Like few moments before it, the Friedrichs case sparked a broad con­sen­sus with­in labor that our move­ment faced an exis­ten­tial cri­sis and that busi­ness as usu­al was a pre­scrip­tion for assist­ed sui­cide. Unfor­tu­nate­ly, too many union lead­ers and staff based out of Wash­ing­ton, D.C. are now at risk of being dis­missed as a bunch of Chick­en Lit­tles who over­hyped a sky that nev­er fell by the peo­ple who have the great­est abil­i­ty to deter­mine labor’s future: the local lead­ers and dis­en­gaged members.

The Friedrichs vs. CTA Supreme Court case, a naked­ly par­ti­san assas­si­na­tion attempt on the labor move­ment, has died with Jus­tice Antonin Scalia. What can­not die with it is the sense of exis­ten­tial cri­sis with­in the labor move­ment. We need a far-reach­ing con­ver­sa­tion about the path­way back to increased activism, mem­ber­ship and power.

It was a mis­take to use the Friedrichs case to forge this some­what rare agree­ment that labor faces an acute cri­sis. It seemed like a long shot that the Supremes would even take up the case just a few months after reject­ing Jus­tice Alito’s wet dream of a pub­lic sec­tor ​“Right to Work” stan­dard by a 5 – 4 mar­gin in last session’s Har­ris vs. Quinn case (I lost a lot of bar bets when they did). Even with the case pro­ceed­ing to oral argu­ments, there was always the pos­si­bil­i­ty that the Court would punt on the issue or even rule in favor of the unions for polit­i­cal rea­sons or that one of these old farts would die and the case would deadlock.

But labor’s cri­sis pre­dat­ed Friedrichs and will live on after it. The ​“Right to Work” agen­da, and the gut­ting of pub­lic sec­tor col­lec­tive bar­gain­ing laws, will con­tin­ue to be pressed at the state lev­el. And if the gen­er­al finan­cial com­mit­ment and philo­soph­i­cal approach to new union orga­niz­ing remains the same, union den­si­ty will sure­ly con­tin­ue to decline.

For­tu­nate­ly, until the Friedrichs case gets re-argued or stale­mates in a 4 – 4 deci­sion, labor remains a bit like Schrödinger’s cat: simul­ta­ne­ous­ly get­ting mur­dered by the judi­cia­ry and in the midst of a pos­si­ble res­ur­rec­tion. So there’s still time to har­ness the sense of cri­sis into a renewed com­mit­ment to rad­i­cal work­place democ­ra­cy and activism. And the ​“rainy day” sav­ings that many unions made in antic­i­pa­tion of an adverse deci­sion can now be used as a ​“Scalia Div­i­dend” to be invest­ed in new campaigns.

A prag­mat­ic approach to Armageddon

Faced with a poten­tial rev­enue loss of mil­lions of dol­lars, inter­na­tion­al unions focused prag­mat­i­cal­ly (and con­ser­v­a­tive­ly) on cajol­ing their locals to sign up agency fee pay­ers to full union mem­ber­ship. But that was mere­ly a mat­ter of mechan­ics — a prag­mat­ic approach to the com­ing Armaged­don. Where work­ers are exclu­sive­ly rep­re­sent­ed by a union and already com­pelled to pay fees for the ben­e­fit of that rep­re­sen­ta­tion, those that haven’t joined typ­i­cal­ly haven’t been asked. It is a prob­lem that too many unions don’t make a face-to-face con­tact to new employ­ees and ask them to join, but it’s hard­ly labor’s biggest one.

The actu­al cri­sis in labor is root­ed in a frame­work that has turned unions into agen­cies for work­ers, instead of orga­ni­za­tions of workers.

The legal oblig­a­tion of the duty of fair rep­re­sen­ta­tion forces unions to focus on griev­ances and con­tract bar­gain­ing while the Taft-Hart­ley law and con­trac­tu­al no-strike agree­ments strong­ly dis­cour­age rank-and-file work­er protest. Too many mem­bers then devel­op a ​“what have you done for me late­ly?” rela­tion­ship with their union that is vul­ner­a­ble to a ​“give your­self a raise” cam­paign that deep-pock­et­ed right-wing out­fits can launch fol­low­ing the loss of agency fee, encour­ag­ing union mem­bers to stop pay­ing dues or agency fees and gain a bump in their paycheck.

That is the cri­sis that has been large­ly unad­dressed, or at least unsolved, even while unions have spent two decades gen­uine­ly try­ing to meet the charge from the AFL-CIO to ​“orga­nize at an unprece­dent­ed pace and scale.”

Not to men­tion, while union sup­port­ers were danc­ing on Jus­tice Scalia’s grave, the West Vir­ginia leg­is­la­ture just vot­ed to become the 26th so-called ​“Right-to-Work” state. How long can agency fee sur­vive in the oth­er half of the states?

So the cri­sis still exists in that declin­ing union den­si­ty leads to declin­ing union pow­er. The bil­lion­aire class still wants to kill us, and we don’t make a com­pelling case about why work­ers should risk their jobs and rela­tion­ships to fight with unions that look like inef­fec­tive spe­cial interests.

One of the under-told sto­ries of the last two decades is how bad­ly, and often how sub­tly, the orga­niz­ing mod­el con­flicts with unions’ busi­ness as usu­al. In order to win, orga­niz­ers intro­duce a rad­i­cal and inclu­sive democ­ra­cy into work­places. We recruit often large and unwieldy orga­niz­ing com­mit­tees of work­place lead­ers through whom all major deci­sions about tac­tics, tim­ing and demands must go for delib­er­a­tion and approval.

And then we throw these new­ly rad­i­cal­ized work­ers into local unions where lead­er­ship all too often feel a polit­i­cal need to con­trol bar­gain­ing and mes­sag­ing them­selves, going off into back­rooms to meet with man­age­ment and come back with a ​“win.” This is an unspo­ken con­flict between inter­na­tion­al unions — who feel the need to ​“orga­nize or die” more acute­ly — and locals who too often receive new bar­gain­ing units as an unwel­come disruption.

Many orga­niz­ers want­ed to use Friedrichs as an oppor­tu­ni­ty to work through this con­flict. Instead, pan­icked about poten­tial rev­enue loss, the lead­er­ship of the inter­na­tion­al unions talked too much about ​“agency fee con­ver­sion” (shop talk for con­vinc­ing union-rep­re­sent­ed non-mem­bers to join and pay full dues) and a sin­gle Court case that is now moot. The orga­niz­ers caught in the mid­dle could find them­selves locked out of fur­ther con­ver­sa­tions about labor renew­al and change with locals that now feel the cri­sis has passed. They need to broad­en the sense of cri­sis and bring new­found resources to the table.

The ​“Scalia Div­i­dend”: Labor’s sec­ond chance to get it right

Many unions that had Friedrichs’ sword of Damo­cles over their heads have qui­et­ly been squir­rel­ing mon­ey away, by under-fund­ing or delay­ing fund­ing new cam­paigns and not fill­ing vacant staffing posi­tions. Which means those unions now wake up to a ​“Scalia Div­i­dend” — an unex­pect­ed wind­fall of new­ly avail­able finan­cial resources for new cam­paigns and initiatives.

Unions can and should com­mit resources to com­pre­hen­sive cam­paigns for new bar­gain­ing units — the kind of cam­paigns that have qui­et­ly ceased in recent years. These orga­niz­ing cam­paigns should have an eye towards enhanc­ing den­si­ty in union strong­holds like auto man­u­fac­tur­ing, edu­ca­tion and retail, but also for big pub­lic cam­paigns that could poten­tial­ly inspire more non-union work­ers to take action.

What could go fur­ther in inspir­ing non-union work­ers to con­tem­plate their pow­er is to build on the inter­nal orga­niz­ing that’s been going on in antic­i­pa­tion of Friedrichs with con­tract cam­paigns. Mean­ing­ful mem­ber engage­ment — the kind that can with­stand the loss of agency fee — comes from stok­ing work­ers’ desires for bet­ter pay and work­ing con­di­tions (even their less ​“rea­son­able” demands) and extract­ing sweat equi­ty from them in the form of esca­lat­ing actions. These cam­paigns should cul­mi­nate in a plan to demon­strate, as Chica­go Teach­ers Union Pres­i­dent Karen Lewis has said that, ​“Our abil­i­ty to with­hold our labor is our pow­er.”

We also need a new attempt at labor law reform. The fact that a work­ers rights bill has less of a chance pass­ing Con­gress than Obama’s Supreme Court nom­i­nee shouldn’t make us say ​“Why both­er?” Instead, it should inspire us to pro­pose big, bold and mean­ing­ful reforms. Restor­ing sol­i­dar­i­ty rights, root­ing unions’ col­lec­tive actions in the First Amend­ment, out­law­ing ​“Right to Work,” ban­ning per­ma­nent replace­ment of strik­ers — put it all on the table.

God for­bid we do man­age to spark the kind of mass strike wave that pan­ics the bil­lion­aire class into throw­ing work­ers a few bones. What would we win for our effort? Card check? The AFL-CIO should con­vene an open call for legal reform pro­pos­als and put a new ​“Right To Your Job” bill on the record and on the lips of our mem­bers and allies.

The erst­while House of Labor should also con­vene a wide-rang­ing strate­gic retreat for local lead­ers, rank-and-fil­ers, staff, aca­d­e­mics and activists that treats no idea as unwel­come or unthink­able. The recent peti­tion filed by 106 lead­ing labor schol­ars in response to a ques­tion on union access to manda­to­ry cap­tive audi­ence meet­ings left open by the NLRB (and prompt­ly for­got­ten by union orga­niz­ers) for 50 years high­lights how bad­ly labor needs more and dif­fer­ent per­spec­tives brought into the con­ver­sa­tion. The poor souls who have spent the last few months por­ing over orga­niz­ing data­bas­es, wall charts and lit pieces in antic­i­pa­tion of the Friedrichs deci­sion need some fresh air and some new peo­ple to talk to.

Unions are no longer fac­ing a mul­ti-mil­lion dol­lar hit in June. We can give the bunker men­tal­i­ty a break, but we can’t pre­tend that we’re in the clear. There aren’t a lot of sec­ond chances in life. Labor must not squan­der this one.