Walker and his political allies can no longer impose on the people. By March of 2011, the so-called “Budget Repair Bill” is widely recognized for what it really is—an unprecedented power grab by an unprincipled governor, his Republican hatchet men in the state legislature, and his corporate cronies.

By virtue of our 14 Democratic state senators absenting themselves from our state, the citizens of Wisconsin have had the time to become informed about what the bill would mean for us. Denounced by workers and a majority of all our citizens, the bill would remove almost all collective bargaining rights for the majority of public sector workers in the state, allow for extensive changes to the state medical assistance program without public input and with almost no legislative oversight, and allow for no-bid sales of state-owned power plants by the Department of Administration with no oversight by the Public Service Commission or the legislature. The main provisions of the bill are summarized below.

Consequences for Collective Bargaining Rights of Public Sector Workers

• A virtual end to the right to bargain collectively for all public-sector workers except public safety employees (police and fire)

State employees and employees of local government units (including school districts) could only bargain collectively on total base wages. Bargaining on any other compensation, any benefits (such as health insurance, pensions, and paid leave), or any working conditions (such as hours of work, safety issues, and grievance and arbitration procedures) would be prohibited. “Just cause” grievances, only in cases of discharge, suspension, and demotion, would be covered by much weaker statutory provisions, which also cover fewer workers.

• Complete elimination of all collective bargaining rights for UW System faculty and academic staff, child care providers, employees of the UW Hospitals and Clinics, and home care providers

• A requirement that the Wisconsin Employment Relations Commission (WERC) hold an annual certification election for each union that represents a collective bargaining unit of public sector workers, except public safety employees

At least 51% of the workers in a collective bargaining unit would have to vote for certification each year, in order to be represented by a union. Failure to certify would result in a mandated 12-month wait before the next certification election. WERC would be required to assess and collect a fee for each annual certification election.

• A requirement that collective bargaining agreements be limited to one year in length, except for those covering public safety employees

• An elimination of “fair share agreements” for all but public safety employees

Employees in a collective bargaining unit would not be required to pay their proportionate share of the cost of the collective bargaining process and contract administration.

A prohibition of the deduction of union dues by the state and local government units, from the earnings of workers, except for public safety employees

Unions would have to collect dues from their members directly.

• A termination of all collective bargaining agreements that have been extended, as soon as legally possible, except for public safety employees

Direct Economic Consequences for Public Sector Workers

• A requirement that all public sector workers pay half of their contributions to the Wisconsin Retirement System (WRS)

Most public employers currently pay both the employer share and the employee share into the WRS, a consequence of past collective bargaining in which employers agreed to increased contributions to the WRS, in exchange for smaller pay increases or no pay increases for employees.

• A ban on the participation of limited term employees (LTE’s) in the WRS and the associated health insurance benefits

• A substantial increase in the cost of health insurance for most workers

The bill includes specific amounts to be paid by state workers for the remainder of 2011 and requires that, in future years, the amount paid by public employers be not more than 88% of the plan with the lowest premium cost.

• A provision that $28 million be taken from WRS reserve accounts to reduce employer costs for providing group health insurance for the last six months of 2011.

Former Wisconsin Governor Tommy Thompson raided the Employee Trust Funds in the nineties, was sued successfully, and had to repay the funds with interest. A legal challenge to this provision is certain.

Other Consequences

• An increase in the number of unclassified division administrator positions by 35 positions

These positions would be politicized, effectively curtailing the independent regulatory function of state agencies.

• A repeal of a provision that contracts for services be reviewed, under conditions established by Department of Administration rule, in order to ensure that agencies properly utilize the services of state employees, evaluate the feasibility of using LTE’s prior to entering into a contract, and do not enter into any contract in conflict with any collective bargaining agreement

This provision substantially increases the power of the administrative branch to enter into service contracts with few or no checks and balances in place.

• Provisions that substantial changes to the State’s medical assistance programs may be made with almost no legislative oversight, without public input, and without a full vote of the legislature

These provisions would result in huge cuts to programs that provide health care to Wisconsin’s most vulnerable citizens.

• A provision for the no-bid sale of state-owned power plants to anyone for any price, with almost no legislative oversight

This provision disregards Wisconsin’s longstanding tradition of evaluating bids to determine the most fiscally responsible course of action.

1. What can employees do to protest SS. SB11 within the scope of protected, concerted activity and constitutionally-protected activity without crossing the line into activity that may have disciplinary consequences in the workplace or subject them to criminal charges or civil forfeitures; and

2. What can labor organizations do to assist and encourage their employees to engage in objecting to or protesting SS. SB11 without risking liability for inducing or encouraging their members to commit a ULP or risking union liability for criminal conspiracy.

This memo attempts to draw the lines for both individual and labor organizations. Labor unions must avoid giving any explicit or implicit direction to an employee to take actions that would amount to a violation of the law. Each employee must be guided by his or her own conscience in deciding what he/she should do in petitioning the government for redress. In that vein, some persons (including some union representatives) have decided that they are willing to risk civil disobedience, including the criminal charges and/or civil forfeitures that may accompany such disobedience (e.g., disorderly conduct charges), and have been arrested as a result.

I. RIGHT TO STRIKE/PICKET/HANDBILL

SCFL’s affiliates include both private sector and public sector labor organizations. Even some public sector labor unions include locals made up entirely of private sector employees.

1. Private Sector Strikes and Related Activity

Strikes and picketing are protected by the NLRA as long as they are lawful, a determination that may depend on the purpose of the strike, its timing, or the conduct of the strikers. Such issues often have to be decided by the NLRB. The consequences can be severe. For example, employees who participate in an unlawful strike may be fired and are not entitled to reinstatement.

A. Lawful strikes fall into two classes:

i. Economic Strikes

If the object of a strike is to obtain higher wages, shorter hours, or better working conditions, the striking employees are called "economic strikers". They cannot be discharged, but they can be replaced. If the employer has hired bona fide permanent replacements, the strikers are not entitled to immediate reinstatement if they offer unconditionally to return to work. In that case, they are entitled to be recalled to jobs when openings occur.

ii. ULP Strikes

Employees who strike to protest an unfair labor practice committed by their employer are called "unfair labor practice strikers". Such strikers can be neither discharged nor permanently replaced. When the strike ends, unfair labor practice strikers, absent serious misconduct on their part, are entitled to have their jobs back even if employees hired to do their work have to be discharged. Unfair labor practice strikers have greater rights of reinstatement to their jobs.
If the NLRB finds that economic strikers or unfair labor practice strikers who have made an unconditional request for reinstatement have been unlawfully denied reinstatement by their employer, the Board may award such strikers back pay starting at the time they should have been reinstated.

Neither the introduction nor passage of either the budget repair bill or the budget bill creates a circumstance under which a local union could claim a lawful strike on either an economic or ULP basis, since the actions to which the activity is directed is not that of the employer, but rather is that of the State.

B. Picketing

Picketing can also be lawful or unlawful depending on its purpose, its timing, or misconduct. For example, a union cannot "threaten, coerce, or restrain" an employer to force it to stop doing business with another employer who is the primary target of a labor dispute. At worksites with more than one employer, such as a construction site, picketing is only permitted if the protest is clearly directed exclusively at the primary employer.

C. Hand-billing

Hand-billing is allowed as long as it is "for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer." A recent Board decision found that holding a stationary banner in place at a secondary employer's place of business is more like hand-billing than picketing, and so is generally lawful.

2. Public Sector Strikes and Related Activity

A. State Employees.

Persons in bargaining units covered by SELRA (represented employees of the State) are categorically prohibited from striking by SELRA.

B. County, Municipal Employees and School District Employees.

While MERA affords a Wisconsin municipal employer the theoretical right to enter into a Collective Bargaining Agreement that allows strike activity, no municipal employer has in fact entered into such an agreement. Thus, in fact, employees in bargaining units covered by MERA are also prohibited from striking.

II. CONSTITUTIONAL RIGHTS.

Article I, Section IV, of the Wisconsin Constitution provides: “The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged.” Employees, whether private or public sector, have the right under the Wisconsin Constitution to engage in free speech activity on public premises. This extends to picketing and hand billing on premises such as the steps and sidewalks outside courthouses and other public buildings. I have not had sufficient time to research whether public officials may restrict such activities inside public buildings, but where such activities interfere with the carrying out of business therein, it is likely that the government may impose such restrictions in the least restrictive matter necessary to permit such government business. These arguments are currently playing themselves out in the litigation related to the closing of the State Capitol building.

Because a private sector employer is, by definition, not the government, such an employer could only very rarely run afoul of the Constitution by its actions (i.e., only when acting in a capacity that amounts to a de facto agent of the government). The State, a county, a municipality or a school district is, however, prohibited (including when acting as an employer) from taking action against an individual who petitions the government through actions or words (written or spoken). Even public employers, though, are permitted to enforce reasonable work rules and policies that limit actions and speech if those rules are applied equally to non-political speech. Thus, an employer who prohibits the posting of all materials on walls or cubicles, or the wearing of any buttons on clothing, can probably legally prohibit an employee’s display of any political buttons or signs in the workplace. However, if a public employer were to adopt such rules, for the first time, after employees began to engage in expressions that attack the budget bill or proposed budget, then a strong argument could be made that such restrictions are directed at the content of the speech and are, therefore, unconstitutional.

III. CIVIL DISOBEDIENCE

Expressive actions and speech may be subject to challenge by law enforcement authorities. This happens most commonly where a public official concludes that “protesters” are a threat to persons or property, are in a “restricted” area, or have remained in an area after “regular” or “business” hours. In such situations, law enforcement officers may ask our members to leave the premises or cease certain activities. In such situations, there may be legitimate questions whether the officers are violating the constitutional rights of the employees, but, in the first instance, the officers as a practical matter have the power (whether legal or not) to remove persons who will not comply with their orders.

Where an individual fails to comply with a law enforcement officer’s directive to vacate property or to cease certain activities, the person is subject to citation for municipal or county ordinance violation (similar to a traffic citation, but possibly more expensive), or potentially, depending on the nature of the individual’s conduct, to criminal charges. The extent to which an individual complies with a law enforcement officer’s commands in “civil disobedience” situations may well have an impact on any charging decisions by a city attorney’s or district attorney’s office.

It is important that union locals not become involved in suggesting or directing that their members engage in conduct that could later be deemed criminal, because there is a potential for the local itself to then be charged as a party to a criminal conspiracy.Local labor unions should consult with their respective labor attorneys to address specific actions that they may contemplate taking to object to the Budget Repair Bill.

IV. OTHER EXPRESSIONS OF SOLIDARITY

Company work rules often impose on employees the obligation to do certain tasks that give rise to the opportunity for expressions of employee solidarity, when all employees choose to abide by the “letter of the law” in carrying out such tasks. For example, an employer may require that employees perform certain safety check-offs with respect to their tools or equipment, which employees routinely ignore or only partially complete. However, when employees make the collective decision to conscientiously perform such tasks on a daily basis – or engage in other demonstrations of solidarity within the terms of their labor agreement – such a decision may well have the effect of sending to the employer an implicit message from employees, without presenting a substantial risk of harm to employees.

Although you may not have heard about them, general strikes have played an important role in American labor history. They have carved out key turning points, marking the emergence of a new kind of organization, a breakthrough in contesting political power, a new level of class consciousness, setting a tone for years of struggle to come. Legal or not, sanctioned or not, praised or demonized by the media, dramatized or ignored by history books, these strikes have been central to our history.

What are general strikes? A general strike has usually involved workers from a broad range of occupations and industries, though with some geographic focus, such as a city or a state. While unionized workers have typically been at the core of general strikes, non-union workers, families, neighbors, students, and the unemployed have often joined in. These strikes have often started with economic demands, but they tend to move quickly to issues of procedure, rights, and justice. They might have begun as a solidarity/support action on behalf of a particular group of workers, but, in response to the behaviors of the authorities (repression by the police or militia, the recruitment of strikebreakers by employers, public disrespect by government officials), other unions, workers, and community organizations have extended the issues and demands of the strike to their own situations. That is, these strikes are about solidarity and self-expression at the same time. Above all, they are about power.

A general strike has usually included enough participants to shut down most production, transportation, and even government functions. Once they have shut down most business, general strikes have put workers and their organizations in the position of having to decide how to “manage” society – which services should continue, how their delivery should be structured, who should receive these services, etc. This “management” has necessitated the creation of new kinds of labor organizations, linking the economic and the political, creating a more direct voice than usual for rank-and-file members, as well as a voice for service recipients, consumers, and citizens. In short, general strikes are not only expressions of class power, but they can call into existence new vehicles of class power.

What circumstances have set the stage for general strikes? Periods of economic difficulty have often provided the context for general strikes. Employers push wage cuts onto one group of workers, with intentions to generalize them to the next, and the next. The situation embodies that old maxim, tweaked by Anne Feeney: “United we bargain, divided we beg.” At key points, employers might challenge the very existence of workers’ organizations, determined to have the power to unilaterally impose new wage levels, work rules, job descriptions, even a new organization of work.

When employers have found workers mobilizing resistance, they have turned to the government for assistance – the enforcement of laws which restrict picketing, an increased police presence to protect strikebreakers, the criminalization of protest, and the outright repression of labor organizations. In these situations, workers talk more and more in terms of their “rights” and they raise questions about “democracy” and “justice.” Such circumstances have given birth to general strikes.

What have been the outcomes of general strikes? Few general strikes have succeeded in winning all of their articulated demands. Through these struggles, a wage cut has been restored, union recognition and collective bargaining have been won or preserved, and even a reduction in work hours has been realized. But such tangible victories have been difficult to achieve. In part, the circumstances which have set the stage for general strikes have been so severe that the other side has had a lot at stake, and has, therefore, been willing to put substantial resources into play. From the working class’s perspective, it has been the intangible gains which have been the most important. General strikes have been the birthplace of new labor organizations, new social and political movements, even new levels of consciousness, and they have provided the necessary foundation for new stages in working class advancement that were to come.

General strikes in U.S. history. Some highlights. Looking over our history, it is clear that there have been two kinds of situations which have given rise to general strikes: (1) depressions, in which employers seek to place the burden of hard times on workers; (2) post-war periods, in which employers seek to take back the gains that workers have made. You can find terrific accounts of some of these struggles in Jeremy Brecher, Strike! (South End Press, 1997) and George Lipsitz, Rainbow at Midnight: Labor and Culture in the 1940s (University of Illinois Press, 1994, especially Part Two: “Reconversion and General Strikes, 1945-1946”). One of the most interesting features of general strikes has been the extent to which, although they usually start out as “defensive,” as resistance to employer/government pressure on workers, they turn “offensive,” with workers seeking to improve their work and living situations, to expand their power, and to imagine a better world.

There were major general strikes in the last quarter of the 19th century –

(1) The “Great Upheaval” in the summer of 1877, when railroad workers’ strikes against wage cuts spread from the east coast to Chicago and St. Louis, and entire communities joined in, challenging the power not only of railroads, but also of banks and manufacturing corporations and, ultimately, local and state governments. Only the force of federal troops, pulled out of the South at the end of Reconstruction, was able to defeat this series of general strikes.

(2) The May Day struggles of 1886, in which workers, skilled and unskilled, immigrant and native born, union and non-union, struck for a uniform 8 Hour Day for all workers. It was in this struggle that thousands of unskilled Polish steel mill laborers in Milwaukee joined with building trades and railroad workers to shut virtually every factory in the city. The Wisconsin militia, ordered by the governor to shoot, killed seven strikers on May 5, 1886. Elsewhere in the country, armed force was also used against strikers.

(3) The Pullman “Boycott” of 1894, in which on-the-road railroad workers provided solidarity for the shop workers who built sleeping cars. As in 1877 and 1886, the struggles of some workers inspired others to provide solidarity and join in the struggle (against wage cuts, against the corporate power manifested in company towns). Only the first ever federal injunction against a strike and lengthy prison sentences broke this strike, and, even then, it took weeks and months to do so.

And there were major general strikes in the 20th century –

(1) The Seattle General Strike in January 1919. In the wake of World War I, as the economy slowed down, employers sought to break the power and undermine the standards that unionized workers had gained during the war. In Seattle, they began with the shipyards workers. But, organized as the Metal Trades Council, these 35,000 workers gained the support of workers throughout the city, leading to a general strike. Some 60,000 workers left their jobs, organized through the Central Labor Union, and began to manage the city, from traffic flows to hospital deliveries, under their own control. In the aftermath of the strike, unions organized producers’ and consumer cooperatives which would last throughout the 1920s.

(2) The Minneapolis, San Francisco, and Toledo general strikes of 1934. In the midst of the Great Depression, workers in particular industries began to organize, using new forms, such as industrial unions, and new tactics, such as sitdown strikes and roving pickets. When employers dug in against them and pressured local governments to mobilize the police to break strikes, workers of all sorts, unemployed as well as employed, offered solidarity to the strikers and, quickly, began to organize themselves into new unions. Not only did most of the strikers win their immediate battles and gain union recognition, but the militancy they manifested pushed Congress to pass the National Labor Relations Act in 1935, providing a peaceful path to union recognition, with worker access to collective bargaining.

(3) In 1945-1946, the United States was wracked with strikes – industrywide strikes in auto, steel, meatpacking, coal mining, where workers and their unions fought to maintain the price controls of the wartime economy, and citywide strikes in Stamford, Connecticut, Lancaster, Pennsylvania, Rochester, NY, Pittsburgh, Houston, and Oakland, where workers, unions, and community organizations fought to protect workers’ rights to organize, collectively bargain, and, through politics, have an independent voice in their cities. Unions, with the support of community organizations, shut down not only manufacturing production and transportation, but also brought government activities to a halt. These struggles were ultimately defeated by red-baiting, the use of police and National Guard, and the offering of raises to some of the workers involved. Most importantly, employers and their government allies responded with the passage of the Taft-Hartley Act in 1947, which outlawed two key expressions of solidarity, the sympathy strike and the secondary boycott. In its wake, the labor movement slid into a period of prolonged decline.

Of course, the story does not end here. Workers in other countries have often used the general strike to advance our interests. In Ontario, Canada in the mid-1990’s workers fought back against government attacks very similar to those we are now facing in Wisconsin. Workers have a rich history of standing together when assaults upon their futures are most severe. With clear and specific demands, workers have been able to achieve those goals. The Walker administration’s assault on the Wisconsin that our grandparents, parents, and we have made shapes the fight we have ahead of us – for not only those who have come and fought before us but for those generations of us to come; for our kids and for our kid’s kids. Judging by the over 300,000 people who have been in the streets over the last three weeks, it is that rich “living history” in Wisconsin that those forces opposing us have underestimated.

The following is a detailed outline of “how to” considerations and lessons from the mass actions that occurred in Ontario, Canada in the mid-1990’s.

ORGANIZING A GENERAL STRIKE

The organization of the Days of Action shut down one city after another in Ontario in 1996, 1997, and 1998. What does it take to organize such a massive movement? Clearly, a citywide general strike requires hundreds of people prepared to take responsibility for organizing thousands of others to carry out the strike and the related marches and demonstrations. Almost nothing in such an undertaking can be left to chance. The list below barely begins to convey the many varied elements involved in such a strike:

• A sense of crisis and urgency: The Days of Action were precipitated by a political crisis, a frontal attack on unions and the poor by a Conservative government. It was important that unions and many social movements and community organizations perceived that they were under an unusually fierce attack that required an extraordinary response.

• The support of official labor bodies: The Ontario Federation of Labour, representing most of the province's unions, passed a resolution to support the Days of Action. While some unions gave only nominal support, the resolution was important in authorizing the strike, making it "official."

• The endorsement and support of local labor leaders and rank-and-file members: The strike could only be successful with their commitment to making it happen.

• A core of dedicated activists: These people brought the message to co-workers, within and across unions and, if necessary, past leaders who were opposed or ambivalent.

• An alliance between labor, social movements, and community groups: These alliances gave the movement a greater social base and greater mobilizing power. As one official said, "We were joined at the hip," throughout the Days of Action.

• The creation of a "general staff" for organizing and running the strike: The general staff must be large enough to reflect the leadership of the organizations involved, and small enough to effectively engage in rapid discussion and decisionmaking when necessary. The general staff has to be responsible to the unions that have authorized the strike, to the rank and file involved, and also to the communities that will be affected. The general staff must plan and oversee the strike, handle negotiations with authorities, and respond to emergencies.

• A detailed plan: The plan of action should include: a) a list of all the workplaces to be closed; b) a list, for each location, of all entrances and exits to be covered; c) a general map of all the facilities to be closed, and specific maps for each location; d) a timeline for the closing of workplaces, with plans to mobilize pickets for each hour and each day; e) listings of picket captains and their contact information.

• The assignment and training of picket captains and pickets: Picket captains need to be trusted, reliable, capable people who will take responsibility for closing down locations, dealing with authorities at the local level, maintaining discipline of the picketers, and enforcing the strike on those who attempt to violate it. Picket captains need to understand the strike's "rules of engagement." The strike may be peaceful, involve the use of civil disobedience, involve the use of force, or involve seizure of property. In the case of the Days of Action, the rules were to maintain peaceful picket lines and enforce the strike. But in other situations, different rules may apply.

• The training of pickets: Picketers need to know exactly what they are supposed to do, where and for how long, and to whom they are to turn over responsibility when their shift ends. Typically, strike rules include: assigned hours of duty, assigned equipment (bullhorns, picket signs, armbands, ropes or tape to indicate off-limits areas), rules of behavior (no drinking, no drugs, no swearing or abusive language), rules of engagement with those who attempt to violate the picket line (shouted slogans, locked arms, physical isolation and removal, use of limited force, etc.).

• Media team: Media spokespeople have a sensitive job, since their statements establish in the mind of the public—including the employers and the government--the reason for the strike, its character, its objectives, and its methods.

• Internal communications team: In the lead-up to the strike and on the days of the strike, the team needs to constantly produce information for strike captains, picketers, union and community organization members, and the general public, possibly in several languages.

• Emergency medical services: In any large gathering of people, there will almost always be health problems, and doctors, nurses, and other health professionals should be organized into teams identifiable to the public and the police, and linked to picket captains.

• Transportation or logistics team: In a strike like the Toronto Day of Action that brought thousands of other Ontario residents into the city, a committee must arrange transportation, overnight shelter, and food (whether through prepared meals or simply directing people to restaurants).

• Liaison with employers: The general staff needs to negotiate with employers over maintenance of essential services, such as emergency rooms, ongoing patient care, and hazardous operations such as chemical and nuclear plants. Leaders should also try to negotiate no-retribution agreements.

• Liaison with police: The general staff needs to inform the police of plans, to avoid unnecessary conflict and confrontation. Strike leaders may also want to meet with leaders of the police union. The general staff should be able to communicate instantly with police commanders during the strike, to deal with emergencies and, if possible, ward off repression.

• Strike day operations team: This team oversees picket captains, picket lines, and related activities to make sure that they happen as planned, and to deal with contingencies and emergencies.

• March or rally team: The march route needs to be carefully examined and worked out in detail with the police and other authorities. Entertainment needs to be organized, and making the speakers list will likely be a politically sensitive task.

• Negotiation committee: If the strike has a particular political objective, and will continue until there is some sort of resolution of the issue, a negotiation team will have to deal with the relevant authorities. It should be made up of the central leaders of the bodies that authorized the strike. The negotiators will coordinate with the general staff and the media and communications teams to keep the picket captains and picketers informed of developments.