1. The Right of Free Speech
Working people do not shed their free speech rights simply because they desire to join together as a labor union. Unions, worker centers, individual workers, and law firms could—and should—challenge any governmental restriction on workers’ pure and simple words.
|Unions should refuse to comply with orders from the National Labor Relations Board that regulate their written or oral communications to members or the general public. When the NLRB goes to federal court to enforce an order that restricts workers’ speech, unions should raise First Amendment objections.
When any union loses a certification election in which the employer utilized mandatory captive audience meetings, they should appeal the results of the election to the NLRB. Unions should charge that their lack of equal access to the voters on company time and property is an unconstitutional restriction of their speech and that the NLRB should institute an equal time rule for union elections. If successful and an employer refuses to comply with a rerun election, unions and the NLRB should argue in federal court for a free speech standard for workers in NLRB elections.
2. The Right to Self Defense and Mutual Aid
Laws that treat solidarity activism as “prohibited secondary activity” violate workers’ First and Fourteenth Amendment rights.
|Orders from the NLRB to cease “signal picketing” (informational protest activity that does not ask members of the general public to take action) should be defied. When the case gets to court, unions should argue that the NLRB’s order violates their First and Fourteenth Amendment rights. As a precedent gets established, unions should follow a similar course of action for protests that do ask the public to boycott.
3. The Right to Strike
Workers have a right to strike and return to their jobs when the strike is over.
|Public sector unions that strike in defiance of state-level no-strike laws should routinely seek federal injunctions to stop state punishments, by raising First and Thirteenth Amendment objections.
Any time a private sector employer advertises for permanent replacements, unions should file unfair labor practice charges at the NLRB. Unions should demand that the NLRB make employers prove that they are not motivated by anti-union animus, and that they would go out of business if they could not hire permanent replacements. If successful, and an employer refuses to comply with an NLRB order not to hire permanent replacements, the NLRB should argue in federal court that the order is consistent with the legislative intent and the MacKay Doctrine. Unions should argue that the MacKay Doctrine was improperly decided, in violation of the First and Thirteenth Amendments and that it was not consistent with the legislative intent.
4. Labor Organizing Efforts Should Be Free from Unreasonable Search and Seizure
Union organizing campaigns should be free from RICO and other nuisance lawsuits.
|Unions should file unfair labor practice charges at the NLRB against employers that utilize nuisance lawsuits to interfere with workers’ organizing rights.
5. The Freedom from Taking Away Union Fees (or, The Right to Dues Processing)
“Right to Work” laws, which compel unions to provide services to all members of a bargaining unit but forbid them from charging mandatory fees are an unconstitutional “taking.”
|Unions should sue to overturn state “Right to Work” laws in more federal circuits, arguing that the denial to charge any fees whatsoever violates the legislative intent of the Taft-Hartley Act and violates the “Takings” clause of the Fifth Amendment. More recently passed laws should further be challenged on Fourteenth Amendment ground as a politically motivated attack on unions because they tend to support Democratic politicians.
6. The Right to Not Be Locked Out for Exercising Labor Rights
Lockouts interfere with workers’ protected union activity.
|Unions that get locked out should file unfair labor practice charges at the NLRB for retaliation for union activities. When the case gets to the courts, argue that the lockout deprives workers of their due process rights under the Fifth Amendment
7. The Right to Your Job
All workers deserve a Just Cause standard of employment.
|State legislation, passed through referenda in blue states.
8. Freedom From Cruel and Unusual Regulation
Unions should not be subject to substantially greater financial disclosure requirements than employers.
|Rule changes at Department of Labor to require more disclosure from all agents of management. Lawsuits challenging lack of comparable salary and expenditure disclosures on the part of employers as violations of Fourteenth Amendment.
9. The Right to Make Demands and Bargain Freely
Governmental regulation of the “scope of bargaining” is a restriction of workers’ speech.
|Public sector unions should make bargaining demands over “illegal” or “restricted” subjects of bargaining. When employers cite the law and refuse to bargain, unions should sue in federal court on First Amendment grounds. Private sector unions should file unfair labor practice charges when employers refuse to bargain over “permissive” subjects. When the case gets to court, argue that NLRB vs. Wooster Division of Borg-Warner was improperly decided and a violation of workers’ First Amendment rights.
10. Powers Not Exercised by Unions Are Reserved to Workers Who Act in Concert
The protections of the NLRB are not limited to workers in unions.
|Unions and their allies should launch a sustained digital campaign to make nonunion workers aware of their rights in the workplace. Unions should push the next Democratic-majority NLRB to reissue a legal posting requirement in all covered workplaces.
For a comprehensive and scholarly article on “Labor’s Bill of Rights from THE CENTURY FOUNDATION, CLICK HERE.