Labor must demand its freedom under the Constitution

Bill Knight column for Thursday, Friday or Saturday, Nov. 2, 3 or 4

Some people must have seen news about marches by Ku Klux Klan, Nazi or other right-wing extremists and thought, “If it’s acceptable for white supremacists to picket, why can’t organized labor engage in some picketing”?

Nazis use their rights as Americans under the 1st and 14th Amendments to rally and communicate foul messages, but when workers use “signal picketing” – demonstrations that tell vendors, customers, neighbors and others relatively neutral in a labor dispute that their support is needed – they can be legally punished by employers or the National Labor Relations Board (NLRB), which may consider such actions threatening or coercive.

When unions are involved, the current climate seems like the early 1800s, when workers organizing to negotiate as a group with employers was dismissed – or prosecuted as a criminal enterprise.

That business-cozy government position continued for more than a century, until President Franklin D. Roosevelt helped pass the National Labor Relations Act in 1935, when Congress legitimized – really, legalized – collective bargaining. However, the statutory recognition of unions isn’t the actual foundation on which workers’ rights are built, according to long-time labor organizer Shaun Richman.

“Those rights are rooted in the Constitution through the rights of free speech and equal protection, as well as freedom from involuntary servitude,” Richman said. “Labor laws simply regulate those constitutional rights, much as election laws regulate the right to vote. And just as restrictive voter ID laws can violate citizens’ voting rights, bad labor laws can trample workers’ rights.”

Bad labor laws?

Yes, as courts and the NLRB have shown the National Labor Relations Act (NLRA) to sometimes be.

FDR, Congress and the Supreme Court eventually justified the NLRA (the Wagner Act) as authorized under the U.S. Constitution’s commerce clause (Article I, Sec. 8), which states that the United States Congress shall have power “to regulate commerce with foreign nations, and among the several states …”

That’s meant that when unions are forced to to take disputes to court, clashes are decided based on their effects on business, not on Americans’ freedoms.

Interestingly, the relatively conservative American Federation of Labor (as opposed to the originally progressive Congress of Industrial Organizations) in the 1930s argued that the Wagner Act letting workers organize should derive its power from the 13th Amendment, which states, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States …”

Labor leader Andrew Furuseth, a founder of the International Seamen's Union active in the AFL, said achieving the Wagner Act as interpreted as an accessory to the commerce clause neglected the basic rationale of doing collectively what cannot be done individually.

Furuseth believed that labor actions are actually comparable to guaranteed freedoms such as speech because “there [could be] no half loaf on fundamental principles. Whether a man or woman shall belong to himself or herself or not is fundamental, as is the question whether or not that man or woman shall have a right to combine with others for the purpose of mutual aid,” as quoted in James G. Pope’s 2011 book “What's Different About the Thirteenth Amendment, and Why Does It Matter?”

Today, unions have been attacked for so long they’ve grown accustomed to concentrating on defense instead of offense, and Richman argues that organized labor must start pushing collective bargaining as rooted in our rights, from pushing the NLRB to recognize unionists’ rights as citizens to defying the Board and even courts.

He concedes direct actions may be necessary but adds that they can be effective. In one observation pertinent to Illinois – where Gov. Bruce Rauner seems bent on breaking the American Federation of State, County and Municipal Employees, then the whole labor movement – Richman recommends seeking injunctions from federal judges to stop states from blocking union actions under the 1st and 13th Amendments.

“It is time for unions to return to demanding workers’ rights without apology,” said Richman, who in July proposed a Workers Bill of Rights “rooted in the Constitution” in a report for the Century Foundation: free speech, freedom from cruel and unusual regulation, the right to strike, the right to your job, freedom from unreasonable search and seizure during organizing drives, the right not to be locked out for exercising labor rights, the right to to process union dues, to self-defense and mutual aid, to make demands and bargain freely, and for non-union workers to also engage in concerted activity.