Open thread Jan. 13, 2014 Dan Crawford | January 13, 2015 7:23 am Tags: open thread Comments (10) | Digg Facebook Twitter |
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 (Addressing Gettysburg). Not nearly so obvious to the broad swath of the general public is that commercial association (collective bargaining) should be on almost the high plane as 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]
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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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!).
“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.
I see many state labor reforms as in non-conflict with federal preemption as, say, supplementing a federal OSHA rule requiring hard hats on certain job sites with a state rule requiring face shields too. 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).
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 — assuming any preemption question in the first place.
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 (which I’m currently wading through).
One example, just to expand on the general notion of state ability to regulate collective bargaining: state law could conceivably mandate (not that it would be a good idea) that minority unions of some description may be the exclusive bargaining agents for all of their firms’ employees — as long as no majority union exists and therefore no federal preemption conflict arises.
A tricky preemption test might examine the right of employers to hire replacement workers (scabs) when federal law permits it, but state law forbids it. The finding might turn on whether the intention of Congress was positive or negative, the latter meaning to just keep out of the way.
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.
“Halleluiah brother, I am here to comfort the sinner and return the stray lamb to the fold….”
Course, the more cynical among us would say the fossil fuel money ran out…..
this is a response to coberly’s message to me on the cast iron frying pan thread, in re his pensions & social security post:
it’s unlikely i’ll be a repeat offender, Dale..i had just written about oil derivatives in relationship to that same budget bill, and just the mention of it in your post touched the same nerve…henceforth, i’ll take my rants to the open thread, like i’m doing here..
while i’m here, i might as well post what i wrote on the Keystone pipeline over the weekend…
it now seems certain that Congress will pass a bill mandating approval of the Keystone XL pipeline, and that Obama will veto it…the house passed just such a bill on Friday by a vote of 266-153, and indications are that at least nine Democrats will join the Senate Republican majority in passing the same bill and sending it to Obama next week…communiqués from the White House have indicated that a veto will be forthcoming; all that remains to be seen now is if those favoring construction of the pipeline can get enough support to override the veto; one tally counts at least 64 votes in favor of the pipeline in the new Senate…also clearing the way for construction, the Nebraska Supreme Court reversed a lower court’s decision that blocked the pipeline route through the state, once again giving the pipeline a legal go ahead…however, even if Obama’s veto is overridden, it’s not certain or even likely that the pipeline would be built anymore…as we pointed out in November, the Canadian Energy Research Institute estimated that oil-sands projects need a price of $85 a barrel to be profitable in the current cheapest (in situ) method, and that new mines will require $105 a barrel oil to be profitable; other estimates of costs for tar sand extraction are similar…terminal prices for West Canada Select (heavy) crude oil have been below $35 per barrel all week, and Canadian projects are shutting down even faster than those in the US, and some of that started even before prices fell; Norwegian oil giant Statoil pulled out of their tar sands project in September…in the past year, Shell, the French oil giant Total, and SunCor of Canada all cancelled their tar sands projects…even China’s CNPC International pulled out of the oil sands and withdrew its support for Enbridge’s Gateway project to deliver tar sands oil to the west coast…and with current tar sands production already flowing into the US through the Alberta Clipper pipeline to Wisconsin and the Flanigan South pipeline through Illinois & points south, there may not be enough additional tar sands output to justify construction of another redundant pipeline…so if approval of the pipeline from the US is forthcoming, and there is no tar sands oil to be shipped, it now seems quite likely that TransCanada would either delay or cancel the Keystone XL project altogether…
since i wrote the above, the Senate has approved the Keystone, SB-1, by a vote of 63 to 32…
i didn’t regard you as an offender. i don’t mind, as you see, conversations that wander “off topic” or even the insertion of a “personal note.”
i just observed that the usual hall monitors were not in evidence … those who were screaming “off topic, off topic” when I disagreed with them.
EM, since you like BEST as a source, how long is the “pause/hiatus” there? BTW, BEST is land only. It has never been accepted as a valid method. Even the paper describing it took years to get peer reviewer approval.
Nah, I am just interested in the saving of a sinner. Don’t care why he was saved.
RJs — very good.
I would love to see the Republicans push through approval and than the pipeline never gets built.
It always amazes me how conservatives are always so willing to interfere in the free market’s operations.
Reminds me of all the arguments about no refineries being built.
it seems the longer it’s delayed, the less likely is that they’ll build it, Spencer, cause tar sands production is slowly winding down…Suncor, single largest tar-sands producer, just announced yesterday they’re cutting 1000 jobs…