Tuesday, December 30, 2014

A constitutional catalyst can re-unionize America (as easily as burning sugar under water)

Too obviously, commercial speech (selling soap) is no way nearly as constitutionally protected as political speech (Gettysburg Address).  Not nearly so obvious to the broad swath of public opinion is that commercial association (collective bargaining) should be on almost the high plane of political association (demonstrating) – given its core impact on almost everyone's lives (extracting the max the labor market is able to pay – instead of the min the labor market is willing to pay).

Historically, only labor organizations have empowered the average person with political muscle (campaign financing and lobbying) equal to ever persistent business interests -- deservedly ranking commercial association right along side political association -- and freedom of speech.

Saith the Wisconsin Supreme Court reaffirming legislation that sharply curtailed state employees bargaining scope: “… collective bargaining remains a creation of legislative grace and not constitutional obligation. The First Amendment cannot be used as a vehicle to expand the parameters of a benefit that it does not itself protect … ” [my emphasis]  http://www.jsonline.com/news/statepolitics/supreme-court-to-rule-thursday-on-union-law-voter-id-b99321110z1-269292661.html 

Labor’s threshold question here can only be: could any government — federal, state or local — constitutionally bar all employees from collectively bargaining with any employer(s)? Seems impossible given any sensible take on freedom of association. Courts may balance constitutional rights against other interests, or course.  But, at what point along what spectrum may a core constitutional right be said to transmogrify into a non-binding “creation of legislative grace”?
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Judicial action?
Labor can challenge type laws that arbitrarily shrink the scope of bargaining.  Wisconsin limited bargaining by state employees to wages (capped to inflation! -- ever hear of econ growth?), all gone on benefit cuts, yearly contracts and union re-certifications, whole categories like home care and child care workers stripped of all bargaining.  Illinois recently passed crackpot legislation requiring public school teachers to have a 75% majority vote to strike (they did!). http://en.wikipedia.org/wiki/2011_Wisconsin_Act_10

"Union Bargaining a Dream For Many State Workers" -- runs off a long (and growing) story of states that have reduced state employee bargaining leeway from short to none.  http://www.nbcnews.com/id/41810901/ns/business-us_business/t/union-bargaining-dream-many-state-workers/#.VKIEAP8FAE 

Legislative Action?
SCOTUS just ruled federal law supposedly allows Amazon not to pay workers for security check time when leaving -- California labor law says very differently (perhaps also Nevada, Arizona and Pennsylvania).  A state may add a face shield requirement to an OSHA helmet requirement.

State card check?  That the current federal schematic sets up a gauntlet almost no one can pass (50% of private employees are said to want union membership -- but only 5% and going down[!] have it) could create a powerful impetus for First Amendment protected state facilitation of genuinely workable labor organizing schemes -- if there were any question of federal preemption.  

Centralized bargaining!  Should be considered the gold standard of collective bargaining – wherein employees in similar occupations negotiate one universal contract with employers in similar businesses -- the only practicable (75 year, round the world tested) solution to the, otherwise inevitable, labor market race-to-the-bottom.  Given America's unorganized-organized labor -- wherein unorganized Walmart undermines the contracts of organized super markets; where even organized regional airline pilots with $100,000 educations and a hundred lives in their hands are reduced to applying for food stamps -- states could make a heavy substantive case for any First Amendment protected, facilitation of, or even mandating of, sector-wide labor agreements -- again, assuming any preemption question exists.    

A wild card here may be invoking minority union representation where no majority union exists.  This was how American unions often came into being and how they often remained (most Western European unions are minority unions) in the era the Wagner Act was passed -- and other than having fallen out of practice seems to be a federally condoned path to collective bargaining -- according to 230 pages of close analysis by professor Charles J. Morris in his, 2005, book The Blue Eagle At Work: Reclaiming Democratic Rights in the American Workplace (which I'm currently wading through)

PS.  For more encouragement check out Chicago labor lawyer Thomas Geoghegan's latest book: Only One Thing Can Save Us: Why America Needs a New Kind of Labor Movement