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Could There Be A ‘Silver Lining’ In The Friedrichs’ Decision? Former AFT Organizing Director Shaun Richman, Via In These Times, Opines: How Friedrichs Could Actually ‘Unleash’ Unions From Decades Of Free Speech Restrictions

Published Monday, February 1, 2016
by Shaun Richman Editor’s Note: Shaun Richman is a former Organizing Director for the American Federation of Teachers (AFT).  His Labor Perspective originally appeared In These Times and can be directly accessed at:


As the spring semester starts up at the City University of New York, Union Activists continue the painstaking work of preparing for a Strike Authorization Vote.

Faculty and Staff at CUNY have been working without a contract for over five years, while Governor Andrew Cuomo disinvests in the primary college system for Working Class New Yorkers and management proposes salary increases that amount to decreases after inflation.

The parallels between the struggle to save CUNY and the struggle over the future of Chicago Public Schools are obvious, with one major exception: it is totally illegal for Teachers to Strike in New York. 

The last major Union to violate the draconian Taylor Law – Transit Workers Union (TWU) Local 100, was fined $2.5 million for waging a 60-hour Strike that shut down the city’s subway and bus system in 2005.

On top of that, the Union’s ability to collect dues money was suspended for a year, its president jailed for 10 days and each individual Striker was fined two days pay for each one day on strike.

But in an interesting twist, the Anti-Union Friedrichs v. California Teachers Association (CTA) case currently under consideration by the U.S. Supreme Court could actually lay the ground work for making Public Employee Strikes in New York and elsewhere constitutionally protected free speech.

One could understandably be confused about how a collective protest that involves refusing to work could even be illegal in a country that prides itself on its supposed pursuit of life, liberty and whatnot.

How is a Strike and Picket Line not a constitutionally-protected exercise of free speech and free assembly?

And how is prohibiting Workers from striking not a violation of the 13th Amendment’s protection from involuntary servitude?

Early on in our nation’s history, Conservative Courts treated Unions as criminal conspiracies and Strikes as interfering with employers’ property and contract rights and with Congress’ responsibility to regulate interstate commerce.

Rooted in imported English Common Law and beginning as early as 1806, these instances of what early Unionists derided as Judge-Made Law, should be regarded as a betrayal of the American Revolution.

As detailed in William Forbath’s Law and the Shaping of the American Labor Movement, Unions’ Legislative Agenda during the 19th and early 20th Century was basically to get the government and courts out of Labor Disputes.

Unions sought to have Labor legally defined as “not a commodity” and to restrain judges from issuing injunctions against pickets and boycotts, with mixed results.

By the time the National Labor Relations Act (NLRA) was passed to encourage and regulate Collective Bargaining, its framers recognized that if they rooted the Act’s authority in the 1st Amendment, it would not be found constitutional by the Conservative Supreme Court - and so, Labor Rights in this country are rooted in the Interstate Commerce Clause, which is why they’re so wonky.

Public Sector Unions, whose ability to function is immediately at stake in the Friedrichs case, are not covered by the Federal Labor Act.  Instead, many states passed laws that are modeled on the NLRA, but with a crucial difference: when bosses get to pass laws that apply to their Employees (which, if you think about it, is exactly what Public Sector Labor Law represents), they’re guaranteed to make it even more unfavorable than private sector rules.

Unsurprisingly, many states make Strikes by Public Sector Employees like the CUNY Faculty and Staff totally illegal, or else severely restrict them.

Many states also make many Union demands illegal, either by statute or by judicial decisions.

The Friedrichs case, by inserting Public Employees’ 1st Amendment Rights into Collective Bargaining could give Unions a very useful tool for reversing many Anti-Union Measures that are on the books.

To Read the Rest of This Labor News Perspective, Go to:



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