Issue link: https://digital.copcomm.com/i/1151081
14 CINEMONTAGE / Q3 2019 GET TING ORGANIZED In 1935, when the NLRA was first passed, pragmatism may have shaped lawmakers' choice to ground their legislation upon narrow concerns of commercial efficiency rather than profound principles of inherent rights, but that choice has helped to shape 84 years of jurisprudence that is hostile to workers. In "Labor's Bill of Rights," a 2017 report for the Century Foundation, Shaun Richman, the Program Director of the Harry Van Arsdale, Jr. Center for Labor Studies at SUNY Empire State College, writes that the decision to ground the NLRA in the Commerce Clause "has the perverse effect of judging worker rights — which are human rights concerns — within the frame of impact on business to the exclusion of free speech and other considerations… [I]n such a framework, the courts will tend to have more sympathy for business interests." The NLRB's lawyers make this framework — and its implications — explicit in their case against Scabby. A brief filed in the Philadelphia case by one of Robb's underlings contains a section titled "The Government Is Justified in Restraining Certain Speech to Protect the Free Flow of Commerce." She writes therein: "Given the [NLRA]'s purpose to protect the free flow of interstate commerce, there is an inherent recognition that the speech and conduct of both employers and unions that the Act regulates constitutes [sic] the type of commercial speech that is entitled to lesser constitutional protections." By categorizing what unions do as "commercial speech" (akin to advertising), Robb and company seek to deny unions robust First Amendment protection. Your right to swing your arms ends just where someone else's nose begins, and your right to a rat-shaped balloon ends just where it potentially impedes interstate commerce. Richman and others have argued that labor should reject this legal framework within which our rights have been boxed and make a strategic decision to challenge management-friendly labor laws and regulations on constitutional grounds. Perhaps the NLRB's prosecution of Scabby will invite just such a challenge, one that could even call into question the longstanding prohibition on secondary boycotts and picketing. As a phoenix rises from its own ashes, perhaps labor's speech rights will ultimately rise up from the rubbery heap of a deflated rat. Perhaps, but let's not hold our breath as the air hisses out of our oversized friend. Over the course of our time together on the picket line, I developed a soft spot for the big lunk but, in truth, it wasn't Scabby that won the Shahs strike for us. And I feel passionately about the freedom of speech, but I know that neither symbols nor words contain the true source of our strength. We won the fight for Shahs just like we win every other victory: through the commitment co- workers make to stick together and through the resolve of the broader community that coalesces to support them. Ryan Seacrest Productions ultimately capitulated and brought its editorial crew back to work under a union contract because talented artists and craftspeople had proven that they would stand together, and that the company couldn't make their product without our members' skills. Notwithstanding the contentions of a bunch of anti-union lawyers in the NLRB or anywhere else, the messages to which unions give voice aren't "commercial speech"; they're fighting words. As more folks come to recognize which side they're on in such fights, we will prevail, whatever the law might have to say about our balloon buddies. f CONTINUED FROM PAGE 12 The East Coast Scabby outside of 30 Rockefeller Plaza in New York. Photo by Paul Moore