The sword of Damo­cles hangs over the head of the Amer­i­can labor move­ment. This spring the U.S. Supreme Court will rule on Friedrichs vs. CTA, a case that could end auto­mat­ic union mem­ber­ship in all gov­ern­ment jobs. If this ​“right to work” effort goes the way the right wing hopes, it would be fol­lowed by an aggres­sive and well-fund­ed direct mail and robo-call cam­paign to encour­age pub­lic sec­tor employ­ees to ​“give your­self a raise” by drop­ping their union mem­ber­ships and ceas­ing to pay dues or fees.

Mis­lead­ing­ly titled ​“right to work” laws pro­hib­it unions in the pri­vate sec­tor from nego­ti­at­ing fees for the ser­vices they are com­pelled to pro­vide to all work­ers they rep­re­sent. They are designed to reduce unions’ income and pow­er. First intro­duced in 1947, these laws used to be lim­it­ed to the for­mer slave states of the Con­fed­er­a­cy. But in recent years, a coor­di­nat­ed right-wing dri­ve has expand­ed these laws to a major­i­ty of states, includ­ing union strong­holds like Michi­gan and Indi­ana. Thanks in part to such laws, unions today rep­re­sent only 7 per­cent of pri­vate sec­tor work­ers. But fac­tor­ing in the pub­lic sec­tor rais­es total union den­si­ty to 12 per­cent. Unions with sub­stan­tial pub­lic sec­tor mem­ber­ship — AFSCME, SEIU, the teach­ers unions — are the last remain­ing large, pow­er­ful unions in the U.S. Friedrichs is noth­ing less than an assas­si­na­tion attempt on the union movement.

Open­ing the doors to the union

Labor lacks a bul­let­proof vest, but unions are devel­op­ing con­tin­gency plans. We can prob­a­bly expect to see some unions begin to offer at-large mem­ber­ships to sup­port­ers regard­less of pro­fes­sion, employ­ment sta­tus or bar­gain­ing rights. And why not? Accord­ing to a recent Gal­lop poll, 58% of Amer­i­cans sup­port unions and want to see them strength­ened. Research shows that one in three Amer­i­can work­ers would vote for a union at their work­place if an elec­tion were held today.

But a union elec­tion won’t be held today at most work­places. Vicious employ­er resis­tance and retal­i­a­tion, a bro­ken legal process and declin­ing union resources stand in the way of most work­places win­ning the major­i­ty vote that is required in our all-or-noth­ing union rep­re­sen­ta­tion system.

Of course, the work­ers who want a union want… a union. They want an orga­ni­za­tion that can help raise their wages and improve their ben­e­fits, pro­tect them from arbi­trary and capri­cious fir­ings and gives them voice in how things get done at work. All that a union can pro­vide an at-large mem­ber right now is dis­count AT&T cell phone plans and pet health insur­ance. At-large mem­ber­ships are not like­ly to lead to mil­lions of new union members.

But there might be a cou­ple hun­dred thou­sand peo­ple will­ing to pay 10 bucks a month to belong to a move­ment. Poten­tial­ly faced with the imme­di­ate loss of exact­ly that many cur­rent mem­bers, that’s an attrac­tive propo­si­tion to unions. The key will be to actu­al­ly bring a move­ment into people’s homes, and that means con­nect­ing at-large union mem­ber­ship with advo­ca­cy and leg­isla­tive campaigns.

A ​“right to your job” movement

Open­ing up the labor move­ment and pur­su­ing new rights for all work­ers would help get labor out of the box of think­ing most­ly about union­ized work­places and appear­ing to be a spe­cial inter­est. Unions’ recent embrace of ambi­tious efforts to raise state-lev­el min­i­mum wages to $15 has so far been at the heart of these efforts. Upwards of 24 mil­lion work­ing peo­ple would receive a raise if the pathet­ic fed­er­al floor of $7.25 an hour was raised to just $10, so the Fight for $15 has a huge built in con­stituen­cy beyond just fast food workers.

Unions should add to this a state-by-state effort to change the legal stan­dard of employ­ment rela­tions to ​“just cause.” ​“Just cause” is the prin­ci­ple that an employ­ee can­not be fired unless it’s for a good rea­son — basi­cal­ly, that the pun­ish­ment (los­ing your liveli­hood) should fit the crime (steal­ing, lying, just not being good enough at the job). This often means that an employ­ee has been giv­en some advance notice of her sup­posed short­com­ings and an oppor­tu­ni­ty to improve and/​or be pre­sent­ed with the doc­u­men­tary evi­dence to back up the employer’s claims of sub-stan­dard per­for­mance with an oppor­tu­ni­ty to con­test it.

This is very com­mon­ly nego­ti­at­ed into union con­tracts. Non-union work­ers gen­er­al­ly labor under an ​“at-will” stan­dard of employ­ment, a holdover from Eng­lish com­mon law that basi­cal­ly tells a work­er, ​“Con­grat­u­la­tions, you are not a slave. That means you are free to quit your job — and your boss is free to fire you.” It’s a kind of lib­er­ty, I guess, but not one that’s par­tic­u­lar­ly appealing.

The only job pro­tec­tion that at-will employ­ees cur­rent­ly have is to try to shoe­horn their case into one of a hand­ful of legal­ly ​“pro­tect­ed cat­e­gories” of work­ers: be a woman, be a racial minor­i­ty, be over the age of 42, be dis­abled, be a whistle­blow­er. And even if a case does fit in one of those cat­e­gories, a work­er can only receive some finan­cial rec­om­pense — gen­er­al­ly not retain­ing her job — if she can prove that she was fired because of their pro­tect­ed sta­tus. It’s a lousy frame­work, but the best that an at-will employ­ee has.

Richard Kahlen­berg and Moshe Mar­vit advo­cate for union activists to be added as a pro­tect­ed class through an amend­ment to civ­il rights laws. They do us a favor by get­ting unions to think out­side of the Nation­al Labor Rela­tions Act for labor law reform. But their pro­pos­al is still too lim­it­ed. We should not mere­ly be fight­ing for ​“spe­cial” rights for union activists. As union den­si­ty has declined, the remain­ing union­ized work­places come to be seen as islands of rel­a­tive priv­i­lege. Boss­es and the media exploit this and try to whip up a degree of work­ing-class sup­port for strip­ping our last few rights away, seen most clear­ly seen in the pub­lic debate around teacher tenure pro­tec­tions (which is sim­ply the just cause stan­dard by a dif­fer­ent name).

Imag­ine how quick­ly the debate would change if unions fought for and won mean­ing­ful job pro­tec­tions for all work­ers in a state! Call it a ​“right to your job” law. Such a law would lay bare just how cyn­i­cal­ly manip­u­la­tive and hol­low the so-called ​“Right to Work” laws are.

To be mean­ing­ful, such just cause laws would have to include some kind of a court in which to hear cas­es. This could be as sim­ple as man­dat­ing pri­vate medi­a­tion and arbi­tra­tion or as com­plex as cre­at­ing new state reg­u­la­to­ry agen­cies to hear such cas­es. If work­ers did have a court in which they could defend their employ­ment, unions would have some­thing real to offer at-large mem­bers as a part of join­ing the union. And with that offer comes the poten­tial for sub­stan­tial mem­ber­ship growth.

A rad­i­cal depar­ture for labor

Attempt­ing to leg­is­late job pro­tec­tions, pay and ben­e­fit increas­es for large groups of work­ers who prob­a­bly won’t become dues-pay­ing union mem­bers would be a rad­i­cal depar­ture for the Amer­i­can labor move­ment. Unions have, for his­tor­i­cal rea­sons, pre­ferred to make their gains in con­tract bar­gain­ing. The ear­ly labor move­ment, in the 19th cen­tu­ry, did work to pass laws on wages, hours and fac­to­ry con­di­tions. They saw most of those laws over­turned, as well as many of their strikes and boy­cotts enjoined, by con­ser­v­a­tive courts that viewed unions’ efforts as vio­la­tions of pri­vate con­tracts and dis­tur­bances of inter­state commerce.

As a result, unions across the polit­i­cal spec­trum entered the 20th cen­tu­ry with a pro­found dis­trust of gov­ern­ment and polit­i­cal par­ties. While labor’s great upsurge of the late 1930’s did bring unions into the polit­i­cal are­na, it coin­cid­ed with the effec­tive end of the New Deal and the inabil­i­ty to expand the wel­fare sys­tem with ben­e­fits like nation­al health insur­ance. Unions turned to their own col­lec­tive bar­gain­ing for employ­er-spon­sored ben­e­fits instead of the gov­ern­ment. Such efforts were ini­tial­ly a kind of stop­gap mea­sure, pur­sued in the mean­time while hop­ing to even­tu­al­ly secure gov­ern­ment-pro­vid­ed ben­e­fits. But when the gov­ern­ment froze wages dur­ing World War II, unions bar­gained for more and more ​“fringe ben­e­fits” to make up for the loss.

The labor move­ment that emerged in the post-war era had won a mas­sive pri­vate wel­fare sys­tem for its mem­bers. Union lead­ers con­sid­ered this a ​“union advan­tage” that would help ​“sell” new orga­niz­ing. The only major ben­e­fit that labor did work to leg­is­late in that era was Medicare and Med­ic­aid (After all, it’s pret­ty hard to bar­gain with employ­ers for peo­ple who don’t work for them). With one in three work­ers in a union dur­ing the post-war peri­od, even non-union employ­ers had to try to match those ben­e­fits to remain com­pet­i­tive. This pri­vate wel­fare sys­tem worked for a gen­er­a­tion, but it was all too vul­ner­a­ble when less than one third of work­ers were orga­nized to defend it.

The labor move­ments of oth­er coun­tries strike more of a bal­ance between nego­ti­at­ing rights and ben­e­fits for their mem­bers and leg­is­lat­ing them for all work­ers. This is par­tic­u­lar­ly so in coun­tries where unions formed labor par­ties or aligned with social­ist par­ties. And when rights are enjoyed by all, they are defend­ed by most. Think of France and the mas­sive protests over aus­ter­i­ty pro­pos­als to slash pen­sions and ben­e­fits in 1995 and 2010. Would you believe that French union den­si­ty stands at a mere 7 percent?

Unions tend to think of leg­isla­tive­ly gained rights and ben­e­fits as eas­i­ly lost if the wrong gov­er­nor gets elect­ed or a bad mid-term flips con­trol of a state­house. We should instead view labor’s leg­isla­tive agen­da as anoth­er way of bar­gain­ing for the com­mon good. It is a way of broad­en­ing our base, open­ing wide the doors of our move­ment, to win and pro­tect a stan­dard of liv­ing that we all deserve.