchange for no union
S=can't Spy or give impression of surveillance to stifle concerted activity or unions
"Retaliation claims have certain common features:"
1. must be employee (or former)
2. engaged in protected activity
3. employer subjected adverse employment action
4. show action was result of protected activity
Author note on #4: "Most difficult to prove. The employer must be aware of the protected activity... Questions of mixed motive on the part of the employer... and of pretext arise in the context of retaliation as well."
"Openly expressing radical views in the labor movement is easier said than done. The subject is large and complex... Clauses in many union constitutions that deny union membership, or eligibility for union office, to certain kinds of radicals, vaguely defined" are one obstacle.
"Such clauses were typically added to union constitutions during the years just before, during, and just after World War II." Authors cite a 1940 CIO resolution that bars "Communist Party, KKK, or any fascist, totalitarian, or other" opposing democratic principles of US/Canada.
"A clause in the Taft-Hartley Act as originally enacted (1947) required union officers to sign affidavits that they were not Communists before their unions could use the machinery of the NLRB." Similar LMRDA clause from 1959 also given as an example.
"The Supreme Court declared such prohibitions unlawful in US v. Brown... held that mere membership in a political party is not a constitutional reason to exclude a person from union office. It struck down the offensive clause of the LMRDA."
"Garcetti v. Ceballos affirms... that public employees may be protected by the First Amendment when they speak as citizens about issues of public interest... But the Court went on to distinguish speech arising from an employee's workplace duties, declaring..."
"'...when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.'"
"In addition, courts generally hold that comments about wages or working conditions are not 'matters of public concern', and therefore receive little, if any, protection."
"We offer it as our joint experience that radicals are most likely to survive in the workplace (and in the community) if they have been around for a long time and are regarded as capable and friendly persons."
The authors now move away from law, and into a discussion of solidarity unionism (rank-and-file, direct action oriented, membership travels) vs. business/trade unionism (top-down staff not regularly employed at workplace, action directed from above, card don't travel).
"Because the goals and practices of a solidarity union differ significantly from those of a business union, a different legal perspective is also needed."
Business union seeks to be exclusive bargaining agent through NLRB and signed auth cards (leading to passive spectators), and a failed vote for recognition means union sponsors leave workers exposed to discipline and discharge.
If a campaign if successful, the result is a CBA "that gives up the right to strike and any voice in fundamental decisions about the enterprise, and directs the submission of grievances to a legalistic arbitration process."
"In the legal arena, business unions rely on the certification or recognition provisions of Section 9 of the NLRA. Solidarity unions heavily utilize the protection of collective action by Section 7, and the opportunity to file ULPs offered by Section 8."
"Even then it is imperative that shop floor and community struggle not be diverted into the hallways of the NLRB. The serious limitation of ULPs, including lengthy delays, tragi-comically weak remedies, and inadequate substantive protections" must be acknowledged by workers.
Rather than outsource grieving to stewards or agents, workers in a solidarity union "decide together on a course of direct action to right the wrong... thereby harness[ing] their own power and creativity rather than depending on 'professionals'."
Several historical examples are cited, and it notes that this does not preclude agreements with employers, as long as workers "decide for themselves when it is helpful to have a comprehensive written contract... and when it may be better to have no contract at all."
The text then explores concepts of members-only or even non-majority unions as a stepping stone to solidarity unionism, for the long haul, the idea of "acting like a union" despite the NLRB.
"Many of the problems associated with exclusive representation could be avoided if less than a majority of workers could lawfully require the employer to negotiate with them. At present, workers have few remedies for a negligent or inattentive union other than... decertification"
"The worker knows better than management how to do the job, and oftentimes the foreman, if required to do the job alone, is helpless. Therefore the worker uses the supervisor's power against him."
"Whatever written rules exist are followed to the letter. All the informal shortcuts by means of which workers ordinarily maintain production are set aside. Output slows down... 'Working to rule', or as it has also been called 'running the plant backward'" originated in 1900s IWW
More historical examples of "working to rule" used. "Traditionally when the contract expires good union practice requires 'no contract, no work'. But these workers... found that staying inside the plant and engaging in direct action got better results than walking picket lines."
Citing another example, "under US labor law, the company had one major weapon left in its arsenal... carefully choosing a moment (3am on a weekend night shift)... [they] locked out the existing union work force."
"Certain reflections suggest themselves. One has to do with the company's readiness to resort to lockout." Noted that Bell Helicopter also did this, but a defense contractor "may have been less able to sustain this strategy."
"The NLRB has held that workers are *not* protected by Section 7 when they decide for themselves what part of their work to do or at what pace they will labor..."
"...Work to rule is therefore a little like mass picketing: it works when you have large numbers and solid rank-and-file support, but without much help from the law."
"'If it works, it's illegal,' more than one labor lawyer has been know to say about pressure tactics against employers... [however,] it's our view that a good deal of lawful and very powerful secondary pressure has been underutilized."
Authors cite pressure on distribution chain (who has less to lose to comply with worker demands?), community (not subject to Taft-Hartley), customers, and wage theft claims, among others.
Author note on pressure exerted by worker centers, community groups, or other non-labor organizations: "If the support group is found to be an 'agent' of the embattled labor organization, the group will subject the labor organization to liability..."
"...A mere request for solidarity from a union to another entity does not create an agency relationship."
Author note on leafleting and picketing customers: "What union leafleters may not legally do is to induce a strike of the secondary employer's workers or block deliveries to the secondary. As a safeguard, note on the leaflet that these are not the objectives."
"Picketing that targets the employees of a secondary employer is prohibited by Section 8(b)(4). Picketing directed at customers of a secondary employer is restricted but not wholly prohibited."
"The key is to identify the particular product of the primary employer that pickets ask customers of the secondary employer not to purchase. In [the Tree Fruits landmark Supreme Court case], picket signs were held to be lawful because..."
"...they solicited a boycott of Washington State apples and did not call for a boycott of the entire Safeway store where the apples were sold. Be careful, though, if the secondary employer derives nearly all its revenue from the products of the primary employer..."
"...the Supreme Court has held that under those circumstances even picketing directed solely at products of the primary employer is unlawfully coercive."
Concerning an inflatable rat used in the example: "The issue is whether the rat is more like speech or more like a picket. Judges have gone both ways and, as we write, the NLRB has declined to resolve the matter."
"If you want to use a rat outside the workplace of a secondary employer, you can minimize the likelihood of liability by:" clearly directing message to customers, using it when workers *and* customers can see it, and no picketing beside it. A banner with a rat is less risky.
As for wage claims: "The employer's potential liability is a wages and hours case is maximized if its violation is 'willful'... knowingly or recklessly disregarded FLSA violations." If employer retaliates, they could add punitive damages.
"It's critical for solidarity union organizers to stress that lawsuits play merely a secondary role to worker organizing on the shop floor and not to overstate the efficacy of legal action."
"Almost all other industrialized nations provide retirement benefits as government programs financed by taxation. In the US, pensions and health insurance became part of CBAs during and just after World War II."
"Wartime regulations, and the promises of union leaders to 'freeze' wage increases to keep up with inflation in the cost of living. Fringe benefits came to be negotiated as a substitute. Workers viewed these... as deferred compensation."
After an assumed US monopoly on manufacturing proved otherwise by 1960, "it began to become awkward or impossible to pay 3 or 4 retirees their promised fringe benefits from the surplus value created by a single production worker... 'legacy costs'... at the heart of the crisis."
"Labor law and the law under ERISA (the Employee Retirement Income Security Act) provide inadequate remedies:"
1. employers not required to bargain over retiree benefits
2. union negotiators often allow employer to change these provisions unilaterally in contract
3. fed law allows "termination" of some kinds of pension obligations by transfer payment of basic benefits to g'ment
4. fed bankruptcy law says secured creditors get paid before retirees
5. fed bankruptcy law says leave it up to the union to rep retirees
Author note on #5: "This arrangement is unfortunate because retirees in most unions do not pay dues, do not vote for union officers, and do not have an opportunity to ratify or reject contracts."
"As a result, the union has a conflict of interest if it seeks to represent both active members and retirees, and will inevitably tend to favor its dues-paying active members."
"What can retirees do to protect themselves? ...the answer is not to seek a legal solution but to use those legal protections that are available to seek a solution through direct action." Examples of shame were used, through media and face-to-face pressure on several parties.
"Since this booklet was first published (1978) the central economic fact in the lives of many American workers has been plant shutdowns, especially in the 'Rust Belt' of the Midwest... The trade union movement has had no effective response to plant shutdowns."
Major obstacles to a shutdown response:
1. "mgmt prerogative" clause in CBAs after WW2 allowing unilateral investment decisions
2. court cases saying investment determinations are 'core of entrepreneurial control' and not a mandatory/lawful subject of bargaining
"Service industries that cannot move—medical care, education, food and building services, local utilities, construction, trucking—have, in general, offered the only realistic possibilities for union organization."
Why don't we buy the damn place? "With rare exceptions, Employee Stock Ownership Plans (ESOPs) have been successful only in small- and medium-size companies and offer only a temporary strategy for responding to a proposed plant shutdown."
"In some ESOPs, union officers have become board members of the worker-owned entity. Experience suggests that this scenario presents a conflict of interest:" One group to rep worker concerns (wages/safety) and another to rep employees as owners seeking to stay in business.
"Lawful exercise of eminent domain requires two things: a public purpose, which is usually obvious; and sufficient capital to pay the present owner 'fair market value', which is almost never available. The mere threat of eminent domain has been effective in some instances."
"Speaking and leafleting about saving your plant may be considered unprotected by the NLRB... advocacy of an ESOP to buy out the employer is not protected by Section 7 since the proposal did not" advance employee interests as employees, but as owners instead.
"In NLRB v. Fansteel, the Supreme Court said... henceforth, no matter what the employer might have done to provoke the situation, a sit-in or plant occupation was unlawful trespass for which an employee might be lawfully discharged."
"While the law does erect hurdles to immigrant organizing and often treats immigrants like second-class workers, it is possible to build solidarity regardless of immigration status. Indeed, much of the growth in the labor movement is taking place among immigrant workers."
Hoffman Plastic v. NLRB is the landmark Supreme Court case here (2002): worker was illegally fired but not entitled to back pay, arguing immigration law trumped NLRA. Rehnquist maintained "significant sanctions" had been imposed...
"...a piece of paper posted on the wall for 90 days which said that Hoffman would not again fire union supporters, and a *highly* improbable contempt order should the illegal conduct be repeated."
"Hoffman is no doubt a terrible decision but a solidarity union can and must overcome it. You'll see how to get around Hoffman by looking at what the decision did *not* do."
"Hoffman did not take away from undocumented workers their status as 'employees' under the NLRA. Therefore, [they] still have the absolute Section 7 right to organize and to join unions, and retaliation for that activity remains illegal." Important for union-busting scares.
"Hoffman did not involve an employer who *knowingly* hires an undocumented worker as is often the case in industries employing large numbers of immigrants." Justice Breyer's dissent was basis for back pay in other cases.
"Nothing in Hoffman prevents unions, workers' centers, and community groups from deploying the full array of their own direct action tools in support of undocumented workers... potential discriminatees should be advised not to discuss their immigration status with g'ment agents."
Several legal protections are mentioned as vectors of direct action for undocumented employees, which I will leave to the reader. This law is also evolving as we speak, I'm sure.
"The labor movement in the US has a long history of trying to keep workers from other nations out of this country... Borders are nothing but fictions which serve to obscure our common humanity as well as our class interests as working people."
The authors begin a section discussing several methods of cross-border solidarity. "Except for travel to Cuba, the obstacle to travel to other countries is not so much the law but time and money. The rewards are enormous."
"The most frequent form of solidarity with sweatshop workers in other countries has been the activity of students who pressured college administrations not to buy sports paraphernalia from companies that employ sweatshop labor abroad."
"[However,] it has been limited by a consumer-oriented approach and a dependency on third-party monitoring of factory conditions rather than worker self-organization. Far more effective and far less explored, is workers using their power as workers to exert power across borders."
The authors explore the historical attitude, among unions as well, to "new participants in the work force... undercut[ting] wages and benefits won by unions in the US", as well as joint actions between undocumented workers and counterparts in the Global South.
"The universal testimony of workers in all settings is that things go better on the night shift when there are fewer white shirts (supervisors) to interfere with getting the job done right. What if there were never any white shirts to interfere?"
"What if workers and communities ran the business themselves? ...Why shouldn't the democracy we demand in the political arena extend into the workplace where all of us spend so much of our lives?"
"As a matter of fact, in situations with which we are familiar—Barcelona, Youngstown, Pittsburgh, Nicaragua, Argentina—workers showed that they could run the places when they worked without interference from above."
"The signs in Youngstown read, 'If you don't want to make steel here, we will.'"

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14 Oct 17
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