farmworkers janitors campaign in los angeles, 1990-2002

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Rebalancing Economic and Political Power:

A Clean Slate for the Future of American Labor Law

Literature Review Memo

WG III: Collective Action

1. Introduction

Working group III is focused on law’s relationship to workers’ freedom to fight for change in their workplaces and beyond. Our vision is that law should protect workers’ political and social engagement, a concept that includes workers’ collective advocacy for workplace and broader social change, free from employer interference. More specifically, we are tasked with considering what forms of collective action can empower workers, including striking, picketing, and boycotting; and collective action in cyberspace. We think of “workers” broadly, including public sector workers, agricultural and domestic workers, independent contractors, supervisors, etc., although the scope of who is covered by labor law is mainly the purview of other working groups.

This literature review mainly relies on case studies to discuss how US labor law inhibits and empowers workers’ collective action. Group III RAs Rio Scharf and Joey Cherney have drafted a memo discussing our main case studies in depth; this memo references but does not duplicate their work, and so the two documents should be read together.

2. Under current labor law, workers’ legitimate targets for collective action to improve working conditions are too limited.

a. Introduction

During our December working group meeting, group members and others seemed enthusiastic about removing the current barriers that workers face in choosing targets of collective action. One option would be to simply remove all legal barriers to workers’ collective action, so that practical constraints on workers’ resources and attention to act as the only limits on the workers’ collective action.

Alternatively, we could explore a middle ground that would ensure that workers can target their “economic employers” – entities that have the market power to set wages & working conditions. For example, Mark Barenberg has argued for reform so that “an entity would be deemed an ‘indirect employer’ of a given employee if it has ‘sufficient bargaining power’ (vis-à-vis the direct employer) to determine the employee’s ‘terms and conditions of employment.”1 Or, more simply, “an entity is an indirect employer if,

1 http://rooseveltinstitute.org/wp-content/uploads/2015/10/Widening-the-Scope-of-Worker-Organizing.pdf

Research Draft prepared for Clean Slate Project - Not for Circulation, Citation, or Attribution

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assuming it had the will to do so, it could approach the direct employer and successfully insist that the direct employer agree to terms and conditions of employment specified by the entity.”2

b. Example cases

i. CIW, Justice for Janitors: Successful campaigns that focus on rate-setters & take labor out of competition

The Coalition of Immokalee Workers Fair Food Campaign and Program illustrates the importance of targeting rate-setters, which often are not the employers of the relevant employees.3 The CIW launched its Campaign for Fair Food in 2001, with the goal of convincing large buyers – McDonalds, Sodexo, Walmart, and others – to pay one penny per pound more for tomatoes, on the condition that growers comply with the fair Food Code of Conduct.4 This campaign succeeded despite dire working conditions and legal disadvantages facing workers: some workers were survivors of human trafficking who worked in conditions that amounted to involuntary servitude; many were immigrants who spoke either Spanish or indigenous languages and therefore could not always easily communicate with each other or with consumers; and the NLRA’s exclusion of agricultural laborers (and absence of state-level protections for farmworkers’ collective action) meant that workers would have little legal recourse if they were fired in retaliation for their activism.

The CIW began its innovative focus on large buyers just as those buyers were accumulating more market power through consolidations, and as increasing gas prices increased cost pressures on growers.5 The CIW’s key insights were that if large buyers could depress wages they could also raise them; and that those large buyers (unlike growers) were household names that cared deeply about their brand image and therefore could be influenced by consumer-focused publicity campaigns. Accordingly, the CIW began this stage of its work by calling for a consumer boycott of Taco Bell. This stage of the campaign involved a multi-city publicity effort that involved customers, shareholders (about 40 percent of whom voted in favor of “resolutions supporting the CIW”, and allied social movement and religious groups.6 It succeeded four years later, with Taco Bell agreeing to work with CIW to improve farmworkers’ wages and working conditions. CIW then replicated this strategy with McDonalds, and then with other brands. 2 Id.; see also Brishen Rogers, Libertarian Corporatism is not an Oxymoron, 94 TEX. L. REV. 1623 (2016) (arguing that an agency could be delegated authority to “determine whether a lead firm is an appropriate bargaining partner with a union representing workers within its supply chain.” 3 There are several other important aspects of the Fair Food Campaign & Program, and the CIW’s work more generally, such as its “popular education” strategy that brings workers together to talk about their lived experiences and strategize potential solutions to shared problems. Susan L. Marquis, I Am Not a Tractor 21; see also Manoj Dias-Abey, Justice on our Fields: Can Alt-Labor Organizations Improve Migrant Farm Workers’ Conditions?, 53 HARV. CR-CL L. REV. 167 (2018) (discussing CIW’s work and situating it against that of other farmworker justice organizations). This memo focuses mainly on the CIW’s campaign to encourage large buyers to require growers to sign on to the Fair Food Program; it does not discuss either CIW’s other activities, or potential legal barriers to replicating CIW’s model that do not bear directly on workers’ collective action. Cf. Heather M. Whitney, Rethinking the Ban on Employer-Labor Organization Cooperation, 37 CARDOZO L. REV. 1455 (2016) (discussing that because CIW is not a “labor organization,” it may accept money from employers). 4 http://www.fairfoodstandards.org/resources/fair-food-code-of-conduct/. The Code of Conduct governs when, how, and how much workers will be paid; health and safety measures, and more. It also establishes an enforcement mechanism. 5 Marquis at 47. 6 Id. at 64-65.

http://www.fairfoodstandards.org/resources/fair-food-code-of-conduct/


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As brands started signing on to work with CIW, the Florida Tomato Growers Exchange responded with collective action of its own: it “agreed to a $100,000 fine for every instance of any member grower cooperating with the CIW and the Fair Food Program.”7 The FTGE also claimed that participating in the program violated antitrust law, and raised the specter of other legal problems.8 It then attempted to start its own competitor labor standards verification organization – though that effort fell apart when brands decided to stick with CIW.9 In short, the CIW’s ability to organize brands through relentless, nationwide collective action was critical to overcoming the resistance of the FTGE and its member growers.

The Fair Food Program emerged after several years of more traditional collective action that had resulted in some successes, but little enduring change. The CIW had “organized community-wide strikes and work stoppages to pressure Florida growers to increase the tomato harvesting piece rates,” and worked with the Department of Justice on forced labor cases.10 But while that “burst of activity brought new visibility to Florida’s farmworkers, and even succeeded in eliminating proposed wage cuts and the most egregious abuses in the fields, the CIW was unable to significantly raise wages across the board or to even compel growers to join its members at the negotiating table.”11 It was not until the CIW focused on the large buyers that exerted downward pressure on prices (and by extension wages and working conditions) that their campaign succeeded in creating enduring structural improvements for workers.

Justice for Janitors began in 1986 in Pittsburgh, and quickly spread. Like the CIW, J4J realized that the customers that hired the small, often fly-by-night companies for which they worked held most of the power over janitors’ wages and working conditions; moreover, if a subcontractor’s workers voted to unionize, its customers could simply move on to another subcontractor.12 Also like the Florida farmworkers, the janitors involved in J4J were a largely immigrant workforce.

J4J relied on collective action aimed at building owners and tenants to use union contractors, and to convince janitorial companies to accept neutrality and card check agreements.13 These actions included public-facing actions, civil disobedience, and strikes, including a 1990 strike in during which Century City police brutally attacked strikers; the televised attack ultimately galvanized support for the janitors in Los Angeles and beyond.14 As Erik Loomis recounts, “by 2000, the Justice for Janitors campaign had organized janitors around the country, with companies seeking to sign new contracts in order to stave off bad publicity SEIU had successfully used in Los Angeles and elsewhere.” The result was master contracts that applied to organized employers throughout Los Angeles and other cities.

Unlike the CIW, the janitors were employees covered by the NLRA, and the SEIU is a “labor organization.” Among other things, this meant that the janitors had to contend with Section 8(b)(4) of the NLRA. As Erickson et al. explained, “many janitors work in office buildings where there are a number of employers. As a result, protests outside the building may be deemed to be pressure against employers other than the janitors’ own. Second, janitors might be prohibited from pressuring building owners because the 7 Id. at 76. 8 Id. 9 Id. at 92. 10 Greg Asbed & Sean Sellers, The Fair Food Program: Comprehensive, Verifiable and Sustainable Change for Farmworkers, 16 Penn. J. L. & Soc. Change 39, 43 (2013). 11 Id. 12 See, e.g., Christopher L. Erickson et al., Unions and Low-Wage Immigrant Workers: Lessons from the Justice for Janitors Campaign in Los Angeles, 1990-2002, available at https://escholarship.org/content/qt6ch053x1/qt6ch053x1.pdf 13 Erik Loomis, A History of American in Ten Strikes, 211. 14 Erickson et al.


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building service contractors, not the owners, are the janitors’ employer and the owners might be deemed to be secondary employers.”15 Predictably, the J4J campaign led to various NLRB charges, many of which were settled.16

ii. Port Truck Drivers, SafeRates: Campaigns illustrating both challenges of classifications that rule similarly situated workers in or out of labor law, and importance of targeting economic employer

Safe Rates17 is an Australian campaign focused on “how the transport supply chain contributes to on-road safety through the chain of responsibility principle in road transport law.”18 The Transport Workers Union’s campaign seeks legislative improvements as well as National Enterprise Agreements with major trucking companies. As the name suggests, a main message is that improving pay and conditions for drivers will make roads safer for the public, with a focus on how industry fragmentation with big players driving down prices contributes to road fatalities.

The Justice for Port Drivers Campaign is yet another example of a campaign attempting to overcome an organizing environment that features a large number of small employers, who are themselves pressured by huge rate-setters (both large shipping companies like Maersk and customers like Wal-Mart). This example adds rampant misclassification to the mix – many truck drivers are treated as independent contractors, though drivers have had some success with the California Labor Commission in bringing hundreds of misclassification cases, resulting in tens of millions of dollars in awards.19 Still, as campaign director Nick Weiner described, “it’s really one very large organizing group of workers; they have multiple employers, but it’s really one unit . . . There aren’t many places in our economy now where you have such a large group of workers [in one place].”20

This campaign illustrates two intersections with other working groups that we should consider in the next stage: first, it involves questions about who is covered by labor law; and second, intersecting legal regimes, including antitrust law. In addition, federal preemption – here, under the Federal Aviation Administration Authorization Act – invalidated a key campaign win, in the form of a provision of the Los Angeles Clean Truck Program that would have converted drivers to employees. (The Clean Truck Program was also a win for a blue-green coalition; in addition to the labor-related provisions, the Program required trucking companies to upgrade their fleets to reduce carbon emissions.) The preemption ruling led to the worst of all possible worlds for drivers. As Scott Cummings explained, “the industry lawsuit did not challenge the entire Clean Truck Program and left standing the conversion of the port trucking fleet to low-emission vehicles. . . . In so doing, the drivers themselves suffered a setback: with employee conversion

15 Id. at 22. 16 Id. 17 See saferates.org.au 18 Safe Payments: Addressing the Underlying Causes of Unsafe Practices in the Road Transport Industry, National Transport Commission 19 Jon Zerolnick, Truck Driver Rights and Recent California Rulings, OnLabor, July 31, 2014; Aurora Percannella, Under a New Law, Retailers Share Liability for Misclassified Truck Drivers at California Ports, LA Times (Sep. 25, 2018) (“According to the California labor commissioner, 987 drivers have filed complaints with the Division of Labor Standards Enforcement since 2011, and they were awarded more than $48 million in unpaid wages and out-of-pocket expenses.”) 20 Justin Milller, The Fight to Organize Port Drivers – Modern-Day Indentured Servants, American Prospect (June 26, 2017) https://prospect.org/article/fight-organize-port-drivers-modern-day-indentured-servants.


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undermined in federal court, drivers assumed the burden of purchasing and maintaining clean trucks without the economic benefits promised by employee status.”21

iii. Toys R Us: Targets of collective action should include non-employer owners/capital

As Carrie Gleason discussed during the December working group meeting, decisions that profoundly affect workers are sometimes made by private equity firms, rather than directly by employer themselves. Bain capital and partner firms bought Toys R Us in 2005, for a combination of cash and debt. In the ensuing years, a combination of competitive pressure from Amazon and other online retailers and the funds’ creditors bled the company, eventually forcing it into bankruptcy even as its operating income grew. As a Toys R Us Vice President put it, “ultimately our creditors determined that a liquidation of our U.S. business provided more value for them.”22

The liquidation process meant that more than thirty thousand workers lost their jobs. Toys R Us initially gave workers 60 days notice of the shutdown as required under the WARN Act, but maintained that because of the bankruptcy, workers would receive no severance payments. In response, workers (who at this point had very little to lose) organized on Facebook and in person to protest their and the company’s treatment by Bain and other funds. Workers protested at Toys R Us stores and headquarters (including by briefly occupying one New Jersey store), briefed lawmakers, and more.23 Eventually, the workers’ pressure campaign forced Bain Capital and another private equity firm to create a $20 million severance fund outside of the bankruptcy process.24

iv. Shareholder Spring

c. Current Barriers

i. 8(b)(4), 8(b)(7)

A raft of legal scholarship—too much to list here—analyzes and criticizes the NLRA’s restrictions on secondary and recognitional picketing, particularly in the age of the “fissured workplace. Much of that scholarship observes that one reason CIW could target brands rather than growers is that it is not a labor organization, and agricultural laborers are excluded from coverage under the NLRA; conversely, many writers have also documented how restrictions on secondary activity hampered J4J. Port truck drivers may be in the worst possible position vis-à-vis the application of labor law, as a group of workers that includes both employees and potentially-misclassified independent contractors must contend with both labor and antitrust law.

ii. State law (e.g., NC farm bill; public sector labor law)

Where the NLRA does not apply to employees or employers, states may step into the void. In North Carolina, the 2017 Farm Act sought to hobble farmworkers and the Farm Labor Organizing Committee by making legally unenforceable both dues checkoff agreements, and agreements “not to sue or to settle litigation” that are contingent on “an agricultural producer’s . . . entry into or refusal to enter into an agreement with a labor union or labor organization.” Plainly, the statute’s goal was to inhibit FLOC’s 21 Scott L. Cummings, Preemptive Strike: Law in the Campaign for Clean Trucks, 4 IRVINE L. REV. 939, 944 (2014). 22 David Dayen, Toys R Us Workers Take on Private-Equity Barons: ‘You Ought to be Ashamed’, The Nation June 5, 2018 https://www.thenation.com/article/toys-r-us-workers-take-private-equity-barons-ashamed/. 23 Laid-off Toys ‘R’ Us Employees Protest for Severance, https://www.wnyc.org/story/laid-employees-protest-toys-r-us-refusal-provide-severance-after-bankruptcy/ 24 Chris Isidore, Toys ‘R’ Us Owners Will Hand Out 420 Million Severance to Employees, https://www.cnn.com/2018/11/20/business/toys-r-us-severance-fund/index.html


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ability to organize workers in a sustainable way. (FLOC and the ACLU filed a lawsuit challenging the Farm Act on First Amendment grounds, and a magistrate judge has recommended that the statute be preliminarily enjoined.)25

iii. Antitrust law [WG V]

b. Other questions/ideas to explore in the next stage:

i. Research approaches to defining who is the economic employer from other contexts, e.g. antitrust. Consult with Mark Barenberg, Hiba Hafiz.

ii. Consider whether new corporate disclosure requirements would help workers identify the appropriate targets. At present, there are a handful of online tools (listed below) that provide some information about connections between corporate entities. For example:

1. littlesis.org – this site calls itself “an involuntary facebook of the 1%.” It tracks “key relationships of politicians, business leaders, lobbyists, financiers, and their affiliated institutions,” and is maintained by the Public Accountability Initiative.

2. Hedge Clippers (hedgeclippers.org) aims to bring to light connections between “hedge funds and billionaires” and government.

3. The Action Center on Race and the Economy (acrecampaigns.org) “provide[s] research and communications infrastructure and strategic support for organizations working on campaigns to win structural change by directly taking on the financial elite.” For example, a report entitled “Taking on the Corporations Behind the Muslim Ban” maps connections between companies that contribute to politicians who support policies such as the travel ban; defense contractors; private prisons; and more.

iii. In addition to economic employers, we should keep in mind that some workers’ antagonists could include organizations/individuals who are actively lobbying to limit worker power through the legislative process. For example, it could be important for public sector workers to be able to engage in collective action targeting members or funders of the American Legislative Exchange Council.

3. Labor law can take too narrow a view of the issues that affect workers.

a. Introduction:

To state the obvious, workers’ well-being depends on both their treatment by their employers and a range of other intersecting policy choices related to immigration, housing, transportation, and (much) more. While the NLRB and the Supreme Court have interpreted the scope of protected concerted activity under the NLRA fairly broadly, questions still arise about whether workers are protected when they engage in wide-scale protests centered around issues like immigration law. The sense of our working group so far is that the scope of labor law should be broad enough to encompass these issues. At the same time, we recognize that labor law cannot be all-encompassing. Therefore, one challenge for the next stage of the process will be to devise definitional boundaries that have content, and yet are flexible enough to meet

25 FLOC v. Stein, 1:17-cv-1037 (2017).


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workers’ changing needs. In addition, large- and small-scale informal organizations & “pop-up collective action” focused on issues that affect workers should be empowered.

b. Example cases

Our working group’s case study memo includes two illustrative examples. The first is the #RedForEd teachers’ strikes. Here, it was plain that teachers were on strike in their capacity as workers, but their demands centered their communities and the common good, sometimes even going beyond conditions in and funding for schools. (For example, both West Virginia and Arizona teachers demanded wages for all public sector workers.) Our second example focuses on the massive (but short-lived) mobilization against the 2006 Sensenbrenner immigration reform bill. Here, labor unions were a key part of the coalition that protested the bill, which would have placed unauthorized workers in (greater) jeopardy. The links between work and immigration law are virtually self-evident – the workplace is a key site of immigration enforcement, and the strategic invocation of immigration law by employers is a major deterrent to both worker organizing and work law enforcement. Yet, a 2008 General Counsel memo found that the “A Day Without An Immigrant” protests were not protected by Section 7 because private sector employers could not unilaterally change immigration law. And although a 2016 General Counsel memo reached the opposite conclusion, the language in Epic Systems v. Lewis that Section 7 protects only “things employees just do for themselves in the course of exercising their right to free association in the workplace” might place the legal status of these protests under the NLRA in greater doubt.

c. Current Barriers: the (potential) narrowness of Section 7’s protection for concerted activity, and the narrow scope of much public sector labor law.

The dueling General Counsel memos described in our narrative about the 2006 immigration protests reflects the uncertainty about whether Section 7 protects workers’ collective action aimed at influencing immigration policy. That uncertainty is itself a problem: especially considering the minimal penalties attached to violating workers’ Section 7 rights, there was little reason for employers who wanted to punish employees for taking part in the Day Without an Immigrant protests to refrain from doing so. In other words, this episode reflects three interlocking problems related to the subject-matter boundaries of Section 7: first, the protections themselves may be too narrow; second, there is no way to resolve new questions about Section 7’s scope in advance, and so uncertainty about what is covered could chill workers’ collective action; and third, limited employer penalties are too weak to reciprocally chill employers’ retaliation against workers who take collective action that is only arguably covered by Section 7.

For public sector workers, the situation can be more complex and varied. In many jurisdictions, public sector workers are statutorily prohibited from striking, and workers’ collective bargaining is limited to a narrow list of topics that relate narrowly to wages and working conditions. On the other hand, collective action that takes place outside of working time (that is, protests that are not strikes) are protected by the First Amendment, albeit under the limited Pickering standard.

4. Even where labor law formally protects collective action, it also enables employers to impose significant costs on workers who strike, while leaving workers who engage in many less risky forms of collective action unprotected.

This portion of our memo encompasses two related problems with current labor law. First, the NLRA allows employers to impose significant costs on employees’ collective action even when it is protected under Section 7 – here, obvious examples include replacement workers and lockouts, though we list other examples below. Second, labor law leaves unprotected tactics such as partial or intermittent strikes, which ratchet up pressure on employers while lessening employees’ exposure to retaliation by employers. This balance is in dire need of adjustment on both ends.


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a. Example cases

Two sections of our case-study memo are especially relevant. First, the part discussing Our Wal-Mart illustrates how employer property rights interfere with collective action by workers and supporters.26 Second, the section discussing #RedForEd illustrates the power of a strike a) that shuts down an entire sector; b) by workers who (as a practical matter) cannot be replaced. [In addition, we will add a short discussion of the use of borderline-intermittent strikes to good effect by the Teamsters, as well as comparative examples.]

b. Barriers

i. NLRA allows employers to hire replacements, while failing to protect workers whose collective action makes it impractical for employers to hire replacement workers or take other counter-measures (partial strikes/slowdowns, intermittent strikes)

ii. Lechmere v. NLRB & other cases privileging employer property rights over the workers’ & others’ collective action, making protests on an employer’s property risky

iii. Weak NLRA remedies do not deter employers from illegally firing workers who engage in collective action

iv. Public sector labor law prohibitions on striking

v. Legislatures can rule out unemployment benefits for strikers

vi. Some workers may be subject to inhibiting contract terms (non-competes, etc.) that raise the costs/risks of collective action

vii. Risk that a court will interpret 8(a)(2) or LMRA Sec. 302 to prohibit organizing for pre-recognition/neutrality agreements that are critical to organizing outside the NLRB process [coordinate with WG V]

viii. Other legal regimes – RICO, antitrust [WG V]

b. Other questions/ideas to explore at the next stage. In addition to reversing the rules listed in the previous sub-part, we could consider the following:

i. Making contributions to strike funds tax deductible

ii. PTO for civic engagement (days off to exercise citizenship) – voting, helping others register to vote, protesting, lobbying, etc.?

iii. Enhancing protection for small-bore collective action in the workplace – for example, expanding Republic Aviation rights to allow workers to take brief breaks during working time.27

5. Labor law was created for “real life,” but some work takes place in cyberspace

26 For more on the relationship between collective action under the NLRA and employer property rights, see James Gray Pope, How American Workers Lost the Right to Strike, and Other Tales, 103 Mich. L. Rev. 518 (2004); Richard Michael Fischl, Labor Law, the Left, and the Lure of the Market, 94 Marquette L. Rev. 947 (2011). 27 This idea comes from Michael M. Oswalt, Improvisational Unionism, 104 Cal. L. Rev. 597 (2016); Michael M. Oswalt, The Right to Improvise in Low-Wage Work, 38 Cardozo L. Rev. 959 (2017).


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This is the part of our memo that requires the most development, including research on background legal principles and technological possibilities. But the basic idea is that as business is increasingly conducted in cyberspace, workers’ collective action cannot be limited to “real life.” Some examples: Where a brick-and-mortar store has a web presence, a virtual picket line might augment a real-life picket line so that visitors to the website get the same experience as visitors to a physical location. Alternatively, where a vendor has only an online presence, a virtual picket line might be the only way for consumers to learn of a consumer boycott. And where workers receive assignments via a platform (as in the case of Uber or Mechanical Turk), the ability for workers to lock out the platform on a device (and convey that they have done so) could be a useful way for workers who are not in the same physical location to build trust and deter scabbing.

i. Consider appropriate analogies?

1. If platforms are like public goods, then maybe some collective action on platforms is like civil disobedience

2. Withholding work (including all forms of value produced by users) on the platform – like striking

3. Blocking access to the platform – like picketing

4. Dirtying data harvested by the platform – like sabotage, or maybe like a slowdown

b. Example cases

i. Coworker.org

ii. SleepingGiants

c. Barriers

i. Terms of service/user agreements that prohibit/penalize “subversive” uses of technology

ii. Possibility that platforms like Facebook or Twitter will make organizing more difficult or risky (e.g., by banning topics; by failing to maintain users’ privacy)

iii. Pervasive questions about who is an employer and an employee [mainly for other working groups]

6. Union contracts often waive workers’ rights to engage in collective action

During our December meeting, there was some discussion about whether unions ought to be able to waive workers’ rights to engage in collective action. This is an issue about which commentators and working group members have a range of opinions. On one hand, the ability to promise “labor peace” is a considerable bargaining chip in the fight to achieve CBAs that improve workers’ lives. On the other, situations like the one that gave rise to Emporium Capwell v. Western Addition Community Organization28 give some observers pause: there is a risk that unions might waive workers’ rights to engage in self help, but then fail to go to the mat to enforce the contract and protect workers’ interests.

Relatedly, some proposals to end or change exclusive representation could limit unions’ authority to waive the rights of all workers within a bargaining unit. For example, James Gray Pope et al. floated the

28 420 U.S. 50 (1975).


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idea, based on the French or Italian systems of labor relations, that “employers bargain over wages at the national level with the most representative union in the industry, but other unions compete with that union and can displace it if workers so choose.”29 Under these proposals, different unions would compete for members and the right to bargain on behalf of a sector; workers would potentially have to choose some labor organization to join, but bargaining would be partially de-coupled from union membership. (This idea mostly belongs to another working group, but intersects with WG III.)

a. Example cases

i. Comparative cases – e.g., under French law, the right to strike belongs to individual workers.

b. Barriers

i. Current waiver law & weakness of “clear and unmistakable” standard as applied by courts. E.g., implicit no strike clause as corollary to grievance arbitration.

7. Case Studies

Labor Campaigns Making Demands Against the State

THE 2006 IMMIGRANT MOBILIZATION AGAINST THE SENSENBRENNER BILL

On December 16, 2005, a draconian immigration bill proposed by Judiciary Chairman James Sensenbrenner (R-WI) and Homeland Security Chairman Peter King (R-NY) passed the House of Representatives by a vote of 239 to 182.30 The bill was unique in its severe enhancement of immigration enforcement, the degree of its funding for a border wall, and its lack of a guest-worker program.31 Especially concerning were its criminalization of the mere presence of undocumented people in the United States and its expansion of the definition of aggravated felonies, both calibrated to enhance criminalization and deportability.32 Foreshadowing the sanctuary city legal battles of 2017, the bill also attempted to punish states that impeded enforcement of immigration law by denying them the “receipt of funds otherwise granted to states to reimburse expenses related [to] illegal immigrants.”33 Of particular interest to lawyers was the inclusion of penalties for those aiding undocumented people. While these penalties were almost certain to ensnare social workers and religious practitioners, some in the legal community were also concerned that it would criminalize their advocacy for immigrants.34

29 James Gray Pope, Ed Bruno, & Peter Kellman, The Right to Strike, Boston Review (May 22, 2017) http://bostonreview.net/forum/james-gray-pope-ed-bruno-peter-kellman-right-strike; see also Rogers, Libertarian Corporatism. 30 Analysis of Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005 | H.R. 4437, National Conference of State Legislatures, Accessed on Nov. 25, 2018. Accessed at http://www.ncsl.org/research/immigration/summary-of-the-sensenbrenner-immigration-bill.aspx. 31 Id. 32 Id. 33 Id. 34 Elisabeth J. Sweeney Yu, Addressing the Economic Impact of Undocumented Immigration on the American Worker: Private Rico Litigation and Public Policy, 20 Notre Dame J.L. Ethics & Pub. Pol'y 909, 933 (2006) (“Under

http://bostonreview.net/forum/james-gray-pope-ed-bruno-peter-kellman-right-strike

http://www.ncsl.org/research/immigration/summary-of-the-sensenbrenner-immigration-bill.aspx


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The extreme bill provoked an unprecedented response. Opposition grew in the months following the Bill’s passage in the House of Representatives. Those organizing against the Bill included a wide array of organizations in the immigrant community, as well as other progressive groups. The earliest protest, in Chicago, involved at least 100,000 people.35 The largest occurred in Los Angeles, with 500,000 participants, making it the largest in the city’s history.36 Dan La Botz wrote in Labor Notes that “[t]he key institutions behind the marches [were] the Catholic Church, labor unions, some national Latino organizations, Spanish-language TV and radio announcers, and, most importantly, informal networks of Latino activists.”37

Prior to these protests, there had been few effective large-scale organizing efforts by the undocumented community. The only pre-cursor to the 2006 protests was the Immigrant Workers Freedom Rides to Washington, D.C. in 2003, which paled in comparison to the massive numbers of people and energy involved in the 2006 protests. Incredibly, even in cities with few immigrant organizations and little history of immigrant political activism, like Las Vegas, the mobilizations were massive.38 Some viewed these early protests as ‘virtual strikes’ since the number of participants, as well as their concentration within certain industries, resulted in significant absences from certain workplaces on the days of the actions.39

This first round of protests across the country took place in early Spring 2006. They were followed by a May 1, 2006 work boycott, labeled “A Day Without an Immigrant.” The event’s organizers urged “undocumented workers, from nannies to janitors to cooks, to march in the streets instead of showing up at their jobs.”40 This action also had massive turnout.

In both the early protests and the May 1st work boycott, the role of Latino media was indisputable. The Latino media played a central role in educating the public about the bill, galvanizing opposition and turning people out.41 Social media also played a distinctly important role, especially amongst the tens of the bill's provisions to criminalize individuals and organizations assisting undocumented persons, social workers, counselors, and lawyers supporting or representing undocumented persons, for example, under the Violence Against Women Act of 1994 (VAWA), would be prosecutable as criminals.”); see also Ali Noorani, Race, Class, and the Emergence of an Immigrant Rights Movement, Fletcher F. World Aff., Winter 2007, at 185, 192 (noting that H.R. 4437 expanded the definition of alien smuggling in a way that would severely penalize a person who assisted an undocumented immigrant and that “punishment for such an offense [would range] from a fine to 20 years in prison.”). 35 Saul Gonzalez, Hundreds of thousands marched for immigrant rights a decade ago. What's happened since?, PRI, Mar. 30, 2016. Accessed at https://www.pri.org/stories/2016-03-30/hundreds-thousands-marched-immigrant-rights-decade-ago-whats-happened. 36 Id. 37 Dan La Botz, Millions March for Immigrant Rights; Virtual Strike in Some Cities, Labor Notes, May 1, 2006. Accessed at http://labornotes.org/2006/05/millions-march-immigrant-rights-virtual-strike-some-cities. 38 Sylvia R. Lazos Vargas, The Immigrant Rights Marches (Las Marchas): Did the "Gigante" (Giant) Wake Up or Does It Still Sleep Tonight?, 7 Nev. L.J. 780, 789 (2007). 39 Dan La Botz, Millions March for Immigrant Rights; Virtual Strike in Some Cities, Labor Notes, May 1, 2006. Accessed at http://labornotes.org/2006/05/millions-march-immigrant-rights-virtual-strike-some-cities. 40 Saul Gonzalez, Hundreds of thousands marched for immigrant rights a decade ago. What's happened since?, PRI, Mar. 30, 2016. Accessed at https://www.pri.org/stories/2016-03-30/hundreds-thousands-marched-immigrant-rights-decade-ago-whats-happened. 41 Sylvia R. Lazos Vargas, The Immigrant Rights Marches (Las Marchas): Did the "Gigante" (Giant) Wake Up or Does It Still Sleep Tonight?, 7 Nev. L.J. 780, 789 (2007).

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thousands of students involved in the mobilization.42 Relatively new media tools, like SMS and MySpace, were seen as enormously useful to young people trying to enhance turnout at the rallies.43 Students especially used these technologies to plan school walk-outs.44 The use of these platforms in organizing foregrounded both the importance social media would come to play in later organizing efforts and also the inherent risks of utilizing tools that are easily surveilled and privately run.45

The Role of Traditional Labor Organizations in the Sensenbrenner Protests

Just a year prior to the mass mobilization, the AFL-CIO published a resolution that committed firmly to progressive immigration reform.46 This was seen by many as part of a broader reversal in how traditional unions treated undocumented workers. For much of American history, unions had often ignored undocumented workers or agitated against them, as was the case with union support of the 1986 conservative Immigration Reform and Control Act.47 Thus, for undocumented workers, the reversal in the position of traditional labor was a welcome development.

The same organizations that worked with the AFL-CIO to generate that 2006 immigration resolution, worked together to involve traditional labor in the 2006 protests against the Sensenbrenner bill. Thanks to their work, there was labor unions’ involvement in the 2006 protests. However, labor unions could have been much more supportive. In Labor Notes, Dan La Botz wrote that “[t]he U.S. labor movement did not provide immigrants the powerful, organized support that it might have.” However, he went on to note that the SEIU, UNITE-HERE, the UFW and other unions did play a significant role in building local demonstrations in some localities.48

To the extent that labor unions were involved in the protests, they were able to create strong coalitions without establishing across-the-board agreement on immigration policy. It turned out, by and large, that absolute consensus on immigration reform was not necessary to allow for effective coalitions between labor and pro-immigration groups. Catherine K. Ruckelshaus wrote that, at least in regards to the central coalition behind the New York protests, member groups did not share all political goals, but “many of these immigrant groups and unions have agreed on basic principles, like fighting anti-immigrant 42 Sasha Costanza-Chock, The Immigrant Rights Movement on the Net: Between “Web 2.0” and Comunicación Popular, 60 American Quarterly 3, 851-864 (Sept. 2008). 43 Id.; see also Heather Benno, Lessons of 2006 immigrant rights struggle that ring true today, Liberation, Jan. 20, 2015. Accessed at https://www.liberationnews.org/5-lessons-of-the-2006-immigrant-rights-struggle-that-still-ring-true-today-2/ (students “communicated about the walkouts through text messages, e-mail, Facebook and MySpace”). 44 Id. 45 Sasha Costanza-Chock, The Immigrant Rights Movement on the Net: Between “Web 2.0” and Comunicación Popular, 60 American Quarterly 3, 851-864 (Sept. 2008). 46 Convention Resolution 26: Immigration, AFL-CIO, July 25, 2005. Accessed at https://perma.cc/4NFD-QVE4. 47 Scott L. Cummings, Law and Social Movements: Reimagining the Progressive Canon, 2018 Wis. L. Rev. 441, 483 (2018). 48 Dan La Botz, Millions March for Immigrant Rights; Virtual Strike in Some Cities, Labor Notes, May 1, 2006. Accessed at http://labornotes.org/2006/05/millions-march-immigrant-rights-virtual-strike-some-cities (“Certainly what has been demonstrated is that should the immigrants fight for unions, contracts, wages, and benefits as they are fighting for the rights to residency and citizenship, they could quickly revitalize the labor movement and transform American society and politics.”).

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measures, family reunification of immigrant families, workplace protections, and civil rights for all, regardless of immigration status.”49 The coalition-building that occurred in advance of the 2006 protests offer helpful lessons for how labor and pro-immigrant groups can continue collaborating, even in the absence of unanimous agreement.

After the May 1, 2006 work boycott, organized labor remained involved in the anti-Sensenbrenner efforts for the rest of the year. However, some on the Left accused labor unions of helping to deescalate activist momentum in the wake of the protests.50 The We Are America Alliance (WAAA), composed of immigrant advocacy organizations and unions like the SEIU and UNITE-HERE, were especially criticized for funneling the movement’s attention towards electoral politics and Democratic Party support, rather than continued grassroots organizing.51

Others were much more sanguine about labor’s involvement, seeing it as an encouraging sign of the growth of ‘social unionism.’52 Whether for ideological or strategic reasons, unions seemed to be lending significant support to these mobilizations in a way that went “beyond serving their members on the job and branch[ed] out into non-workplace issues.”53 It is unclear if this trend towards social unionism simply reflected a turn towards broader social justice concerns amongst union membership and leadership or if it was a strategic calculation considering the decline of union membership and the increasing Latino share of the workforce.

The Impact of the Anti-Sensenbrenner Bill Protests

The Sensenbrenner Bill did not become law, but since it was never viewed as likely to pass the Senate, its unclear what role the protests played in that. However, the House of Representatives did announce that it was willing to downgrade its criminalization of illegal presence in the United States from felony-status to misdemeanor-status.54 This led some to argue that “it is clear that a large reason for the softening of the border control and criminalization portions of the bill is the force shown by the Latino population.”55

49 Catherine K. Ruckelshaus, Labor's Wage War, 35 Fordham Urb. L.J. 373, 402 (2008). 50 Bridget Broderick and Orlando Sepúlveda, When Immigrants Marched Out of the Shadows, International Socialist Organization, Mar. 28, 2016. Accessed at https://socialistworker.org/2016/03/28/immigrants-marching-out-of-the-shadows. 51 Id. 52 Catherine K. Ruckelshaus, Labor's Wage War, 35 Fordham Urb. L.J. 373, 402 (2008). 53 Id. at 402 54 More marches, a growing backlash, The Economist, May 4, 2006. Accessed at https://www.economist.com/united-states/2006/05/04/more-marches-a-growing-backlash; see also Dennis J. Loiacono, Jillian Maloff, Be Our Guest: Synthesizing A Realistic Guest Worker Program As an Element of Comprehensive Immigration Reform, 24 Hofstra Lab. & Emp. L.J. 111, 125 (2006). 55 Id. at 125.

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The Bill’s ultimate failure was certainly hailed by some as a victory for the protests.56 Yet, others posited that the protests had actually caused severe backlash that led to increased deportations and Congress’s inability to pass Comprehensive Immigration Refrom.57 Others contended that backlash to any successful movement should be expected and that the deportations and failure to pass a reform bill reflected a failure amongst organizers to effectively capitalize the momentum built up during the protests.58 On a related note, some criticized the effort as being too reactive and failing to generate an affirmative proposal for immigration reform that the movement could have rallied behind.59

Given that 2006 was a midterm year, there was also a question about the electoral impact of the mobilizations. Some political commentators contend that the protests resulted in both the Democrats and the Republicans working harder to court the Latino population.60 Other writers noted that the electoral impact of the protests was less certain, noting that “2006 elections data [was] inconclusive as to whether the marches influenced the Latina/o electorate.”61

Regardless of their electoral consequences, it is broadly understood that the protests helped develop a “more cohesive political identity” amongst Latinos and a “heightened political consciousness” in Latino communities.62 The broader American consciousness was also affected by the marches. On this point, Ali Noorani wrote,

Through mass mobilizations on April 10 and May 1, 2006, the public realized that immigrants were America. A new, positive image of immigrant families as contributors to communities, immigrants as civic participants engaging in social change, and immigrants as patriots serving the American flag had become the center of the debate. The image of “immigrant threat” briefly receded into the background as the image of the immigrant worker and neighbor was etched into the American consciousness as a result of seeing millions of people peacefully take to the streets.63

Indeed, the protests were considered to be “the first time ‘Mexican migrants [had] taken such a visible role in a national policy discussion’ and represented one of the first efforts by immigrant workers ‘to pursue a right to full membership in US society.’”64 56 Saul Gonzalez, Hundreds of thousands marched for immigrant rights a decade ago. What's happened since?, PRI, Mar. 30, 2016. Accessed at https://www.pri.org/stories/2016-03-30/hundreds-thousands-marched-immigrant-rights-decade-ago-whats-happened. 57 More marches, a growing backlash, The Economist, May 4, 2006. Accessed at https://www.economist.com/united-states/2006/05/04/more-marches-a-growing-backlash; see also Saul Gonzalez, Hundreds of thousands marched for immigrant rights a decade ago. What's happened since?, PRI, Mar. 30, 2016. Accessed at https://www.pri.org/stories/2016-03-30/hundreds-thousands-marched-immigrant-rights-decade-ago-whats-happened. 58 Id. 59 Kathryn Hoban, The Emergence and Obstacles of the Immigrant Rights Movement, Advocates' Forum, 2008. Accessed at https://www.ssa.uchicago.edu/emergence-and-obstacles-immigrant-rights-movement. 60 Dennis J. Loiacono, Jillian Maloff, Be Our Guest: Synthesizing A Realistic Guest Worker Program As an Element of Comprehensive Immigration Reform, 24 Hofstra Lab. & Emp. L.J. 111, 125 (2006). 61 Sylvia R. Lazos Vargas, The Immigrant Rights Marches (Las Marchas): Did the "Gigante" (Giant) Wake Up or Does It Still Sleep Tonight?, 7 Nev. L.J. 780, 781 (2007). 62 Id. 63 Ali Noorani, Race, Class, and the Emergence of an Immigrant Rights Movement, Fletcher F. World Aff., Winter 2007, at 185, 191. 64 Shannon Gleeson, Labor Rights for All? The Role of Undocumented Immigrant Status for Worker Claims Making, 35 Law & Soc. Inquiry 561, 579 (2010) (quoting Bada, Xóchitl, Jonathan Fox, and Andrew Selee, eds.






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In terms of the movements downstream impacts, some writers posited that the mobilization may have helped generate the ideas and social cohesion that eventually sparked worker organizing in Chicago, both at a soap and detergent plant and at Republic Doors & Windows.65 On the other hand, there were those who felt that the movement had far fewer long-term impacts than it could have. Writing in the Harvard Civil Rights and Civil Liberties Journal, Kevin Johnson and Bill Ong Hing wrote that by the fall of 2016, not only had the movement failed to produce progressive immigration reform, but it had itself lost a great deal of steam, producing far lower turnout at subsequent mobilizations.66 It was their contention that a less singularly focused political effort would be necessary to convert what had been a historic mobilization into a broad-based emergent civil rights movement.67 Similarly, some writers posited that the inability to enact broad immigration reform resulted because the movement “had not yet captured other sectors of society” and those writers thus urged a more intersectional approach, connecting immigration more directly to poverty and labor rights.68

The Legal Tactics Employed During the 2006 Protests

The 2006 anti-Sensenbrenner movement focused primarily on street protest mobilization and did not particularly involve a diversity of tactics. Thus, there were not many legal strategies employed during the mobilization. Nonetheless, there were some legal efforts worth noting.

As mentioned earlier, lawyers were particularly interested in the parts of the Sensenbrenner Bill that sought to criminalize efforts to aid undocumented people. In response to the Bill’s threat to criminalize advocacy for the undocumented, there were calls for widespread civil disobedience if the Bill became law. The most notable call for civil disobedience came from Roger Mahoney, Catholic cardinal of the Los Angeles archdiocese, which is America’s largest archdiocese.69 He announced publicly that he would counsel his priests not to abide by the law if it passed.70 As frequent advocates and supporters of immigrants, some in the Church community took this part of the Bill especially seriously.

Legal Questions of Interest that Arose Out of the Protests

2006. Invisible No More: Mexican Migrant Civic Participation in the United States. Washington, DC: Mexico Institute and the Woodrow Wilson International Center for Scholars). 65 Bridget Broderick and Orlando Sepúlveda, When Immigrants Marched Out of the Shadows, International Socialist Organization, Mar. 28, 2016. Accessed at https://socialistworker.org/2016/03/28/immigrants-marching-out-of-the-shadows. 66 Kevin R. Johnson & Bill Ong Hing, The Immigrant Rights Marches of 2006 and the Prospects for A New Civil Rights Movement, 42 Harv. C.R.-C.L. L. Rev. 99, 101 (2007). 67 Id. 68 Heather Benno, Lessons of 2006 immigrant rights struggle that ring true today, Liberation, Jan. 20, 2015. Accessed at https://www.liberationnews.org/5-lessons-of-the-2006-immigrant-rights-struggle-that-still-ring-true-today-2/. 69 More marches, a growing backlash, The Economist, May 4, 2006. Accessed at https://www.economist.com/united-states/2006/05/04/more-marches-a-growing-backlash; see also Sylvia R. Lazos Vargas, The Immigrant Rights Marches (Las Marchas): Did the "Gigante" (Giant) Wake Up or Does It Still Sleep Tonight?, 7 Nev. L.J. 780, 789 (2007). 70 Id.; see also Sylvia R. Lazos Vargas, The Immigrant Rights Marches (Las Marchas): Did the "Gigante" (Giant) Wake Up or Does It Still Sleep Tonight?, 7 Nev. L.J. 780, 789 (2007).







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Both the early protests in March and April, as well as the subsequent May Day boycott “raised complicated labor issues in places of employment around the country.”71 Rachael Simon summarized the primary responses to the protests by immigrant employees and their employers,

Some employees asked for the day off ahead of time, others worked extra hours or switched shifts in order to make up the time, while another group of employees simply did not show up to work. Some employers in industries that depend heavily on immigrant labor, such as the Tyson and Perdue meat processing plants, closed in advance of the planned rallies because of expected labor shortages, while other businesses closed early after employees did not come to work. Although some employers reacted to the boycott by expressing solidarity with their immigrant employees, many others responded with frustration and threats of reprisal.72

Unsurprisingly, some employers chose to retaliate after their employees participated in the marches. In response, workers began filing claims with the NLRB. In April 2006, NLRB Associate General Counsel, Richard Siegel, wrote a memo stating that “[u]nfair labor practice charges have been filed in several Regional Offices involving allegations arising out of employer discipline of employees because of their attendance during work time at public rallies concerning national immigration policy.”73 The employees in these cases, by and large, argued that their absences to attend immigration protests were protected activity under §7 of the NLRA because they fit the definition of “concerted activity” for “mutual aid or protection.”74 The NLRA makes it unlawful for employers to “interfere with, restrain, or coerce employees in the exercise of” these rights.75 In his memo, Siegel recognized that these protests ask whether pro-immigrant street protests fit the definition of “concerted activity” for “mutual aid or protection” under the NLRA. However, Siegel chose not to resolve the question in that memo.

Two years later, the NLRB issued a memo concerning unfair labor practice charges involving political advocacy, where they addressed the question of whether the 2006 protests fit into the NLRA’s definition of “concerted activity” for the purposes of “mutual aid.”76 The Board began by referencing the Supreme Court’s ruling in Eastex, Inc. v. N.L.R.B., 437 U.S. 556 (1978), which endorsed the NLRB’s view that “employees are protected under the ‘mutual aid or protection’ clause of §7 when they seek to ‘improve their lot as employees through channels outside the immediate employee-employer relationship.’”77 The memo then stated plainly that “participation in [the 2006 protests] did in fact fall within the scope of the ‘mutual aid or protection’ clause” since the Sensenbrenner Bill would have material impacts on immigrants’ abilities to get work.78 Nonetheless, the NLRB ultimately decided that the workers’ actions were not protected under the NLRA.79 The Board determined that the demonstrations were not strikes under the NLRA because, since the employer could not address the employees’ underlying grievances about the 71 Rachael M. Simon, Workers on the March: Work Stoppages, Public Rallies, and the National Labor Relations Act, 56 Catholic University Law Review 4, 1273 (Summer 2007). 72 Id. 73 Memorandum from Richard A. Siegel, Associate General Counsel, NLRB to All Regional Directors, Officers-in-Charge, and Resident Officers, NLRB, Apr. 28, 2006. (as referenced in Rachael M. Simon, Workers on the March: Work Stoppages, Public Rallies, and the National Labor Relations Act, 56 Catholic University Law Review 4, 1273 (Summer 2007)). 74 29 U.S.C.A. § 157. 75 29 U.S.C.A. § 158. 76 Ronald Meisburg, MEMORANDUM GC 08-10, Office of the General Counsel NLRB, July 22, 2008. Accessed at http://hr.cch.com/ELD/NLRBGC08-10.pdf. 77 Id. 78 Id. 79 Id.

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national immigration system, the employees could not be seen as having withheld “their services as an economic weapon in the employment relationship.”80

Ten years later, the NLRB Office of General Counsel came to the opposite conclusion when assessing whether workers engaged in other pro-immigrant protests, events which could be traced back to the 2006 anti-Sensenbrenner mobilization, were protected by the NLRA.81 In the Advice Memo, the Office of General Counsel conclusively sided with the workers of EZ Industrial Solutions, LLC, who had been discharged for participating in a February 16, 2016 “Day Without Immigrants” protest.82 In the memo, the Associate General Counsel, Jayme Sophir stated,

We conclude that the employees’ participation in the “Day Without Immigrants” was for their mutual aid or protection and constituted a protected strike. The Employer therefore violated Section 8(a)(1) by threatening to suspend, and thereafter terminating, the eighteen employees for engaging in a protected strike vis-à-vis the “Day Without Immigrants” national protest. In the alternative, the Region should argue that, even if the employees were not engaged in a strike, the Employer violated Section 8(a)(1) by discriminatorily applying its attendance policy to discharge the eighteen employees who participated in the “Day Without Immigrants” protest.83

Taking a fairly expansive approach to evaluating the nexus between political activities and workplace conditions, the memo declared that “participation in the ‘Day Without Immigrants’ falls within the scope of the ‘mutual aid or protection’ clause given that the day of action was in response to, inter alia, the sudden crackdown on undocumented immigrants living and working in the United States and the possible revival of immigration raids in the workplace.”84

In addition to the legal questions about ‘concerted activities’ under the NLRA, the 2006 protests also involved fascinating legal questions related to the criminalization of day laborers. Unbeknownst to many, buried within the Sensenbrenner Bill was a provision added at the behest of Home Deport and meant, specifically, to pre-empt imminent legislation in Los Angeles. Years prior to the protest, Los Angeles and other cities had tried to criminalize day laborers for soliticiting work on street corners. Through a mix of activism and high-level litigation, these day laborer criminalization bills had failed. In fact, activists had managed to turn the tide and Los Angeles City Council was working to pass legislation that would make future home improvement stores invest in day laborer centers.85 None too pleased with this development, Home Depot lobbied for inclusion of a rule preempting legislation of this sort and a Representative from Utah included it in the Sensenbrenner Bill.86

80 Id. 81 Jayme Sophir, EZ Industrial Solutions, LLC, Case 07-CA-193475, Office of the General Counsel NLRB, Aug. 30, 2017. Accessed at https://www.nlrb.gov/case/07-CA-193475. 82 Id. 83 Jayme Sophir, EZ Industrial Solutions, LLC, Case 07-CA-193475, Office of the General Counsel NLRB, Aug. 30, 2017. Accessed at https://www.nlrb.gov/case/07-CA-193475. 84 Id. 85 Scott L. Cummings, Litigation at Work: Defending Day Labor in Los Angeles, 58 UCLA L. Rev. 1617, 1678 (2011); see also Scott L. Cummings, Law and Social Movements: Reimagining the Progressive Canon, 2018 Wis. L. Rev. 441, 481 (2018) (noting that prior to proposing progressive day laborer legislation, Los Angeles had tried to make it unlawful for day laborer’s to solicit work in public areas, a law that was struck down by the federal district court in 2000 and likely rendered unconstitutional by a subsequent en banc decision by the Ninth Circuit). 86 Scott L. Cummings, Litigation at Work: Defending Day Labor in Los Angeles, 58 UCLA L. Rev. 1617, 1676 (2011).

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Recognizing that they could not defeat this provision alone, day laborer activists with the National Day Laborer Organizing Network (NDLON) decided to reach out to organized labor for help. 87 They reached out to the AFL-CIO specifically and managed to convince them that this effort to support day laborers deserved AFL-CIO support, so the federation helped them lobby.88 While the Sensenbrenner Bill died in the House, a similar amendment was introduced a year later into another immigration related bill.89 AFL-CIO helped NDLON lobby against the pre-emption provision once again. 90 Critically, through their joint organizing efforts, the NDLON and the AFL-CIO decided to create “a historic policy, called the National Partnership Agreement Between the AFL-CIO and NDLON, permitting NDLON members to become affiliates of the AFL-CIO.”91 This partnership developed despite the fact that a 2002 Supreme Court ruling had dealt a serious blow to the cause of joint action between unions and undocumented workers by holding that “federal labor law did not protect [undocumented] workers from retaliation and deportation in response to organizing since immigration law's enforcement goals were deemed to take precedence over the protection of labor rights.”92 Despite this, traditional unions were beginning to find more and more ways to unify with undocumented workers and immigrant advocacy efforts. Partly as a result of these developing coalition efforts, Los Angeles ultimately passed a law giving the city discretion to require home improvement stores to establish day laborer centers in order to get conditional use permits.93

And finally, it was not just workers that faced legal repercussions from the marches, but also students, whose participation in the 2006 marches numbered thousands.94 In Los Angeles alone, it is estimated that 11,000 students participated in the protests.95 Chicago saw the involvement of hundreds of high school students as well.96 Student involvement in the protests raised its own interesting legal questions. In response to high levels of student participation, the school district in Los Angeles County responded by citing approximately 100 students with truancy, physically restraining students from leaving campus, and rounding students up at the protests to bus them back to school.97 Pepper spray and handcuffs were even 87 Id. at 1678. 88 Id. at 1674. 89 Id. at 1677. 90 Id. 91 Id. 92 Scott L. Cummings, Law and Social Movements: Reimagining the Progressive Canon, 2018 Wis. L. Rev. 441, 482 (2018). 93 Scott L. Cummings, Litigation at Work: Defending Day Labor in Los Angeles, 58 UCLA L. Rev. 1617, 1677 (2011). 94 Dan La Botz, Millions March for Immigrant Rights; Virtual Strike in Some Cities, Labor Notes, May 1, 2006. Accessed at http://labornotes.org/2006/05/millions-march-immigrant-rights-virtual-strike-some-cities; see also Heather Benno, Lessons of 2006 immigrant rights struggle that ring true today, Liberation, Jan. 20, 2015. Accessed at https://www.liberationnews.org/5-lessons-of-the-2006-immigrant-rights-struggle-that-still-ring-true-today-2/ (noting that students employed walk-outs, hunger strikes, and traditional community organizing in their efforts to contribute to the mobilization). 95 Jason Scronic, Take Your Seats: A Student's Ability to Protest Immigration Reform at Odds with State Truancy and Compulsory Education Laws, 2 Fla. A & M U.L. Rev. 185, 187 (2007). 96 Heather Benno, Lessons of 2006 immigrant rights struggle that ring true today, Liberation, Jan. 20, 2015. Accessed at https://www.liberationnews.org/5-lessons-of-the-2006-immigrant-rights-struggle-that-still-ring-true-today-2/. 97 Jason Scronic, Take Your Seats: A Student's Ability to Protest Immigration Reform at Odds with State Truancy and Compulsory Education Laws, 2 Fla. A & M U.L. Rev. 185, 187 (2007); see also Heather Benno, Lessons of 2006 immigrant rights struggle that ring true today, Liberation, Jan. 20, 2015. Accessed at https://www.liberationnews.org/5-lessons-of-the-2006-immigrant-rights-struggle-that-still-ring-true-today-2/.






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employed to prevent student participation, as well as anti-protest and anti-immigration-reform propaganda.98 In response to these actions by the district, one student said "[e]ven though administrators tried to have a lockdown, students were climbing the fences to protest and have their voices heard[.]"99 These efforts by the LAUSD were reflective of actions by other districts elsewhere, as well.100 The efforts to punish students for their involvement in pro-immigrant protests sparked at least some interest in addressing how compulsory schooling laws and truancy rules may inhibit student participation in broad-based social movements.101

The Fight for $15

The Fight for $15 began in 2012, with several one-day strikes in New York City demanding that fast-food workers be paid $15 an hour and that their employers not oppose unionization efforts.102 While these initial actions included merely hundreds of workers, the movement’s scope quickly expanded with actions taking place months later in Seattle, Milwaukee, St. Louis, Detroit, and Chicago.103 Towards the end of 2013, there were coordinated strikes in more than fifty cities. 104 These mass mobilizations were more or less replicated in late 2014 and again in late 2015. 105 Two of the movement’s largest actions both occurred in 2015, when in April, workers in over 200 cities walked out of their jobs and in May, workers presented a petition to McDonald’s at its shareholders meeting that included over 1.4 million signatures urging the company to set a minimum wage of $15 per hour.106 While the movement began with an emphasis on fast-food workers, it eventually “expanded to a broader spectrum of occupations including airport workers, nursing home workers, and adjunct faculty,” among others.107

From the beginning, the SEIU was the primary financial backer of the Fight for $15.108 In 2011, to catalyze what became the Fight for $15, the SEIU invested $60 million in an effort to deploy 1,500

98 Id. 99 Bridget Broderick and Orlando Sepúlveda, When Immigrants Marched Out of the Shadows, International Socialist Organization, Mar. 28, 2016. Accessed at https://socialistworker.org/2016/03/28/immigrants-marching-out-of-the-shadows. 100 Jason Scronic, Take Your Seats: A Student's Ability to Protest Immigration Reform at Odds with State Truancy and Compulsory Education Laws, 2 Fla. A & M U.L. Rev. 185, 187 (2007). 101 Id. 102 Fight for $15 officially traces its history back to ”2012 when two hundred fast-food workers walked off the job to demand $15/hr and union rights in New York City.” About Us, Fight for $15, accessed on January 17, 2019. Accessed at https://fightfor15.org/about-us/; see also Sévrine Knuchel, Examining Workers' Rights in International Human Rights Law: The Fast-Food Workers' Movement in the United States, 33 Hofstra Lab. & Emp. L.J. 1, 3 (2015). Others place the movement’s start date in 2011, with the SEIU-backed worker organizing at Sea-Tac airport, which led to "the first successful US$15 ballot initiative in the country.” Jonathan Rosenblum, Fight for $15: Good Wins, but Where did the Focus on Organizing Go?, 42 Labor Studies Journal 4, 387-393 (2017). 103 Id. 104 Id. 105 Id. 106 Id. 107 Id.; see also Michelle Chen, We Are Winning the Fight for $15, The Nation, Apr. 6, 2016. Accessed at https://www.thenation.com/article/we-are-winning-the-fight-for-15/. 108 Id.



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organizers around the country and spur low-wage worker organizing.109 Since the movement’s funding mostly came from the SEIU, Trump’s election posed a serious financial challenge. Immediately after Trump’s election, the SEIU announced plans to slash its budgets by 30%, meaning funding for Fight for $15 would almost certainly be diminished.110 Especially since Fight for $15 did not lead to any apparent increase union membership numbers, the SEIU’s initial level of investment could not continue unabated.111

The Impact of the Fight for $15

The campaign had major successes at the city and state-level. According to research by the National Employment Law Project (NELP), by 2016, “fifty-one cities, counties, and states saw minimum wage increases . . . with over a dozen of those jurisdictions approving $15 wage measures, including the first statewide $15 minimum wage laws in New York and California.”112 After just four years of organizing, the movement had helped to secure nearly $62 billion in additional annual income for workers.113 While this is an enormous sum, it is important to note that the vast majority of this increased annual income would be benefiting people in just a list of coastal states and localities.114 On the other hand, the NELP numbers do not capture additional annual income gained by workers in jurisdictions that may have been influenced by the Fight for $15 in their decisions to raise their minimum wages in recent years, but did not raise their minimum wages to $15 per hour.115

One question accompanying these major victories was the question of enforcement. For those who have long paid attention to workplace issues, “[q]uestions remain about how wage standards will be enforced when regulatory oversight is weak, and exemptions tucked into legislation could leave many workers out.”116 To fully realize many of the legislative and regulative victories they have won, activists will have to be as persistent in fighting for enforcement and inclusion of as many workers as possible under these new rules and laws.

109 Jonathan Rosenblum, Fight for $15: Good Wins, but Where did the Focus on Organizing Go?, 42 Labor Studies Journal 4, 387-393 (2017). 110 Josh Eidelson, Fear of Trump Triggers Deep Spending Cuts by Nation's Second-Largest Union, Bloomberg Business, Dec. 27, 2016. Accessed at https://www.bloomberg.com/news/articles/2016-12-27/fear-of-trump-triggers-deep-spending-cuts-by-nation-s-second-largest-union. 111 Dave Jamieson, Labor Critic Claims Union Behind The ‘Fight For $15’ Cut Funding For Fast-Food Campaigns, HuffPost, Mar. 31, 2018. Accessed at https://www.huffingtonpost.com/entry/union-behind-the-fight-for-15-cuts-funding-for-fast-food-campaign_us_5abfe925e4b055e50ace1a2d. 112 Michelle Chen, Vote for $15, Dissent, Summer 2016. Accessed at https://www.dissentmagazine.org/article/vote-for-15-minimum-wage-labor-movement. 113 Fight for $15: Four Years, $62 Billion, National Employment Law Project, December 2016. Accessed at https://www.nelp.org/wp-content/uploads/Fight-for-15-Four-Years-62-Billion-in-Raises.pdf (“This figure represents the total additional annual income workers will receive once these approved increases fully phase in.”). 114 Id. (”Of the $61.5 billion in additional income, two-thirds is the result of landmark $15 minimum wage laws that the Fight for $15 won in California, New York, Los Angeles, San Francisco, Seattle, SeaTac and Washington, D.C.”). 115 Heather Long, Arkansas and Missouri Just Approved Big Minimum Wage Increases, a Liberal Victory in Red States, The Washington Post, Nov. 6, 2018. Accessed at https://www.washingtonpost.com/business/2018/11/07/arkansas-just-approved-big-minimum-wage-increase-liberal-victory-red-state/. 116 Michelle Chen, We Are Winning the Fight for $15, The Nation, Apr. 6, 2016. Accessed at https://www.thenation.com/article/we-are-winning-the-fight-for-15/.

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Interestingly, it was not just governments involved in minimum wage raising. Many private companies also decided to adopt $15 minimum wages. This included Facebook, Nationwide Insurance, and U.P.M.C., Pittsburg’s largest hospital chain.117

And it was not just increased wages that the movement ended up spawning. In Seattle, for example, after passing a $15 minimum wage, the City Council quickly began developing legislation to address employer scheduling practices that disadvantage workers.118 Similarly, San Francisco passed a Retail Worker’s Bill of Rights that benefitted employees at formula retail shops by making their schedules more predictable and giving them advanced notice or higher pay in regards to schedule changes.119 In fact, the Wall Street Journal reported in 2016 that “attorneys general in eight states and Washington, D.C., [had already] started scrutinizing the scheduling practices of more than a dozen large retailers.”120 Its highly likely that the intense energy surrounding the Fight for $15 was what helped catapult this and other workplace issues into the top priorities of politicians and lawyers.

The movement took other avenues as well, and others may be yet to come. For example, while Obama was still in office, organizers were able to successfully lobby for an executive order from the Obama administration making it “harder for firms to secure federal contracts if they have a documented history of wage theft.”121 Unfortunately, within months of Trump’s inauguration, he had already rescinded it.122 Nonetheless, there are still many other types of workplace improvement that the movement may still generate. One of the SEIU leaders who helped initiate the movement mentioned “paid sick days, for example, or more sector-specific wage and hour protections for freelance and retail workers” as examples of new directions the movement could still take.123

It would be a mistake to merely consider the impacts that the Fight for $15 has had on the workplace. Uniquely, even though it is fundamentally a worker struggle, it has also focused on forms of social justice outside the workplace. Kimberly M. Sánchez Ocasio and Leo Gertner, for example, argue that the Fight for $15 illustrated a trend of labor unions increasingly “responding to low-wage worker organizing by acknowledging the intersectional identities of these workers.”124 This may help to explain both the unexpected effectiveness of these campaigns and also their sometimes unexpectedly broad social justice 117 Steven Greenhouse, How the $15 Minimum Wage Went From Laughable to Viable, The New York Times, April 1, 2016. Accessed at https://www.nytimes.com/2016/04/03/sunday-review/how-the-15-minimum-wage-went-from-laughable-to-viable.html. 118 Peter Johnson, What Follows the Fight for $15?, The Atlantic, April 15, 2016. Accessed at https://www.theatlantic.com/business/archive/2016/04/what-follows-the-fight-for-15/478347/. 119 Id. 120 Id. 121 Dave Jamieson, Donald Trump Is The Fast-Food President, HuffPost, Aug. 5, 2017. Accessed at https://www.huffingtonpost.com/entry/donald-trump-the-fast-food-president_us_598344d9e4b0fa1575fc6830. 122 Dave Jamieson, Trump Repeals Regulation Protecting Workers From Wage Theft, HuffPost, Mar 27, 2018. Accessed at https://www.huffingtonpost.com/entry/trump-repeals-regulation-wage-theft_us_58d9408ee4b03692bea814c9. 123 Michelle Chen, Vote for $15, Dissent, Summer 2016. Accessed at https://www.dissentmagazine.org/article/vote-for-15-minimum-wage-labor-movement. 124 Kimberly M. Sánchez Ocasio, Leo Gertner, Fighting for the Common Good: How Low-Wage Workers' Identities Are Shaping Labor Law, 126 Yale L.J. Forum 503, 505 (2017).

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focus. For example, at the movement’s April 15, 2015 walk-out , organizers “worked to bridge the roiling protests against discriminatory and violent policing with the push to raise wages by partnering with racial-justice groups and planning a moment of silence on the day itself to honor unarmed African-Americans recently killed by law enforcement.”125 Fully understanding the movement’s success and potential requires recognizing the coalition-building that has occurred with “transgender rights activists . . . environmental groups . . . civil rights initiatives … college students” and many other sectors of American society.126

The movement has also been unique in addressing the forms of workplace oppression that primarily target women workers. Most critically, there has been an effort by Fight for $15 to address the rampant sexual harassment that afflicts low-wage workers. In June of this year, ten women who work at McDonald’s franchises in various cities filed claims with the EEOC alleging sexual harassment. 127 They had all spoken up about this harassment at their workplaces, but McDonald’s and its franchisees had “ignored or retaliated against them for” raising these concerns.128 The increased emphasis on workplace sexual harassment aligns with Fight for $15’s longstanding attempt to utilize an “intersectional approach to addressing their members’ multiple, layered identities.”129 Fight for $15 is collaborating, on this effort, with The Time’s Up Legal Defense Fund, as well as other organizations focused on gender equity and sexual violence, and is thus building relationships and collaborations with organizations outside of traditional labor.

Interestingly, the pressure campaigns against McDonald’s are not merely domestic. While financing the Fight for $15 and its efforts to challenge McDonald’s labor practices domestically, the SEIU also helped instigate investigations of their practices internationally. The Union helped catalyze investigations of wage theft, child labor and unsafe working conditions at McDonald’s franchises in Brazil by Brazilian prosecutors.130 The Union also helped catalyze the European Union’s investigation into allegations of at least $1 billion in tax evasion by McDonald’s as well.131 It is yet to be seen how SEIU's international efforts against McDonald’s do or do not affect the leverage held by the Fight for $15 as against McDonald’s in the US. Fight for $15 itself, has also had some international political presence, with the movement spawning “low-wage worker demonstrations in cities spanning more than 30 countries, Hong Kong to Helsinki.”132

125 Michael M. Oswalt, The Right to Improvise in Low-Wage Work, 38 Cardozo L. Rev. 959, 973 (2017) 126 Id. at 974. 127 32 No. 23 Westlaw Journal Employment 07 (noting that the sexual harassment filings are also part of a long-term effort to get McDonald’s recognized as a joint employer with its franchisees) 128 Id. 129 Sánchez Ocasio, K.M. & Gertner, L., Fighting for the Common Good: How Low-Wage Workers’ Identities Are Shaping Labor Law, The Yale Law Journal, Apr. 24, 2017. Accessed on https://www.yalelawjournal.org/forum/fighting-for-the-common-good#_ftnref12. 130 Steven Greenhouse, Fight for $15: the strategist going to war to make McDonald's pay, The Guardian, Aug. 30, 2015. Accessed at https://www.theguardian.com/us-news/2015/aug/30/fight-for-15-strategist-mcdonalds-unions; see also Steven Greenhouse, How to Get Low-Wage Workers Into the Middle Class, The Atlantic, Aug. 19, 2015. Accessed at https://www.theatlantic.com/business/archive/2015/08/fifteen-dollars-minimum-wage/401540/ (”The SEIU also helped persuade Brazil’s two largest union federations to sue McDonald’s biggest franchisee in Latin America, accusing it of wage theft and unsanitary conditions, charges that could merit fines of up to 30 percent of annual sales.”). 131 Id. (“[I]t played an instrumental role in getting the European Union to investigate McDonald’s avoiding over $1 billion in taxes by steering royalty payments to a tiny Luxembourg-based subsidiary.”). 132 Michelle Chen, We Are Winning the Fight for $15, The Nation, Apr. 6, 2016. Accessed at https://www.thenation.com/article/we-are-winning-the-fight-for-15/.



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When it comes to wages and, to some extent, working conditions, Fight for $15 has had countless remarkable successes. Notably however, the second pillar of Fight for $15’s initial platform- unionization- has not seen such success. Some posit that this results from strategic or tactical failures of the movement.133 Others note that the inability to increase membership at least partly results from the fact that, “workers’ unionization prospects are hindered by the fast-food industry’s legal structure, which keeps workplaces atomized into individual franchise units that can’t be readily unionized on an industry-wide scale.”134 Though the movement’s strategy has not led to gains in formal union membership, some Fight for $15 organizers contend that “workers already feel like they’re a part of a union.”135 However, since the movement’s initial goals included creation of a union, not just the feeling of being in one, there is still ample debate about how the movement could still lead to increased union density.

The Effect of Fight for $15 on Theories of Labor Law and Organizing

To answer these questions, a spate of activists and scholars have written about what the Fight for $15 signals about the future of labor law and labor organizing. Amidst this literature, there is widespread agreement that current approaches to labor law need adapting, but differing prescriptions for how to proceed.

One scholar in those debates has been Michael M. Oswalt, whose law review article in 2016 provoked a number of energetic responses. In his article, he created a framework called improvisational unionism in order to explain the innovations seen in the Fight for $15.136 He explained that Fight for $15 activists have “embraced innovations like union organizing without the union organizers, collective action for the sake of collective action, and strikes by courageous but tiny contingents, accepting all the while that what everything might add up to is ultimately uncertain and that mistakes, perhaps big mistakes, will be made.”137 Rather than treating this dismissively, as he suggests many scholars have done, he sees it as admirable and conveying principles of great value for the future of workplace struggle.138 While Oswalt fails to land on a clear recommendation that follows from his theory of improvisational unionism, he seems to posit that while some more traditional forms of organizing must emerge from the current state of

133 Jonathan Rosenblum, Fight for $15: Good Wins, but Where did the Focus on Organizing Go?, 42 Labor Studies Journal 4, 387-393 (2017) (”What began as a bold vision to organize private-sector workers and rebuild worker power has tapered for the most part into a tremendously exciting—yet limiting—campaign around wages[.]”); see also Nelson Lichtenstein, Two Roads Forward for Labor: The AFL-CIO's New Agenda, DISSENT, Winter 2014. Accessed at http://www.dissentmagazine.org/article/two-roads-forward-for-labor-the-afl-cios-new-agenda [http://perma.cc/YCY5-JRMD] (“especially in the Fight for Fifteen campaign, the unions have no strategy for building a real organization sustained by actual dues-paying members”). 134 Michelle Chen, We Are Winning the Fight for $15, The Nation, Apr. 6, 2016. Accessed at https://www.thenation.com/article/we-are-winning-the-fight-for-15/. 135 Michelle Chen, We Are Winning the Fight for $15, The Nation, Apr. 6, 2016. Accessed at https://www.thenation.com/article/we-are-winning-the-fight-for-15/. 136 Michael M. Oswalt, Improvisational Unionism, 104 Cal. L. Rev. 597 (2016) 137 Id. at 604. 138 Id.



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organizing, scholars should not push activists to rapidly re-discover the old, stale, stodgy modes of union organizing.139

Following his first article, Oswalt published an article a year later outlining far firmer recommendations.140 In it, he explained that the foundation of improvisational unionism is trust built through communication.141 Thus, those interested in furthering the development of effective and generative organizing campaigns, like those cultivated by the Fight for $15, must seek changes to the NLRB’s interpretation of the law that allow workers to more easily communicate and build trust.142 Specifically, he recommends that “the Board should establish a right for workers to talk to each other during working time” and “classify short concerted breaks that impact production only modestly as protected conduct.”143 With his emphasis on the relational strengths of low-wage workers’ movements, Oswalt focuses on creating the conditions for more decentralized and unpredictable activist innovation, rather than the promotion of new and complex institutions for channeling the growing energy of this movement.

Other scholars, most notably Kate Andrias, have pushed back on this improvisational portrayal of the Fight for $15. Rather than viewing the Fight for $15 as messy or scattershot, she sees it as relatively cohesive and believes that the campaign can actually help delineate a wholly new, “coherent and fundamentally changed labor law.”144 She explains that limitations of the NLRA explain the decline in union membership, especially its intrinsic emphasis on workplace-based organizing and its absence of a commitment to extend power to the vast majority of workers.145 She goes on to describe the Fight for $15 and other organizing efforts by low-wage workers and outlines a new labor law, illuminated by these movements, which could redress the limitations of the NLRA. This new approach, she suggests, should center employment decisions at the sectorial, industrial, and regional levels, expand the role of the state in labor negotiations, break the divide between labor and employment law, and retain some role for worksite representation through a variety of forms.146 In sketching out these pillars of a new labor law, Andrias simultaneously credits the low-wage workers’ movement with innovating this new approach, while also nudging the movement towards taking action to make it real.

In contrast to both Andrias’ and Oswalt’s theories, others recommend a much more stay-the-course approach, suggesting that power building for workers in America still primarily relies on the growth of union members in traditionally union-dense industries. Matthew Ginsburg writes that those articulating new and novel approaches to organizing workers are liable to lose sight of the ever-important task of growing the unions.147 Specifically, Ginsburg critiques Andrias as missing the critical first step of any effort to arrive at a new and better labor law.148 He writes that, “[a]ny path to sectoral bargaining or other positive labor 139 Id. at 669 140 Michael M. Oswalt, The Right to Improvise in Low-Wage Work, 38 Cardozo L. Rev. 959 (2017) 141 Id. at 989. 142 Id. at 1017. 143 Id. at 967. 144 Kate Andrias, The New Labor Law, 126 Yale L.J. 2, 13 (2016) 145 Id. at 6. 146 Id. 147 Matthew Ginsburg, Nothing New Under the Sun: "The New Labor Law" Must Still Grapple with the Traditional Challenges of Firm-Based Organizing and Building Self-Sustainable Worker Organizations, 126 Yale L.J. Forum 488 (2017). 148 Id. at 489.


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law innovation must pass through the way station of significant union growth at the firm level.”149 Those who agree that increasing union membership in traditional unions is still incredibly important, note that Fight for $15 has largely failed in this regard.150 Indeed, the SEIU originally set out to change the public discourse around low wage work and increase the union density in the American workforce.151 While the movement wildly succeeded at changing the discourse around low wage jobs and substantially affected minimum wages in the United States, it failed in its other goal of reversing the downward trend in union membership.152 From 2011 to 2016, the rate of private sector union density actually fell from 7% down to 6.4%.153

Fight for $15’s ‘Joint Employer’ Struggle

In addition to its many minimum wage campaigns, the Fight for $15 has also waged a significant effort to change the law’s approach to ‘joint employer’ liability, which determines whether and when parent companies and franchisors can be held liable for harms done to employees at their subsidiaries and franchisees. The question was of primary significance in a suit brought by the NLRB General Counsel on behalf of McDonald’s workers “who claimed they’d been illegally retaliated against for their activism in the Fight for $15 protests.”154

In a major success for McDonald’s workers, during that case, the NLRB General Counsel announced that McDonald’s will be held as a joint employer in regards to its employees’ complaints if a settlement is not reached between the company and its workers. The General Counsel announced that,

The National Labor Relations Board Office of the General Counsel has had 181 cases involving McDonald’s filed since November 2012. Of those cases, 68 were found to have no merit. 64 cases are currently pending investigation and 43 cases have been found to have merit. In the 43 cases where complaint has been authorized, McDonald’s franchisees and/or McDonald’s, USA, LLC will be named as a respondent if parties are unable to reach settlement.155

At that point in the Fight for $15, the legal battles the movement was fighting were beginning to have some serious payoff.

The next year, in August 2015, the movement was thrilled by the NLRB’s decision, in Browning-Ferris Indus. of California, Inc., which included a new legal standard for ‘joint employer’ liability. The case did not directly concern franchisors, which were the movement’s main adversaries, yet the decision felt like a big step 149 Id. 150 Jonathan Rosenblum, Fight for $15: Good Wins, but Where did the Focus on Organizing Go?, 42 Labor Studies Journal 4, 387-393 (2017). 151 Id. 152 Id. 153 Id. 154 Dave Jamieson, Donald Trump Is The Fast-Food President, HuffPost, Aug. 5, 2017. Accessed at https://www.huffingtonpost.com/entry/donald-trump-the-fast-food-president_us_598344d9e4b0fa1575fc6830. 155 Office of Public Affairs, NLRB Office of the General Counsel Authorizes Complaints Against McDonald's Franchisees and Determines McDonald's, USA, LLC is a Joint Employer, National Labor Relations Board, July 29, 2014. Accessed at https://www.nlrb.gov/news-outreach/news-story/nlrb-office-general-counsel-authorizes-complaints-against-mcdonalds.

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towards a new franchisor standard which would eventually make “it easier to declare franchising companies like McDonald’s joint employers with their franchisees.”156 In a 3-2 decision, the NLRB overturned precedent which had set a high bar for the level of control required to make a company jointly liable and, instead, replaced it with a broader definition that allowed more ‘outsourced’ workers to make claims against the parent company that their employers were contracted by.157 Though, in the decision the Board announced that it was still yet to alter the standard as relates to franchisors, the decision still appeared very fortuitous for the movement.158 It seemed to reflect a Board far more willing to hold parent companies liable for actions of their subsidiaries.

Though the NLRB seemed to be moving towards classification of McDonald’s as a joint employer, federal courts were still unwilling to make that move. In closely watched cases, two federal courts in the Northern District of California both failed to recognize McDonald’s as a joint employer. 159 In both of those cases, the judges said, “McDonald's does not exercise enough control over franchise workers to be considered a joint employer.”160

Despite the losses at the federal courts, the new direction at the NLRB was looking very promising. However, all of that changed with Trump’s election. Once Trump took office, he quickly began changing the composition of the NLRB and dashing the movement’s hopes for more liberal ‘joint employer’ doctrine. In the first year of his presidency, Trump’s NLRB appointments overruled Browning-Ferris, the decision that had announced the more favorable ‘joint employer’ standard.161 Their reversal of Browning-Ferris was later vacated on ethics grounds,162 but the Board has since released a “new rule regarding joint employment under the National Labor Relations Act (NLRA), which stands to make it more difficult for the board to impose a joint-employer finding on companies.”163 Presently, the comment period is still underway.164 This situation was looking grim for those looking to expand the liability of franchisors and parent companies – though the DC Circuit’s recent decision in Browning-Ferris held that the Board’s BFI test was largely correct as a matter of common law, and that the NLRB was not entitled to deference in its interpretation of who is an “employer” under the NLRA.165

156 Steven Greenhouse, Fight for $15: the strategist going to war to make McDonald's pay, The Guardian, Aug. 30, 2015. Accessed at https://www.theguardian.com/us-news/2015/aug/30/fight-for-15-strategist-mcdonalds-unions. 157 Id. 158 Daniel B. Pasternak & Naomi Y. Perera, The NLRB's Evolving Joint-Employer Standard: Browning-Ferris Industries of California, Inc., 31 ABA J. Lab. & Emp. L. 295, 312 (2016). 159 32 No. 23 Westlaw Journal Employment 07 (referencing Ochoa v. McDonald's Corp., 133 F. Supp. 3d 1228 (N.D. Cal. 2015) and Salazar v. McDonald's Corp., No. 14-cv-2096, 2016 WL 4394165 (N.D. Cal. Aug. 16, 2016)). 160 32 No. 23 Westlaw Journal Employment 07 (referencing Ochoa v. McDonald's Corp., 133 F. Supp. 3d 1228 (N.D. Cal. 2015) and Salazar v. McDonald's Corp., No. 14-cv-2096, 2016 WL 4394165 (N.D. Cal. Aug. 16, 2016)). 161 Hy-Brand Indus. Contractors, Ltd., 365 NLRB No. 156, 2017 WL 6403496, at *1 (Dec. 14, 2017). 162 Hy-Brand Indus. Contractors, Ltd., 366 NLRB No. 26, 2018 WL 1082557, at *1 (Feb. 26, 2018).

163 David J. Pryzbylski, Comment Period for NLRB’s Highly Anticipated Joint-Employer Rule Extended, The National Law Review, Nov. 1, 2018. Accessed at https://www.natlawreview.com/article/comment-period-nlrb-s-highly-anticipated-joint-employer-rule-extended.

164 Id. 165 Browning Ferris Indus. of CA, Inc. v. NLRB, 2018 WL 6816542 (2018) (holding that “The Board also correctly determined that the common-law inquiry is not woodenly confined to indicia of direct and immediate control; an

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Despite Trump’s presidency, the case that the NLRB General Counsel filed on behalf of workers retaliated against for Fight for $15 involvement still continues to this day. However, the new General Counsel has tried to bring the case to an end. Towards that end, the new General Counsel tried to create a settlement with McDonald’s that would not require McDonald’s to accept joint employer liability.166 However, in July, an Administrative Law Judge whose approval was needed to finalize the settlement, rejected the agreement saying it was not “a reasonable resolution based on the nature and scope of the violations alleged and the settlements’ limited remedial impact.”167

The latest update on the settlement is that Fight for $15 recently discovered documents that detail McDonald’s legal strategy to oppose the Fight for $15 cases.168 This is of interest for two reasons.169 One, the fact that McDonald’s, as a corporation, helped its franchisees plan their legal defense lends strength to Fight for $15’s charge that McDonald’s is a joint employer.170 Two, the documents expose that McDonald’s hired two high-powered law firms to help them shape their legal strategy and two of the current Trump-appointed NLRB members used to work at those law firms.171 This will help the Fight for $15 litigators argue that these members should recuse themselves from the case due to conflict of interest, which is an argument that helped them get the harmful Hy-Brand decision (overruling Browning-Ferris) reversed.172 These documents have all been entered as evidence into the workers’ case against McDonald’s.173

Protected Labor Activity Cases in Response to Fight for $15

As in the wave of 2006 immigration protests, the Fight for $15 movement also led to employers retaliating against workers involved in political activism. A case explicitly dealing with Fight for $15 workers facing retaliation was decided by the NLRB at the tail-end of the Obama presidency and upheld by the Eight Circuit in 2017. This case, Nat'l Labor Relations Bd. v. EYM, concerned a Kansas City Fight for $15 organizer who filed a discrimination claim against his Burger King franchise when they failed to re-hire him seemingly because of his participation in the movement.174 While the manager at Burger King argued that she chose not to re-hire the worker because of his prior absences, the NLRB viewed her as not credible, saw her explanations as mere pretext, and ruled that she had discriminated against the worker because of his engagement in concerted protected activity.

employer's indirect control over employees can be a relevant consideration,” but that “In applying the indirect-control factor in this case, however, the Board failed to confine it to indirect control over the essential terms and conditions of the workers' employment.”) 166 Noam Scheiber, Judge Rejects Settlement Over McDonald’s Labor Practices, The New York Times, July 17, 2018. Accessed at https://www.nytimes.com/2018/07/17/business/economy/mcdonalds-franchise-nlrb.html. 167 Id. 168 Hassan A. Kanu, McDonald’s Versus ‘Fight for $15': Documents Reveal Strategy, Sept. 11, 2018. Accessed at https://www.bna.com/mcdonalds-versus-fight-n73014482440/. 169 Id. 170 Id. 171 Id. 172 Id. 173 Id. 174 Nat'l Labor Relations Bd. v. EYM King of Missouri, LLC, 696 F. App'x 759 (8th Cir. 2017).

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The Burger King franchisee argued unsuccessfully that Fight for $15 walk-outs were just intermittent strikes and thus, did not amount to concerted protected activity under the NLRA.175 Until recently, it had mostly been long-term strikes that were protected under the NLRA, so it was an understandable legal argument for the defendant to make. However, in 2016, the NLRB Office of General Counsel issued a memo that “proposed a new framework for intermittent strike adjudication which it argued that the Board should adopt for the sake of clarity and predictability in future cases.”176 Given the framework outlined in the memo, it would be far more likely for the NLRB to arrive at the conclusion that the Fight for $15 one-day strikes constituted protected activity.

Sure enough, the NLRB concluded that “the employees at issue did not participate in the one-day strike as a way of reaping the benefits of a strike without assuming its risks,” and that their strike constitutes protected concerted activity.177 The Eighth Circuit affirmed the Board’s reasoning including the determination that these strikes, though they were only one-day strikes, were protected concerted activity.178

This was incredibly important for the Fight for $15 movement. Since it’s reliance on one-day strikes was a relatively new mass strategy, it was unclear whether the courts would regard it as a protected activity or not. EYM thus provided many workers with relief by indicating that the discipline they faced in response to their Fight for $15 involvement would likely be protected under the NLRA. This new standard for adjudicating intermittent strikes, however, was yet another casualty of the Trump presidency, since it has now been rescinded.179

State Pre-emption Efforts to Block the Fight for $15

As with any successful movement, Fight for $15 gained new enemies with each victory it achieved. And it was not only low-wage employers that fiercely opposed the movement, but right-wing politicians as well. These politicians, friends of the fast-food titans, fought to pass state pre-emption bills, “which essentially bar cities and towns from enacting local wage hikes or other pro-worker laws.”180 Indeed, in recent years, “[l]egislatures in at least 24 states, including Alabama, have responded by passing ‘pre-emption bills’ that either abolish or roll back those increases.”181

In one of the most fascinating cases related to pre-emption, the Legislature in Alabama passed a law abolishing the first wage increase won by Fight for $15 in the South.182 In 2016, the government of 175 Eym King of Missouri, LLC, d/b/a Burger King & Workers Org. Comm.--Kansas City, JD-10-16, 2016 WL 640694 (Feb. 9, 2016). 176 Thomas B. Fiascone, Wouldn't It Be Nice: Searching for Clarity in Intermittent Strike Adjudication, 59 B.C. L. Rev. 1433, 1438-39 (2018). 177 Eym King of Missouri, LLC, d/b/a Burger King & Workers Org. Comm.--Kansas City, JD-10-16, 2016 WL 640694 (Feb. 9, 2016). 178 Nat'l Labor Relations Bd. v. EYM King of Missouri, LLC, 696 F. App'x 759, 762 (8th Cir. 2017). 179 Thomas B. Fiascone, Wouldn't It Be Nice: Searching for Clarity in Intermittent Strike Adjudication, 59 B.C. L. Rev. 1433, 1469 (2018). 180 Michelle Chen, Vote for $15, Dissent, Summer 2016. Accessed at https://www.dissentmagazine.org/article/vote-for-15-minimum-wage-labor-movement. 181 John Blake, The Fight for $15 takes on the 'Jim Crow economy', CNN, Apr. 13, 2018. Accessed at https://www.cnn.com/2018/04/13/us/fight-for-15-birmingham/index.html. 182 Id.


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Birmingham voted to raise the City’s wages and the Legislature swiftly negated their act.183 The state pre-emption law was voted into effect with “all African American legislators voting against it.”184 In response, a coalition of groups, including Fight for $15, sued the state, alleging that abolition of the Birmingham wage increase was motivated by racial animus against the City’s mostly Black residents.185 The case alleged violations of the Equal Protection Clause and §2 of the Voting Rights Act.186 Unsurprisingly, the District Court ruled for the defendants and dismissed the suit.187 But then, in July 2018, the Eleventh Circuit reversed and “ruled the state's preemption law violated [the] 14th Amendment's equal protection rights.”188 It was a thrilling legal victory for the movement in Birmingham and across the nation.

It was not the only victory against pre-emption. In Colorado, the Legislature repealed a minimum wage pre-emption law that was still on the books from 1999.189 In Missouri, on the other hand, the Legislature passed a pre-emption bill blocking localities from increasing their minimum wage, in the wake of minimum wage increase victories in both Kansas City and St. Louis.190 But then, in November 2018, voters went to the ballot box and sidestepped the pre-emption bill, by passing a statewide minimum wage increase that will eventually raise wages to $12 per hour.191

Labor Protections for Fight for $15 Apparel

As with any successful movement, the workers in Fight for $15 expressed their emphatic support for the campaign by donning Fight for $15 apparel. Their shirts, pins, and stickers were another contested terrain, as employers sometimes retaliated against them for their movement paraphernalia.

Just this past summer, the Fifth Circuit addressed whether In-N-Out workers had been unlawfully disciplined for wearing Fight for $15 buttons at work.192 In a single day, on April 17, 2015, multiple

183 Id. 184 Teresa Mathew, Workers of the World, United, CityLab, May 7, 2018. Accessed at https://www.citylab.com/equity/2018/05/workers-of-the-world-united/559778/. 185 John Blake, The Fight for $15 takes on the 'Jim Crow economy', CNN, Apr. 13, 2018. Accessed at https://www.cnn.com/2018/04/13/us/fight-for-15-birmingham/index.html. 186 Teresa Mathew, Workers of the World, United, CityLab, May 7, 2018. Accessed at https://www.citylab.com/equity/2018/05/workers-of-the-world-united/55. 187 Yuki Noguchi, In Battle Pitting Cities Vs. States Over Minimum Wage, Birmingham Scores A Win, National Public Radio, July 27, 2018. Accessed at https://www.npr.org/2018/07/27/632723920/in-battle-pitting-cities-vs-states-over-minimum-wage-birmingham-scores-a-win. 188 Id. 189 Colorado House Approves Repeal of Preemption Law Blocking Local Minimum Wage Increases, National Employment Law Project, Apr. 26, 2018. Accessed at https://www.nelp.org/news-releases/colorado-house-approves-repeal-preemption-law-blocking-local-minimum-wage-increases/. 190 Dave Jamieson, Missouri GOP Killed St. Louis’ $10 Wage Floor. Now Activists Want A Statewide Vote On $12., Huff Post, Aug. 7, 2017. Accessed on https://www.huffingtonpost.com/entry/missouri-minimum-wage-statewide-referendum_us_5988d440e4b0a66b8badc394. 191 Dave Jamieson, Missouri Voters Approve Minimum Wage Hike, HuffPost, Nov. 6, 2018. Accessed at https://www.huffingtonpost.com/entry/missouri-voters-approve-minimum-wage-hike-after-republicans-tried-to-block-them_us_5bd776ece4b017e5bfd4d8ac. 192 In-N-Out Burger, Inc. v. Nat'l Labor Relations Bd., 894 F.3d 707 (5th Cir. 2018).

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employees wore Fight for $15 buttons and at least one was told to remove it from their uniform.193 The employee filed an unfair labor practices charge against In-N-Out in response to their treatment.194 The workers argued that their right to wear Fight for $15 buttons was protected by §7 of the NLRA, which guarantees an employee’s right to wear items that speak to terms and conditions of their employment.195 In-N-Out tried to argue that food safety and public image concerns were special circumstances in this case, which justified their efforts to abridge workers’ rights.196 The Court rejected In-N-Out’s special circumstances arguments and ruled for the workers, affirming that their ability to wear Fight for $15 pins is protected by §7 of the NLRA.197

Shareholder Organizing and Corporate Responsibility

Beyond merely employing protest tactics, the Fight for $15 also sought to affect corporate structures directly through petitions and proposals at shareholder meetings. That was clearly on display in 2015 when advocates presented a petition to McDonald’s at its annual shareholder meeting with more than 1.4 million signatures calling for the company to set an internal minimum wage of $15 an hour.198 Advocates also organized to get Staples, another low-wage employer, to articulate support for minimum wage reform.199 The proposal failed to pass and yet advocates followed up by challenging Staples for failing to include the proposal in the proxy materials they submitted to the SEC.200 Ultimately, however, the SEC determined that the proposal for minimum wage reform was an internal matter related to the ordinary business operations of Staples and therefore, Staples could exclude it from its submitted proxy materials.201 In this way the SEC Special Counsel distinguished proposals for minimum wage reform from those for, say, health care reform, which the Special Counsel had required companies to include in their proxy materials because they “raise significant policy matters.”202

A year later, the SEC Special Counsel issued nearly identical statements with regards to similar minimum wage reform proposals made at Home Depot, Inc.203 and the TJX Companies, Inc.204 In order to skirt the ‘ordinary business operations’ exception, the Fight for $15 activists developing proposals in 2017 had included a disclaimer stating that “the proposal did not ‘seek to address the [c]ompany’s internal approach to compensation, general employee compensation matters, or implementation of its principles for minimum wage reform.’”205 Despite this disclaimer, the SEC Special Counsel once again determined that the proposals need not be included in the company’s proxy materials. 193 Id. at 712. 194 Id. 195 Id. at 714. 196 Id. at 720. 197 Id. 198 Sévrine Knuchel, Examining Workers' Rights in International Human Rights Law: The Fast-Food Workers' Movement in the United States, 33 Hofstra Lab. & Emp. L.J. 1, 3 (2015). 199 Staples, Inc., 2016 WL 910344, at *1 (S.E.C. No - Action Letter Mar. 8, 2016). 200 Id. 201 Id. 202 Id. 203 The Home Depot, Inc., 2017 WL 193087, at *1 (S.E.C. No - Action Letter Mar. 1, 2017). 204 The TJX Companies, Inc., 2017 WL 526963, at *1 (S.E.C. No - Action Letter Mar. 1, 2017). 205 Ronald O. Mueller and Elizabeth Ising, Shareholder Proposal Developments During the 2017 Proxy Season, Harvard Law School Forum on Corporate Governance and Financial Regulation, July 12, 2017. Accessed at https://corpgov.law.harvard.edu/2017/07/12/shareholder-proposal-developments-during-the-2017-proxy-season/.

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#REDFORED AND THE WAVE OF 2018 TEACHERS STRIKES

Beginning in West Virginia, the nation saw a surge of teacher organizing in 2018 that resulted in significant victories in a handful of states that have the lowest teacher pay. The movement erupted on February 22, 2018, in West Virginia, where teacher pay is 48th in the nation.206 It was the first teacher strike there since 1990.207 The demands included not only increased pay, but also better healthcare and an end to the proposal to eliminate traditional teacher seniority.208 While the state legislature’s passage of a ‘right to work’ law in 2016 seemed to signal public antipathy towards unions, public support throughout the protests actually remained very high.209 After nine days of wildcat striking, which closed down all 55 school districts,210 the teachers made some relatively large gains including a 5% raise, which benefited not just teachers, but other state employees as well.211 Incredibly, the bill to raise teacher salaries was passed unanimously by both chambers of the Republican-controlled state legislature.212 In response to the teachers’ concerns about healthcare benefits, the state also formed a workgroup to address how to improve teachers’ benefits.213

Nearly a month after the West Virginia protests, “teachers in Kentucky went out on illegal wildcat strikes in more than 25 counties against the wishes of union leaders to protest against draconian changes to the state’s pensions plan.”214 In Kentucky, the legislature had rapidly approved a bill that would make the amount of teachers’ pensions far less predictable.215 Teachers were so incensed by this pension bill that they mobilized widespread opposition to the Legislature despite the fact that the it had just passed a bill raising teacher salaries by, on average, $6,000.216 However, it had been their first raise in over ten years.217 The

206 Mike Elk, West Virginia teachers stage walkout over wages and benefits, The Guardian, Feb. 22, 2018. Accessed at https://www.theguardian.com/education/2018/feb/22/teacher-walkout-west-virginia-strike-pay-cuts-protest. 207 Id. 208 Id. 209 Id. 210 Richard Cano, #RedForEd: How Arizona's movement went from red T-shirts to a walkout, The Republican (azcentral.com), April 21, 2018. Accessed at https://www.azcentral.com/story/news/local/arizona-education/2018/04/21/timeline-arizona-redfored-movement-teacher-pay-walkout/538683002/. 211 Jess Bidgood, West Virginia Raises Teachers’ Pay to End Statewide Strike, New York Times, Mar. 6 2018, Accessed at https://www.nytimes.com/2018/03/06/us/west-virginia-teachers-strike-deal.html. 212 Id. 213 Id.; see also Adam Gabbatt, Teachers' strikes: meet the leaders of the movement marching across America, The Guardian, April 16, 2018. Accessed at https://www.theguardian.com/education/2018/apr/16/teachers-strikes-movement-leaders-west-virginia-oklahoma-arizona. 214 Mike Elk, Wave of teachers' wildcat strikes spreads to Oklahoma and Kentucky, The Guardian, April 2, 2018. Accessed at https://www.theguardian.com/us-news/2018/apr/02/teachers-wildcat-strikes-oklahoma-kentucky-west-virginia. 215 Cory Turner, Teacher Walkouts: A State By State Guide, NPR, April 25, 2018. Accessed at https://www.npr.org/sections/ed/2018/04/25/602859780/teacher-walkouts-a-state-by-state-guide 216 Mike Elk, Wave of teachers' wildcat strikes spreads to Oklahoma and Kentucky, The Guardian, April 2, 2018. Accessed at https://www.theguardian.com/us-news/2018/apr/02/teachers-wildcat-strikes-oklahoma-kentucky-west-virginia. 217 Jane McAlveny, Teachers Are Leading the Revolt Against Austerity, The Nation, May 9, 2018. Accessed at https://www.thenation.com/article/teachers-are-leading-the-revolt-against-austerity/.

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salary increase had not mollified the teachers and they showed in force to protest the disruptive pension plans.

Days after the Kentucky protests, Oklahoma teachers also coordinated a strike of teachers, this one representing over 100 school districts.218 Uniquely, the Oklahoma protests also included an 110-mile March for Education, planned and led by teachers.219

Over the following weeks, as protests grew in Oklahoma and Kentucky, Arizona teachers began holding larger and larger demonstrations.220 One week they staged a protest against the governor outside a building where he was giving a radio interview.221 They then went to the State Capital to protest new legislation devised to disproportionately benefit private schools.222 Not long afterwards, teachers in one district, the Pendergast District, staged a sick-out which closed nine schools.223 By this time, the stage was set for a bigger action and when a statewide walk-out was called, over 100,000 people participated.224

Once the #RedforEd campaign coalesced in Arizona, teachers went on strike and demanded a 20% salary increase, restoration of school funding in the budget, competitive pay for their support staff, annual raises, and no new tax cuts.225 Uniquely, along with coordinating walk-outs and marches, Arizona teachers agitated for statements of support by local school boards and eventually secured these statements in more than thirty separate districts.226

One unique aspect of the Arizona strikes was the effort to engage non-teachers in the strikes and to ensure benefits for non-teachers as well. Thus, for example, they included a demand for competitive pay for education support staff in their initial demands.227 They also rejected an early proposal from the Governor

218 Mike Elk, Wave of teachers' wildcat strikes spreads to Oklahoma and Kentucky, The Guardian, April 2, 2018. Accessed at https://www.theguardian.com/us-news/2018/apr/02/teachers-wildcat-strikes-oklahoma-kentucky-west-virginia. 219 Adam Gabbatt, Teachers' strikes: meet the leaders of the movement marching across America, The Guardian, April 16, 2018. Accessed at https://www.theguardian.com/education/2018/apr/16/teachers-strikes-movement-leaders-west-virginia-oklahoma-arizona. 220 Richard Cano, #RedForEd: How Arizona's movement went from red T-shirts to a walkout, The Republican (azcentral.com), April 21, 2018. Accessed at https://www.azcentral.com/story/news/local/arizona-education/2018/04/21/timeline-arizona-redfored-movement-teacher-pay-walkout/538683002/. 221 Id. 222 Id. 223 Id. 224 Id./ 225 What are Arizona teachers' 5 demands?, The Republic (azcentral.com), April 11, 2018, Accessed at https://www.azcentral.com/story/news/local/arizona-education/2018/04/11/what-arizona-teachers-5-demands-redfored/506728002/. 226 Richard Cano, #RedForEd: How Arizona's movement went from red T-shirts to a walkout, The Republican (azcentral.com), April 21, 2018. Accessed at https://www.azcentral.com/story/news/local/arizona-education/2018/04/21/timeline-arizona-redfored-movement-teacher-pay-walkout/538683002/. 227 What are Arizona teachers' 5 demands?, The Republic (azcentral.com), April 11, 2018, Accessed at https://www.azcentral.com/story/news/local/arizona-education/2018/04/11/what-arizona-teachers-5-demands-redfored/506728002/.







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because he had called for cuts to other social programs in order to fund increased teacher salaries.228 Again and again, Arizona teachers considered the needs of workers other than teachers and rallied for them. Notably, however, the Arizona teachers did ultimately end their strike after having secured legislation that did not increase the salaries of non-teachers.229

The Arizona strike came to an end on May 2, 2018, after the legislature approved a bill restoring $100 million to education and granting teachers a 9% immediate salary raise (with Governor Doug Ducey promising to bring them up to a 20% raise by 2020). 230 Interestingly, tucked into the bill was also an increase in funding for the Koch-Brothers-backed Freedom Schools programs at both University of Arizona and Arizona State.231 Overall, the Arizona Education Association strongly opposed the bill, but noted that it clearly resulted from a historic organizing effort and contained some important gains.232 Democrats and teachers were especially concerned that the salary increase occurred without eliminating any tax cuts or loopholes, giving them reason to doubt that the increased funding would be sustainable.233 Since the bill largely mirrored a proposal the Governor had crafted prior to the walkout, it is anyone’s guess whether the walk-out had a direct effect on the legislative process.234

After the bill passed, the #RedforEd movement in Arizona largely shifted its focus to electoral politics, pivoting towards the November 2018 mid-term elections. A number of teachers announced their candidacies for office.235 Plus, organizers committed to ousting a host of incumbents that did not adequately support teachers.236 The crown jewel of their electoral strategy was “a $690 million November ballot effort that would increase income taxes on the wealthiest 1 percent of Arizonans to fund education.”237 Teachers

228 Cory Turner, Teacher Walkouts: A State By State Guide, NPR, April 25, 2018. Accessed at https://www.npr.org/sections/ed/2018/04/25/602859780/teacher-walkouts-a-state-by-state-guide. 229 Arizona teacher walkout: Leaders say they'll go back to work once budget is passed, AP (abc15.com), May 1, 2018. Accessed at https://www.abc15.com/news/region-phoenix-metro/central-phoenix/arizona-teacher-walkout-leaders-say-theyll-go-back-to-work-thursday-if-budget-is-passed. 230 Id. 231 Id. 232 Id. 233 Red for Ed update: Ducey signs K-12 education portion of budget, AP (abc15.com), May 3, 2018. Accessed at https://www.abc15.com/news/region-phoenix-metro/central-phoenix/governor-doug-ducey-says-he-will-sign-budget-plan-approved-by-senate-house. 234 Ricardo Cano, In aftermath of #RedForEd walkout, Arizona teachers vow to continue political activism, The Republic (azcentral.com), May 6, 2018. Accessed at https://www.azcentral.com/story/news/local/arizona-education/2018/05/06/arizona-teacher-redfored-walkout-educators-look-toward-november-ballot-income-tax/572901002/. 235 Richard Ruelas, Arizona elections: #RedForEd, public education issues make way onto November ballot, Arizona Republic (azcentral.com), July 12, 2018. Accessed at https://www.azcentral.com/story/news/politics/elections/2018/07/12/arizona-elections-red-ed-public-education-issues-november-ballot/780002002/. 236 Ricardo Cano, In aftermath of #RedForEd walkout, Arizona teachers vow to continue political activism, The Republic (azcentral.com), May 6, 2018. Accessed at https://www.azcentral.com/story/news/local/arizona-education/2018/05/06/arizona-teacher-redfored-walkout-educators-look-toward-november-ballot-income-tax/572901002/. 237 Id.

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turned out in huge numbers to gather signatures for the ballot measure, in the scorching heat, and ended up turning in twice the number of signatures than they needed.238

As the Arizona teachers hit the streets for signature gathering, teachers in Colorado, influenced by the strikes elsewhere, coordinated a demonstration of 10,000 teachers at the Capital.239 They primarily protested against the Legislature’s failure to uphold a Constitutional amendment passed in 2000, which was supposed to guarantee stable education funding and link increases in education funding to inflation.240 Instead, over the years, the Colorado Legislature had massively reduced education funding and the state Supreme Court had ruled their actions constitutional.241 Teachers in Colorado showed up in force to demand enforcement of the 2000 Constitutional amendment despite the state Supreme Court’s ruling.

Back in Arizona, despite gathering far more signatures for their ballot measure than necessary, it did not ultimately end up on the November ballot. Once the teachers had gathered the signatures, the measure was sent to a Republican-controlled legislative committee that is tasked with “developing nonpartisan language to describe ballot measures in informational pamphlets once a measure qualifies for the ballot.”242 Incensed by what they saw as partisan shaping of the pamphlet language, teachers challenged the legislative committee’s drafting in Superior Court.243 The court actually required the legislative committee to re-draft the language, having agreed with the teachers that the original draft was biased.244 Teachers were not at all impressed by the legislative committee’s second attempt at drafting, with the chairman of the ballot measure effort describing the revisions as “even more biased than the original version.”245

Despite the flawed pamphlet language, the teachers still wanted to see the measure on the ballot. However, a state Supreme Court decision in late September dashed their hopes of bringing their measure to the public.246 The case, brought by opponents of the teachers’ strikes, alleged that the teachers had provided misleading language on their signature-gathering sheets, thus misleading those who signed on to place the measure on the November ballot. The Arizona Supreme Court agreed that the “description of the initiative’s principal provisions omitted material provisions and created a significant danger of confusion or unfairness to those who signed petitions to place the measure on the ballot.”247 Even as the Court proclaimed that “the courts must not intrude upon the people’s power to legislate,” the Arizona Supreme Court went on to strike the measure from the November ballot because it found the 100-word description

238 Richard Ruelas, Arizona elections: #RedForEd, public education issues make way onto November ballot, Arizona Republic (azcentral.com), July 12, 2018. Accessed at https://www.azcentral.com/story/news/politics/elections/2018/07/12/arizona-elections-red-ed-public-education-issues-november-ballot/780002002/. 239 Rob Taylor, Spotlight, 14 No. 6 Quinlan, Education Employment Law Bulletin NL 1, June 2018. 240 Id. 241 Id. 242 Angela Forburger, #RedForEd advocates slam wording changes for school-funding ballot measure, Arizona Republic (azcentral.com), Aug. 26, 2018. Accessed at https://www.azcentral.com/story/news/local/arizona-education/2018/08/26/redfored-investined-supporters-disappointed-following-change-ballot-measure-prop-207-education-tax/1099246002/. 243 Id. 244 Id. 245 Id. 246 Molera v. Reagan, 428 P.3d 490 (2018) 247 Id. at 492.



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provided by the measure’s proponents to contain material omissions and thus, to be potentially misleading.248

After this stark loss, teachers mobilized to protest the Chamber of Commerce, which had helped to fund the successful legal challenge to their ballot measure.249 They also recommitted to support candidates who had pledged to support teachers’ issues and to oust those candidates who had not.250 There was a lot of electoral organizing to be done because in Arizona and across the nation, hundreds of current and former teachers were on the ballot running for office, in numbers unprecedented prior to #RedforEd.251 That included many teachers in Arizona, but also at least 34 in Kentucky and 55 in Oklahoma.252 As the fall approached, teachers invested tremendous energy into converting their grassroots efforts into successful electoral strategies.

In these electoral strategies, teachers’ unions played a significant role, even though they had had varying relationships to the protest movement in its initial months. For example, when the strikes were still underway in West Virginia, the most important feature of union involvement in the teachers strikes was that “teachers disregarded union leaders’ advice to return to work when the governor first promised them the raise . . . deciding in meetings at malls and union halls and in Facebook groups that they would stay out until their raise was enacted in law.”253 Despite this early tension, the unions did soon get on board and support the teachers’ efforts in West Virginia.254 The same was true in Kentucky, weeks later, where teachers went out on strike “ against the wishes of union leaders.”255 In Oklahoma, at least some teachers took to social media to criticize the unions for calling for teachers to return to work before most of the campaign’s demands had been met.256 The unions there had told workers to shift their focus from strikes to electoral politics, and that message likely influenced teachers’ decisions to return to work.257

Some posit that teachers were free to make decisions contrary to their union leadership because the protests had mostly occurred in conservative, ‘right-to-work’ states.258 These are states where trade unions

248 Id. at 493. 249 Sonu Wasu, RedforEd movement sparked again after Arizona Supreme Court ruling, ABC 15, Sept. 4, 2018. Accessed at https://www.abc15.com/news/region-phoenix-metro/central-phoenix/redfored-movement-sparked-again-after-arizona-supreme-court-ruling. 250 Id. 251 Carolyn Thompson and AP, Red for Ed Teachers Now in a Drive to Win Elections, NPR KNAU, Oct. 3, 2018. Accessed at http://www.knau.org/post/red-ed-teachers-now-drive-win-elections. 252 Id. 253 Jess Bidgood, West Virginia Raises Teachers’ Pay to End Statewide Strike, New York Times, Mar. 6 2018, Accessed at https://www.nytimes.com/2018/03/06/us/west-virginia-teachers-strike-deal.html. 254 Adam Gabbatt, Teachers' strikes: meet the leaders of the movement marching across America, The Guardian, April 16, 2018. Accessed at https://www.theguardian.com/education/2018/apr/16/teachers-strikes-movement-leaders-west-virginia-oklahoma-arizona. 255 Mike Elk, Wave of teachers' wildcat strikes spreads to Oklahoma and Kentucky, The Guardian, April 2, 2018. Accessed at https://www.theguardian.com/us-news/2018/apr/02/teachers-wildcat-strikes-oklahoma-kentucky-west-virginia. 256 Around the Nation, 45 No. 10 Quinlan, School Law Bulletin NL 5, May 25, 2018. 257 Id. 258 Pedro Noguera, What’s at Stake in the Teachers’ Strikes?, The Nation, April 19, 2018. Accessed at https://www.thenation.com/article/whats-at-stake-for-striking-teachers/.

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have less power259 and it’s conceivable that the grassroots felt greater flexibility and discretion in these states since they had less strong union infrastructure.

Another factor contributing to the teachers’ ability to make decisions independent of union leadership was their use of social media. Significantly, most of the teachers strikes were founded online, on Facebook in particular. The West Virginia effort was first publicized by teachers Jay O’Neal and Emily Comer just five months before the movement won its 5% raise.260 Only three months later, “it had 20,000 members and had become a key organizing hub for teachers ahead of the strike.”261 In Kentucky, public school employee Nema Brewer, co-founded the Facebook group that catalyzed the movement and the group had 40,000 members within a month of its creation.262 In Oklahoma, as well, the original Facebook group quickly ballooned, generating 17,000 members in its first six hours and eventually peaking at more than 80,000 members.263 In Arizona, the original Facebook group for the campaign garnered more than 40,000 members as well.264 The first #RedforEd demonstration in Arizona was also social media driven, relying almost entirely on Twitter.265 For these reasons, the co-founder of the initial Facebook group said, “social media has been ‘incredibly vital.’”266

In West Virginia, teachers turned to social media not only to recruit, but also to make decisions, including when it came to whether to abide by the union’s advice to return to work or not.267 Similarly, in Kentucky, teachers used social media in order to make decisions counter to those proposed by union leadership.268 This led the head of the state’s American Federation of Teachers local, Ed Allen, to comment that “[t]his social media crowd is adding a different element that I haven’t seen before.”269 Indeed, the decentralized decision-making facilitated by social media caught some union leaders off guard.

In Oklahoma, particularly, Facebook was not just used to coordinate communication, but also to livestream events as they unfolded. Marq Lewis, who coordinated the 110-mile March for Education, livestreamed interviews and supporter reactions on Facebook during his March, garnering up to 80,000

259 Id. 260 Adam Gabbatt, Teachers' strikes: meet the leaders of the movement marching across America, The Guardian, April 16, 2018. Accessed at https://www.theguardian.com/education/2018/apr/16/teachers-strikes-movement-leaders-west-virginia-oklahoma-arizona. 261 Id. 262 Melissa Daniels, How social media helped teachers organize in Arizona, across nation, AP, April 19, 2018. Accessed at https://www.azcentral.com/story/news/local/arizona-education/2018/04/19/social-media-helped-teachers-organize-arizona-across-nation/532318002/. 263 Id. 264 Id. 265 Id. 266Id. 267 Jess Bidgood, West Virginia Raises Teachers’ Pay to End Statewide Strike, New York Times, Mar. 6 2018, Accessed at https://www.nytimes.com/2018/03/06/us/west-virginia-teachers-strike-deal.html. 268 Mike Elk, Wave of teachers' wildcat strikes spreads to Oklahoma and Kentucky, The Guardian, April 2, 2018. Accessed at https://www.theguardian.com/us-news/2018/apr/02/teachers-wildcat-strikes-oklahoma-kentucky-west-virginia. 269 Id.



https://www.azcentral.com/story/news/local/arizona-education/2018/04/19/social-media-helped-teachers-organize-arizona-across-nation/532318002/






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views on some livestreams.270 Even more significantly, the organizers in Arizona used Facebook Live to share news of a planned vote amongst rank-and-file teachers on whether or not to strike.271

Social media played yet another important role in the protests by helping teachers gauge the degree of public support for their actions.272 Since strikes inevitably cause inconvenience to working families by canceling schools for multiple days, it is incredibly useful for teachers to have tools to evaluate how public support for the protests shifts over time. In this respect, social media gave teachers a tool they did not previously have because with social media, teachers can “tell in real time how supportive their friends and neighbors are[.]”273 The teachers’ ability to track public support and make decisions about when to end the strike based on these evaluations, may help to explain why public support for teacher strikes remained high throughout the summer across the nation.274 In this way, on top of helping teachers with communication, decision-making and public relations, social media also gave teachers a useful tool for tracking how public opinion about their strikes evolved over time and making more informed decisions about when to call it off.

The Lasting Impact of #RedforEd and the Wave of Teachers Strikes

The teachers strikes had substantial impacts on education funding in most states where they occurred. The effect of the movement on the midterm elections, however, was far less clear. In Arizona, while the movement’s biggest ballot measure did not come before the voters due to the state Supreme Court ruling, other decisions made by the voters did not reflect well on the movement. For example, “voters in several . . . districts rejected measures that would have infused more than $250 million into their local school districts.”275 This, despite the fact that public polls seemed to suggest strong public support for the teacher protests.276 There was a serious question amongst advocates “whether the raises most Arizona educators 270 Adam Gabbatt, Teachers' strikes: meet the leaders of the movement marching across America, The Guardian, April 16, 2018. Accessed at https://www.theguardian.com/education/2018/apr/16/teachers-strikes-movement-leaders-west-virginia-oklahoma-arizona. 271 Melissa Daniels, How social media helped teachers organize in Arizona, across nation, AP, April 19, 2018. Accessed at https://www.azcentral.com/story/news/local/arizona-education/2018/04/19/social-media-helped-teachers-organize-arizona-across-nation/532318002/. 272 Mike Elk, Wave of teachers' wildcat strikes spreads to Oklahoma and Kentucky, The Guardian, April 2, 2018. Accessed at https://www.theguardian.com/us-news/2018/apr/02/teachers-wildcat-strikes-oklahoma-kentucky-west-virginia. 273 Id. 274 Jane McAlveny, Teachers Are Leading the Revolt Against Austerity, The Nation, May 9, 2018. Accessed at https://www.thenation.com/article/teachers-are-leading-the-revolt-against-austerity/ (noting that three-quarters of respondents to one poll in late April supported teachers’ right to strike); see also Tim Walker, Poll: Public Support for Teacher Strikes, Higher Pay Runs Wide and Deep, NEA TODAY, Aug. 27, 2018. Accessed at http://neatoday.org/2018/08/27/pdk-poll-2018/ (detailing 2018 Phi Delta Kappa Poll showing that “[s]eventy-eight percent of public school parents (and 73 percent of the public) say they would support teachers in the[ir] own communities if they went on strike for higher pay” and “[t]wo-thirds of Americans believe teacher salaries are too low.”). 275 Lily Altavena, Teacher Candidates, Bonds and Overrides: Did #RedforEd Impact Arizona Elections?, Arizona Republic (azcentral.com), Nov. 10, 2018. Accessed at https://www.azcentral.com/story/news/politics/airzona-education/2018/11/09/how-did-redfored-fare-election-results-candidates-school-districts-bond-override-mesa-doug-ducey/1921387002/. 276 Jane McAlveny, Teachers Are Leading the Revolt Against Austerity, The Nation, May 9, 2018. Accessed at https://www.thenation.com/article/teachers-are-leading-the-revolt-against-austerity/ (noting that three-quarters of respondents to one poll in late April supported teachers’ right to strike).








http://neatoday.org/2018/08/27/pdk-poll-2018/

https://www.azcentral.com/story/news/politics/airzona-education/2018/11/09/how-did-redfored-fare-election-results-candidates-school-districts-bond-override-mesa-doug-ducey/1921387002/





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got at the conclusion of the teacher walkout led voters to incorrectly assume that the school system’s funding woes were resolved.”277 If so, this would seem to reflect a failure of the movement’s messaging leading into elections.

The success of candidates supported by the movement in Arizona was also a mixed bag. While “there appeared to be a spike in successful local school board candidates who supported the movement,” it remained the case that most teacher candidates running for the legislature lost.278 That was the case across the nation, where “most of the candidates inspired by the walkouts in the spring lost their elections.”279 Interestingly, while teacher candidates or candidates supportive of public education fared rather well across the nation, “[t]hey were least successful in the states that” witnessed energized teachers strikes.280

Legal Tactics Employed Against the Movement

Unlike the Fight for $15, #RedforEd did not employ a variety of legal tactics in their struggle, focusing instead on strikes and marches. However, those opposing the teachers’ strikes did try to marshal the power of the law against the teachers. In Arizona, one Representative tried to pass three amendments targeting teachers, one of which would fine teachers up to $5,000 for using their classroom time to espouse political ideology.281 All of her amendments were voted down.282 A Republican-backed Colorado bill also promised to “slap striking teachers with potential fines and jail time.”283 The Bill, called “Prohibit Public School Teacher Strikes,” was eventually pulled by its sponsors.284 Like the pre-emption bills used against the Fight for $15 movement, #RedforEd had notable success in challenging the legislative opposition they faced.

Legal Questions that Arose During #RedforEd and Other Teachers Strikes

277 Lily Altavena, Teacher Candidates, Bonds and Overrides: Did #RedforEd Impact Arizona Elections?, Arizona Republic (azcentral.com), Nov. 10, 2018. Accessed at https://www.azcentral.com/story/news/politics/airzona-education/2018/11/09/how-did-redfored-fare-election-results-candidates-school-districts-bond-override-mesa-doug-ducey/1921387002/. 278 Id. 279 Mike Antonucci, Union Report: Election Results, #RedForEd, and the NEA: Lessons From Teacher-Candidates About This Year’s Vote — and the Next One, The74, Nov. 14, 2018. Accessed at https://www.the74million.org/article/union-report-election-results-redfored-and-the-nea-lessons-from-teacher-candidates-about-this-years-vote-and-the-next-one/. 280 Id. 281 Ricardo Cano, In aftermath of #RedForEd walkout, Arizona teachers vow to continue political activism, The Republic (azcentral.com), May 6, 2018. Accessed at https://www.azcentral.com/story/news/local/arizona-education/2018/05/06/arizona-teacher-redfored-walkout-educators-look-toward-november-ballot-income-tax/572901002/. 282 Id. 283 Nicole Knight, ‘There’s This Little Fear’: Arizona Teachers Consider Legislative Backlash Against Walkout, Rewire.News, Apr. 24, 2018. Accessed at https://rewire.news/article/2018/04/24/theres-little-fear-arizona-teachers-consider-legislative-backlash-walkout/. 284 Blair Miller, Sponsor pulls bill aiming to punish Colorado teachers who go on strike, ABC 7, Apr. 30, 2018. Accessed at https://www.thedenverchannel.com/news/politics/sponsor-pulls-bill-aiming-to-punish-colorado-teachers-who-go-on-strike; see also Rob Taylor, Spotlight, 14 No. 6 Quinlan, Education Employment Law Bulletin NL 1, June 2018.




https://www.the74million.org/article/union-report-election-results-redfored-and-the-nea-lessons-from-teacher-candidates-about-this-years-vote-and-the-next-one/

https://www.the74million.org/article/union-report-election-results-redfored-and-the-nea-lessons-from-teacher-candidates-about-this-years-vote-and-the-next-one/




https://rewire.news/article/2018/04/24/theres-little-fear-arizona-teachers-consider-legislative-backlash-walkout/

https://rewire.news/article/2018/04/24/theres-little-fear-arizona-teachers-consider-legislative-backlash-walkout/

https://www.thedenverchannel.com/news/politics/sponsor-pulls-bill-aiming-to-punish-colorado-teachers-who-go-on-strike

https://www.thedenverchannel.com/news/politics/sponsor-pulls-bill-aiming-to-punish-colorado-teachers-who-go-on-strike


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Early on in the spate of teachers strikes, when West Virginia teachers first took to the streets, the West Virginia Board of Education scheduled a meeting to consider taking legal action against teachers who participated in the protests.285 Had the Board of Education ultimately tried to criminalize teachers strikes, they would have had a substantial legal foundation for their actions. In 1990, during the last round of West Virginia teachers strikes, the state Attorney General’s Office had announced that “concerted work stoppages are illegal.”286 That same year, a state Supreme Court decision upheld a county’s preliminary injunction against a teacher strike, noting that “[p]ublic employees have no right to strike in the absence of express legislation or, at the very least, appropriate statutory provisions for collective bargaining, mediation, and arbitration.”287 Thus, in 2018, based primarily on these two sources, the state Board of Education was considering taking legal and disciplinary action against striking teachers.288 In response, union lawyers were at the ready to defend the teachers.289 However, fortunately, the state Board of Education eventually canceled the meeting.

In Arizona, the climate was different. The threat of legal action against teachers was less pervasive. Since more than thirty school districts had declared support for #RedforEd, teachers by-and-large did not worry about discipline from their schools.290 However, one state representative, Rep. Kelly Townsend (R-Mesa), threatened legal action when she said, “anyone wronged or impacted by the walkout should contact [my] office for potential legal action.”291 In the face of massive backlash however, she walked back this threat later, saying she is “not looking to sue teachers.”292 A Phoenix-area school district also threatened to fine teachers if they wore Red for Ed or Save our Schools t-shirts.293 The Kyrene School District in Arizona did this as well.294 Both districts reminded teachers that they could be fined up to $5,000 for wearing shirts that advocated a political message.295 It is not evident that any teachers ended up facing these fines, however.

285 Ryan Quinn, WV school employees may face legal consequences for work stoppage, Charleston Gazette-Mail, Feb. 20, 2018. Accessed at https://www.wvgazettemail.com/news/education/wv-school-employees-may-face-legal-consequences-for-work-stoppage/article_e7da3f04-ff6e-54a7-9c63-5e7859fbd653.html; see also Mike Elk, West Virginia teachers stage walkout over wages and benefits, The Guardian, Feb. 22, 2018. Accessed at https://www.theguardian.com/education/2018/feb/22/teacher-walkout-west-virginia-strike-pay-cuts-protest. 286 Letter by Roger Tomkins, Attorney General, State of West Virginia, Office of the Attorney General, Mar. 8, 1990. Accessed at https://ago.wv.gov/publicresources/Documents/Opinions%201986-1994/1990-03-08%20Opinion%20letter%20signed%20by%20Roger%20Tompkins%20(M0040939xCECC6).PDF. 287 Jefferson Cty. Bd. of Educ. v. Jefferson Cty. Educ. Ass'n, 183 W. Va. 15, 21 (1990). 288 Ryan Quinn, WV school employees may face legal consequences for work stoppage, Charleston Gazette-Mail, Feb. 20, 2018. Accessed at https://www.wvgazettemail.com/news/education/wv-school-employees-may-face-legal-consequences-for-work-stoppage/article_e7da3f04-ff6e-54a7-9c63-5e7859fbd653.html. 289 Ryan Quinn, WV school employees may face legal consequences for work stoppage, Charleston Gazette-Mail, Feb. 20, 2018. Accessed at https://www.wvgazettemail.com/news/education/wv-school-employees-may-face-legal-consequences-for-work-stoppage/article_e7da3f04-ff6e-54a7-9c63-5e7859fbd653.html. 290 Gabriel Sandler and Chris McCrory, Tens of thousands hit street to protest education funding in Red for Ed march to Capitol, Cronkite News (PBS Arizona), April 26, 2018. Accessed at https://cronkitenews.azpbs.org/2018/04/26/red-for-ed/. 291 Id. 292 Id. 293 Phoenix-area school district warns staff against wearing Red for Ed shirts, KTAR News, May 11, 2018. Accessed at http://ktar.com/story/2060646/phoenix-area-school-district-warns-staff-against-wearing-red-for-ed-shirts/. 294 Id. 295 Id.

https://www.wvgazettemail.com/news/education/wv-school-employees-may-face-legal-consequences-for-work-stoppage/article_e7da3f04-ff6e-54a7-9c63-5e7859fbd653.html



https://ago.wv.gov/publicresources/Documents/Opinions%201986-1994/1990-03-08%20Opinion%20letter%20signed%20by%20Roger%20Tompkins%20(M0040939xCECC6).PDF

https://ago.wv.gov/publicresources/Documents/Opinions%201986-1994/1990-03-08%20Opinion%20letter%20signed%20by%20Roger%20Tompkins%20(M0040939xCECC6).PDF





https://cronkitenews.azpbs.org/2018/04/26/red-for-ed/

http://ktar.com/story/2060646/phoenix-area-school-district-warns-staff-against-wearing-red-for-ed-shirts/

http://ktar.com/story/2060646/phoenix-area-school-district-warns-staff-against-wearing-red-for-ed-shirts/


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The Arizona movement also faced one other, far less significant, legal obstacle. A man in Cave Creek, Arizona registered the names ‘#RedforEd’ and ‘Arizona Educators United’ with the Arizona Secretary of State in hopes of preventing print shops and other manufacturers from producing goods for the movement.296 Surprisingly, some printing companies did stop producing #RedforEd goods after they were contacted by the man and informed that he had registered the names, however, despite his threats, they resumed printing soon thereafter.297

In Colorado, the teachers’ movement ran into some unique and far more challenging legal problems, which made their struggle especially difficult. This was primarily due to the Taxpayer Bill of Rights, passed by voters in the 1990s.298 It required voters to have the final say on tax increases and it created firm caps on tax revenue, which force the state to refund to the taxpayers any revenue raised above the cap.299 The other legal challenge was local funding control, meaning that in Colorado, even if they redirected money to education from other parts of the state budget, it would still be determined by individual districts how that money was spent.300 Thus, winning an across-the-board teacher pay raise would be especially challenging there. Local control was also an obstacle to guaranteeing teacher raises in Arizona, where the legislature ultimately gave more money to school districts as part of a plan to increase teacher pay, but “district governing boards determined how much its teachers got, and percentages varied widely.”301 Despite these hurdles, protests in Colorado still helped to generate a $150 million increase in K-12 education funding, even though they could not determine how much ended up in teachers’ pockets.302

Labor Demands Against Capital

(additional information and commentary in footnotes)

I. “PART-TIME AMERICA WON’T WORK”: THE 1997 UPS STRIKE BY THE TEAMSTERS

296 Briana Whitney, Cave Creek man registers 'Red for Ed' to try and block movement, AZFamily.com, May 1, 2018. Accessed at https://www.azfamily.com/archives/cave-creek-man-registers-red-for-ed-to-try-and/article_c532ff68-ec05-5aaa-8ce0-badb7766b3b9.html; see also Daarel Burnette II, What is #RedforEd? Behind the Hashtag That's All the Rage in Teacher Strikes, Education Week, May 3, 2018. Accessed at http://blogs.edweek.org/edweek/teacherbeat/2018/05/what_exactly_is_redfored.html. 297 Briana Whitney, Cave Creek man registers 'Red for Ed' to try and block movement, AZFamily.com, May 1, 2018. Accessed at https://www.azfamily.com/archives/cave-creek-man-registers-red-for-ed-to-try-and/article_c532ff68-ec05-5aaa-8ce0-badb7766b3b9.html. 298 Cory Turner, Teacher Walkouts: A State By State Guide, NPR, April 25, 2018. Accessed at https://www.npr.org/sections/ed/2018/04/25/602859780/teacher-walkouts-a-state-by-state-guide. 299 Id. 300 Id. 301 Lily Altavena, Teacher Candidates, Bonds and Overrides: Did #RedforEd Impact Arizona Elections?, Arizona Republic (azcentral.com), Nov. 10, 2018. Accessed at https://www.azcentral.com/story/news/politics/airzona-education/2018/11/09/how-did-redfored-fare-election-results-candidates-school-districts-bond-override-mesa-doug-ducey/1921387002/. 302 Colorado Gov. John Hickenlooper signs $28.9 billion state budget, AP, Apr. 30, 2018. Accessed at https://www.thedenverchannel.com/news/politics/colorado-gov-john-hickenlooper-signs-289-billion-state-budget.

https://www.azfamily.com/archives/cave-creek-man-registers-red-for-ed-to-try-and/article_c532ff68-ec05-5aaa-8ce0-badb7766b3b9.html


http://blogs.edweek.org/edweek/teacherbeat/2018/05/what_exactly_is_redfored.html



https://www.npr.org/sections/ed/2018/04/25/602859780/teacher-walkouts-a-state-by-state-guide




https://www.thedenverchannel.com/news/politics/colorado-gov-john-hickenlooper-signs-289-billion-state-budget


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On August 4, 1997, 185,000 members of the International Brotherhood of Teamsters working for UPS went on strike.303 It lasted 15 days, and was broadly viewed as the biggest labor action and victory in decades.304 Commentators around the country declared it to be a revival of the struggling United States labor movement.305 While the gains in union membership never materialized, the sheer scale and unbridled militancy of the 1997 strike showed the continued importance of striking as one of the most effective tools at labor’s disposal in the fight against capital.306

At the time of the strike, UPS was “the world’s largest package distribution company,” but was beginning to see a loss in market share to non-union companies like FedEx.307 Over the life of the 1993-1997 contract between UPS and IBT, UPS had made over $4 billion in profits, but of the 46,300 jobs created in that time, 83% were part-time jobs starting at $8/hour.308 Previous contract negotiations had been private affairs, and UPS had made extensive use of a CBA provision allowing unlimited use of part-time workers.309

The Teamsters, in contrast, had been undergoing internal upheaval. After the Justice Department began to investigate the union for corruption—and even threatened to put it under government trusteeship—a group of Teamster reformers managed to negotiate instead a consent decree, under which the union would hold the first government-monitored, rank-and-file election in its history.310 In the consent decree, the union and the government agreed to split the cost of monitoring the elections.311 In 1991, a militant reform slate was elected to lead the Teamsters in the first open election the union had ever held.312 Three years later, Ron Carey, the new president, shocked UPS by calling a national strike over UPS’ recent unilateral decision to increase the maximum weight of packages workers had to lift from 70 pounds to 150 pounds.313 UPS got a Temporary Restraining Order prohibiting the strike.,314 and many locals resisted the International. Ultimately, somewhere between 20% and 40% of UPS workers across the country went on strike, in violation of the TRO.315 UPS took IBT to court, but the court sent the dispute to arbitration, first in 1994, and then again in 1998.316 UPS did back down on the change as a result of the strike, making it a victory for

303 http://www.labornotes.org/2017/08/1997-ups-strike-beating-big-business-business-unionism 304 See, e.g., http://www.labornotes.org/2017/08/1997-ups-strike-beating-big-business-business-unionism; see also https://www.jacobinmag.com/2017/08/ups-strike-teamsters-logistics-labor-unions-work; cf. https://www.heritage.org/jobs-and-labor/report/the-ups-strike-labor-tilts-windmills#pgfId=1001944 305 https://www.nytimes.com/1997/09/01/us/gains-put-unions-at-turning-point-many-experts-say.html 306 See generally Burns, Joe. Reviving the Strike: How Working People Can Regain Power and Transform America. (2011). https://libcom.org/files/Reviving%20the%20Strike%20-%20Joe%20Burns.pdf 307 Banks, Andrew and John Russo. The Development of International Campaign-Based Network Structures: A Case Study of the IBT and ITF World Council of UPS Unions. 20 Comp. Law and Pol’y J. 543, 545 (1999). 308 https://www.jacobinmag.com/2017/08/ups-strike-teamsters-logistics-labor-unions-work 309 Banks, Andrew and John Russo. The Development of International Campaign-Based Network Structures: A Case Study of the IBT and ITF World Council of UPS Unions. 20 Comp. Law and Pol’y J. 543, 546 (1999). 310 http://www.labornotes.org/2017/08/1997-ups-strike-beating-big-business-business-unionism and https://www.jacobinmag.com/2017/08/ups-strike-teamsters-logistics-labor-unions-work 311 Lewis, Diane. US Should Pay for Election, Teamsters Argue. WLNR 2386519. 2/24/98 Boston Globe D1. 312 https://www.jacobinmag.com/2017/08/ups-strike-teamsters-logistics-labor-unions-work 313 http://workerscompass.org/lessons-of-the-1997-teamster-strike-at-ups-part-1/ 314 United Parcel Service, Inc. v. International Broth. of Teamsters, AFL-CIO. 859 F.Supp. 590, 593 (D.D.C. 1994) 315 http://workerscompass.org/lessons-of-the-1997-teamster-strike-at-ups-part-1/ cf. https://www.heritage.org/jobs-and-labor/report/the-ups-strike-labor-tilts-windmills#pgfId=1001935 316 United Parcel Service, Inc. v. International Broth. of Teamsters, AFL-CIO. 859 F.Supp. 590 (D.D.C. 1994) and 999 F.Supp. 70 (D.D.C. 1998). The court also held in the ’94 case that LMRA § 502, which states that “quitting of labor…in good faith because of abnormally dangerous conditions...[shall not] be deemed a strike…”, did not

http://www.labornotes.org/2017/08/1997-ups-strike-beating-big-business-business-unionism

https://www.jacobinmag.com/2017/08/ups-strike-teamsters-logistics-labor-unions-work

https://www.heritage.org/jobs-and-labor/report/the-ups-strike-labor-tilts-windmills#pgfId=1001944

https://www.nytimes.com/1997/09/01/us/gains-put-unions-at-turning-point-many-experts-say.html

https://libcom.org/files/Reviving%20the%20Strike%20-%20Joe%20Burns.pdf




http://workerscompass.org/lessons-of-the-1997-teamster-strike-at-ups-part-1/




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IBT. Later in 1994, IBT led a strike in the trucking industry, which was again hampered by leaders at union locals.317 The International set up rank-and-file networks both among the truckers and among other IBT workers, who helped with information distribution, and then with solidarity demonstrations and picket line reinforcements.318 These nascent direct networks set the stage for the 1997 contract strike.

Domestic Organizing Strategy

It is a truism among union staff that communication to the membership is key to building power, and it could always be better.319 The new leadership at IBT recognized this, and made educating members a central strategy in the strike.

Preparation for the strike began in 1996, starting with a national bargaining survey designed to increase participation.320 Building on the trucker strike, IBT expanded their member-to-member communication networks, requiring each steward, staff member, and activist to communicate with at least 20 other members.321 19 rank-and-file members were employed full-time and dispatched to locals to begin a series of escalating actions.322 This number later grew to 40.323 The increased communication was particularly important, as IBT had identified pre-work boss meetings as an extremely effective tool that they had failed to counter effectively in previous campaigns.324 Beyond countering internal intimidation, once the strike began, the media interviews with rank-and-file strikers were notably on-message.325 IBT communications director Matt Witt credited the successful media campaign in part to the fact that workers, rather than union officials, were the voice of the strike, and that voice was echoing worker concerns across the country.326 One striker told the New York Times “These companies all have the formula. They don’t take

create an implied private right of action for lost wages. The implication of this is that workers have to choose between paying the bills and paying medical bills. 317 http://workerscompass.org/lessons-of-the-1997-teamster-strike-at-ups-part-1/ 318 id 319 Indeed, many theories analyzing power structures emphasize this as well: for Marxists, class consciousness is a predicate to action, while for Feminists it is consciousness-raising itself that constitutes action. Both of these, in the workplace context, materialize (or don’t) from the forms of communication organizers employ. 320 https://www.jacobinmag.com/2017/08/ups-strike-teamsters-logistics-labor-unions-work A common tactic employed by unions to increase engagement in advance of contract bargaining, the significance here is the change from closed-door IBT negotiations as done by the old guard to the nation-wide distribution of participatory materials to the rank-and-file. In more democratic unions, the impact of such surveys is likely limited to making workers aware that negotiations are about to begin. 321 https://www.jacobinmag.com/2017/08/ups-strike-teamsters-logistics-labor-unions-work 322 http://www.labornotes.org/2017/08/1997-ups-strike-beating-big-business-business-unionism A significant contrast can be found in SEIU’s Fight for Fifteen campaign and locals’ ULP strikes, in which career organizers and union representatives—who appear to workers to have no personal investment in organizing—are parachuted into workplaces to run actions and even strikes which have a significant number of staff members to bolster numbers. The limitations of this strategy were actually highlighted by the uneven participation in the early stages of the strike, with “old guard”-run locals preferring to rely on union staff for implementation. https://www.jacobinmag.com/2017/08/ups-strike-teamsters-logistics-labor-unions-work 323 https://www.jacobinmag.com/2017/08/ups-strike-teamsters-logistics-labor-unions-work 324 id 325 id 326 id








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you on full time. They don’t pay benefits. Then their profits go through the roof.”327 NYT reporters unabashedly boosted this message, writing that “U.P.S. treats its employees like beasts of burden.”328

The direct communication strategy extended to the public, as well. In the first week of the strike, package-car drivers hit their normal routes on foot to distribute campaign literature and window signs, as well as to heckle the managers attempting to continue deliveries by doing it themselves.329 Up to 2/3 of the public supported the strike, and 75% opposed the president intervening in it,330 leading President Bill Clinton to demur on UPS’ request to invoke his power under the Taft-Hartley Act to halt the strike.331

In Chicago, floating pickets shut down scab deliveries at significant downtown skyscrapers and pulled unionized building staff out to honor the picket lines.332 They also asked building managers not to accept UPS packages.333 Only the IBM building acquiesced.334 While the police charged the picket leader, Richard DeVries, with battery for allegedly pushing a scab, there didn’t appear to be any UPS complaints filed for the secondary picket.335

The effectiveness of other isolated incidents of violence is up for debate. In Miami, one scab was beaten after appearing on the local news to explain why he wasn’t participating in the strike.336 He sued IBT Local 769 for racketeering and civil conspiracy, later settling for an undisclosed amount of money.337 A Boston union official responded to questions about strikers heckling scabs with a dismissive “we certainly don’t stand on the picket line like Gumby.”338 Other incidents of physical assault also occurred, though prosecutions and lawsuits against the IBT were scarce.339

In any case, the picket lines were notable for their integrity. Nearly 100% of UPS workers struck,340 joined by the UPS pilots who were members of a separate union.341 This was a major departure from many

327 https://www.nytimes.com/1997/08/07/opinion/a-workers-rebellion.html 328 id 329 http://www.labornotes.org/2017/08/1997-ups-strike-beating-big-business-business-unionism 330 http://www.labornotes.org/2017/08/1997-ups-strike-beating-big-business-business-unionism 331 https://www.heritage.org/jobs-and-labor/report/the-ups-strike-labor-tilts-windmills#pgfId=1001935 and 332 https://www.jacobinmag.com/2017/08/ups-strike-teamsters-logistics-labor-unions-work 333 McWhinnie, Chuck and Jim Casey, Strikers Block UPS Deliveries. 1997 WLNR 7172425. 8/14/97 Chi. Sun-Times 1. 334 id 335 id. The chairman of Winston & Strawn told the Sun-Times that primary boycotts are okay and secondary boycotts are not, but I couldn’t find any suits filed by UPS or instances of building workers getting disciplined. 336 https://www.nrtw.org/news/union-violence-victim-wins-settlement-against-teamsters-union-0/ 337 id 338 https://www.jacobinmag.com/2017/08/ups-strike-teamsters-logistics-labor-unions-work 339 The Teamsters Hollow Victory…and Their Ham-Fisted Tactics. 1997 WLNR 368363. 8/21/97 Wash. Times (D.C.) A18. 340 http://workerscompass.org/lessons-of-the-1997-teamster-strike-at-ups-part-1/ 341 https://www.jacobinmag.com/2017/08/ups-strike-teamsters-logistics-labor-unions-work This was all the more notable because the pilots were members of their own union specifically because IBT had been so terrible at representing them that their decertification vote was 99% in favor.

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strikes before and since, in which picket lines are porous and last only a few days.342 The power of the UPS strike came from the complete work stoppage, and the attendant massive loss of profits for the company.343 That said, it remains unclear whether national strikes now—20 years of globalization, diversification, and monopolization later—could hit a company as hard as the 1997 strike did.344

International Organizing Strategy

Significantly, IBT successfully implemented an international campaign, complete with strikes and boycotts.345 The campaign was organized with significant help from the international trade secretariat, International Transport Workers Federation.346 While the hoped-for continuation of a multinational, coordinated resistance to increasingly free-flowing capital never materialized, it is worth looking at the tactics IBT and ITF used to bring what was the U.S.’s fifth largest private employer to its knees.

It is worth knowing some background financial information. While business was booming for UPS in the United States, it was falling behind other carriers in the European and Asian markets.347 It lost $1.1 billion on international operations in four years.348 UPS’ strategy for recouping that in Europe was to roll out guaranteed next-day early delivery, a service other companies weren’t providing.349 This allowed them to secure large contracts with companies like Mercedes Benz.350

The work began as an informal convening of IBT officials with officials from unions that represented UPS workers in Europe.351 From there, they decided to cement their relationships formally, by creating the ITF World Council.352 Unions targeting UPS workplaces for unionization in various countries, both in Europe and the Global South, joined as well.353 The members of the World Council recognized that, with IBT representing 2/3 of UPS workers worldwide, the outcome of this strike would affect all of them.354 The World Council planned a World Action Day, which caused fear at UPS and among their customers that the on-demand deliveries could come to a screeching halt.355

342 http://workerscompass.org/lessons-of-the-1997-teamster-strike-at-ups-part-1/; see also Burns, Reviving the Strike 343 See generally https://jacobinmag.com/2011/12/strike-occupy-verizon-joe-burns-labor-unions 344 See Banks, Andrew and John Russo. 20 Comp. Law and Pol’y J. 562 (1999). 345 See Banks, Andrew and John Russo. 20 Comp. Law and Pol’y J. 543 (1999). 346 Id. Footnote 1of Banks’ and Russo’s article contains some basic international trade secretariat (ITS) history. In short, they began as industrial organizing entities, became political organizations during the Cold War, and since 1992 have tried to revert back to “building cross-border labor power within their designated industries.” 347 Id at 548 348 id 349 id 350 id 351 id at 547 352 id 353 Id at 548 354 Id at 549 355 id


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The World Council began a series of initiatives to raise their profile and demonstrate real organization. Representatives from the U.S. went to facilities attempting to organize in Europe, while Europeans came to the U.S. to speak to IBT members.356 In Italy, a UPS shop steward was fired, and the World Council organized a world-wide letter writing and fax campaign.357 When the World Action Day came, not only were there demonstrations in 150 locations, but facilities in Spain and Italy had short work stoppages.358 IBT then brought leaders from the World Council to a bargaining session to demonstrate the breadth of their organizing.359

Further forms of institutionalization before the strike had varying degrees of efficacy. On the one hand, many were symbolic. Each affiliate committed to writing a letter in support of IBT in their negotiations, a top-level show of support that is unlikely to influence UPS decision makers, unless there was some real reason for UPS to preserve goodwill with the unions.360 The World Council decided to “…develop an action program in support of an international dialogue with UPS on questions such as job security, part-time employment and subcontracting.”361 It also developed a code of conduct for the package industry that ITF was tasked with monitoring.362

On the other hand, the World Council developed new forms of communication between UPS workers around the world. They designated “Internet Stewards” in each country who could read and write in English, exchange bulletins, and translate bulletins from other countries into native languages for distribution at UPS worksites.363 IBT also took the lead on a monthly multi-country bulletin to highlight the most significant actions around the world.364 The unions made commitments to follow UPS into new countries when it relocated from unionized areas, and to look at expanding beyond UPS.365 Members of the World Council made arrangements to help organize a call center in Ireland staffed by foreign nationals by sending organizers from their home countries.366

The World Council’s media campaign began before the strike began. Large unions and federations that represented workers at UPS hubs and at major UPS customers in Europe announced their public support.367 Public sector unions publicly asked the customs officers and labor inspectors they represented to give extra scrutiny to UPS packages and workplaces during the strike.368 All of this was intended to be a major threat

356 Id at 550 357 Id at 550 358 Id 359 Id at 550-51 360 Id at 552. Given the verbal abuse UPS doled out, which was noted in every article about the strike, goodwill did not appear to be a concern. In any case, this is somewhat antithetical to the whole reason Ron Carey was elected to president of IBT—he was promoting a confrontation with UPS because previous collaborative negotiations kept resulting in union concessions. 361 Id 362 Id 363 Id 364 Id at 553 365 Id. This could arguably be a less-effective form of institutionalization, because it is an agreement to do something they may already have been doing. 366 Id at 553-54 367 Id at 555 368 Id at 556


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to the operations in Europe that UPS had spent so heavily to build up.369 The World Council distributed a leaflet entitled “UPS: Importing Misery from America,” highlighting for European workers not just solidarity, but the self-interest behind supporting the U.S. strike.370

Self-interest appears to have played a role in which countries were more active in their support. Sympathy strikes are illegal in Britain, so workers there agreed to organize sick-outs, but they never happened before the strike ended.371 In contrast, a distribution center in Brussels had been plagued with safety issues, so they did a wildcat strike.372 UPS was determined to end any wildcat strikes immediately, so it agreed to the Belgian union demands.373 In Germany, UPS had always aggressively fought union efforts.374 The union hoped that showing support for IBT would increase union support at the German facilities, so it organized leafletting and demonstrations, and its executive board voted to endorse a sympathy strike regardless of its legality.375 The unions in Holland and France also endorsed sympathy strikes regardless of their legality.376 None of the strikes happened before IBT and UPS reached a tentative agreement, but the willingness to strike in support of IBT demonstrated just how much European workers feared the increasing importation of U.S. labor practices.377

After the strike, European unions invited IBT representatives to speak in their countries and began looking at pursuing other small package companies.378 The World Council, however, struggled to continue functioning. IBT was in a disastrous financial situation after the strike and wasn’t able to keep financially supporting the World Council.379 In fact, the World Council doesn’t appear to exist any longer, replaced with more general statements of solidarity and individual interactions between the Teamsters and specific foreign unions.380

Legal Issues and Questions

The British union representing UPS workers didn’t want to strike because British law doesn’t allow sympathy strikes.381 The hesitation from the German union was based on the requirement by German law that strikes be conducted for the purpose of collective bargaining.382 It would be interesting to learn how 369 Id at 555 370 Id at 556 371 Id at 558 372 Id 373 Id 374 Id at 559 375 Id 376 Id at 560 377 Id at 561 378 Id at 562 379 From 1992 to 1997, the IBT net worth went from $150 million to $11 million. $60 million of this was due to the consent decree. 380 https://teamster.org/global-partnering-other-unions 381 https://www.gov.uk/industrial-action-strikes/your-employment-rights-during-industrial-action 382 Westfall, David and Gregor Thusing. Strikes and Lockouts in Germany and Under Federal Legislation in the United States: a Comparative Analysis. 22 B.C. Int’l & Comp. L. Rev. 29 (1999). This is an interesting requirement, because, at least if it were a U.S. law, a judge’s interpretation determines whether it is stricter or more lenient than current U.S. strike laws.

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IBT convinced unions in other countries to risk serious sanctions for engaging in sympathy strikes. As multinational corporations continue to expand, how might U.S. strike law come into conflict with laws in other countries, and how might the laws in other countries facilitate or impede coordinated, international worker action?383

The strike renewed some discussion in the GOP of passing the “Freedom from Union Violence Act,”384 which would put “union violence” under the Hobbs Act.385 Conservative commentators were upset that violence allegedly committed by union members during the strike didn’t lead to sanctions against the union itself.386 The bill has been introduced a number of times since, but proponents generally base their arguments on a single faulty and over-inclusive study from the National Institute for Labor Relations Research,387 an anti-union research organization. What this highlights is whether labor organizations should be liable for actions taken by members during a strike, and the potentially extensive damage that could cause to the union and other union members.

The World Council publicly requested its government inspector members subject UPS to greater regulatory scrutiny.388 Similar to the question of violence, to what extent would this suggestion that members take individual action currently result in sanctions for a U.S. union? What can be done legally to make sure unions continue to have the ability to communicate in this way with their members?

The Teamsters did an incredible job holding the picket lines. As stated supra, nearly 100% of workers struck. When fewer are willing to honor the picket line, or when scabs are a realistic option for the employer, however, the strike loses its power and collective bargaining becomes “collective begging.”389 Because 100% engagement is so rare, it’s no wonder that strikes like the 1997 UPS strike don’t happen very often. How can the law loosen restrictions on what union members can do to preserve picket line integrity?

After the strike, Ron Carey was charged with election fraud and, after he was forced out, sued by IBT.390 Commentators on the Left believe this was retribution for the strike.391 Regardless of whether it was

383 As a side-note, IBT does bargain for sympathy strike contract provisions. http://labornotes.org/2011/11/teamsters-spread-sympathy-strikes What do they give up in other benefits and rights to preserve what seems like a common-sense way of flexing worker power? 384 S. 230 (105th) 385 The Hobbs Act provides for a fine of up to $100,000 and/or 20 years imprisonment for committing or threatening use of violence to obstruct interstate commerce. So-called “union violence” is not covered because of United States v. Enmons. 410 U.S. 396 (1973). 386 See “The Teamsters Hollow Victory…and Their Ham-Fisted Tactics.” 1997 WLNR 368363. 8/21/97 Wash. Times (D.C.) A18; see also Feder, Don The Sorry State of Union Violence. 1997 WLNR 271641. 9/1/97 Boston Herald 23. 387 See Getman, Julius and F. Ray Marshall. The Continuing Assault on the Right to Strike. 79 Tex. L. Rev. 703 (2001). 388 See Banks, Andrew and John Russo. 20 Comp. Law and Pol’y J. 556 (1999). 389 See Estreicher, Samuel. Collective Bargaining or “Collective Begging”: Reflections on Anti-Strikebreaker Legislation. 93 Mich. L. Rev. 577 (1994). 390 See, e.g., United States v. Carey. 152 F.Supp.2d 415 (2001); see also, e.g., International Broth. of Teamsters v. Carey, 163 F.Supp.2d 271 (S.D.N.Y. 2001). 391 See, e.g., https://www.jacobinmag.com/2017/08/ups-strike-teamsters-logistics-labor-unions-work

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legitimate or not, how can strikers legally or organizationally protect themselves from the equivalent of SLAPP lawsuits?

The Taft-Hartley Act allows the president to end a strike if it threatens the economy. The UPS strike interrupted 83% of ground deliveries and may have affected 5% of gross national output,392 and Clinton only refused to invoke his powers because of how popular the strike was.393 The point of a strike is precisely to create economic loss for capital. Should there be any restrictions on striking, especially government intervention? How are they or should they be enforced?

The floating picket lines to Chicago landmark buildings were legal “ambulatory” picket lines. The NLRA allows workers to picket the primary employer wherever the primary is doing business. Hence, it is lawful for a striking union to picket both the employer’s factory and administrative offices, even if these are two separate locations. In the transportation industry, the concept of ambulatory picketing allows a union to follow the employer’s trucks to secondary, customer sites and picket at those customer sites for as long as the employer is present doing business at the customer, so long as the union makes clear that its picket is aimed only at the primary and not at the secondary employer. In Sailors Union of the Pacific (Moore Dry Dock Co.), 92 N.L.R.B. 547 (1950), the Board outlined steps which unions are required to take to assure their ambulatory picket lines are lawful. While ambulatory pickets can work well if the employer is a transportation company, they nonetheless constitute a very narrow exception to the prohibition against picketing secondary employers. Pickets are limited to the time the primary employer is on-site and the union is still forbidden from putting direct pressure on the secondary. Shouldn’t workers be allowed to seek solidarity anywhere?

Other Questions

The amount of international solidarity is stunning. Banks and Russo suggest it was due to “enlightened self-interest,” through which European workers understood that fighting UPS in the U.S. struggle would help them down the line in their own fight against “importing misery from America.” This reflects an Alinsky-esque view of organizing based on self-interest, which may preclude solidarity as a motivating factor. If this is the case, why should foreign unions ever interact with or support U.S. unions, when it seems that U.S. workers can’t or won’t reciprocate?394

How do recent international demonstrations compare in their effectiveness to those organized in 1997? Do they rely too much on the media coverage aspect? Did the media coverage in 1997 mean anything in-and-of-itself, or was it specifically the message the unions were sending—your business will shut down—that made the media coverage significant?

392 https://www.heritage.org/jobs-and-labor/report/the-ups-strike-labor-tilts-windmills#pgfId=1001944 393 http://www.labornotes.org/2017/08/1997-ups-strike-beating-big-business-business-unionism 394 See, e.g., the ongoing Driscoll’s boycott, which began in 2015.




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Alternatively, they suggest that European-style industrial unionism promotes broader solidarity within industries because the “law permits the extension of benefits from other negotiations.”395 Is international solidarity within industries possible without contractual benefits? Should worker movements organize for contracts, or towards other goals?

The 1997 strike highlighted the reach and economic significance of international logistics companies. It seems that organizing companies like Amazon and FedEx would similarly touch millions of lives in dozens of countries. Are unions best equipped for this undertaking? How could organizing mirror the new corporate model of “centralized decentralization”? Should it?

The World Council centralized organizing efforts in Europe, but would the same sort of organization work today, when national identities are retrenching and international governmental organizations are viewed as more suspect? Would such an organization be necessary given widespread access to the internet and other forms of international communication?

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8. Selected bibliography

Mark Barenberg, Widening the Scope of Worker Organizing, http://rooseveltinstitute.org/wp-content/uploads/2015/10/Widening-the-Scope-of-Worker-Organizing.pdf (2015).

Craig Becker, Better Than a Strike: Protecting New Forms of Collective Work Stoppages Under the National Labor Relations Act, 61 U. Chi. L. Rev. 351 (1994).

Jeremy Brecher, Strike! (1997)

Christopher L. Erickson et al., Unions and Low-Wage Immigrant Workers: Lessons from the Justice for Janitors Campaign in Los Angeles, 1990-2002, available at https://escholarship.org/content/qt6ch053x1/qt6ch053x1.pdf

Erik Loomis, A History of America in Ten Strikes (2018).

Susan L. Marquis, I Am Not a Tractor! How Florida Farmworkers Took on the Fast Food Giants and Won (2017)

Michael M. Oswalt, The Content of Coercion, 52 Davis L. Rev. – (forthcoming 2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3146952 (discussing the role of coercion in labor law, and arguing that decision makers should consider research findings that link coercion to fear and control in deciding whether employees or employers have been coerced).

Michael M. Oswalt, Improvisational Unionism, 104 Cal. L. Rev. 597 (2016).

Michael M. Oswalt, The Right to Improvise in Low-Wage Work, 38 Cardozo L. Rev. 959 (2017).

David Webber, THE RISE OF THE WORKING CLASS SHAREHOLDER (2018)

395 Banks and Russo at 557 (1999).

http://rooseveltinstitute.org/wp-content/uploads/2015/10/Widening-the-Scope-of-Worker-Organizing.pdf

http://rooseveltinstitute.org/wp-content/uploads/2015/10/Widening-the-Scope-of-Worker-Organizing.pdf