Opinion: Public Utility Campaigns Have A Labor Problem

By C.M. Lewis - The Strike Wave, July 28, 2021

Maine Governor Janet Mills’ labor-backed veto of LD 1708—which would have consolidated two private utility corporations into a statewide consumer cooperative, Pine Tree Power—is a sober warning to those fighting for public utilities: neglect unions at your peril.

Mills is no friend to labor. She previously vetoed pro-worker labor reforms and pledged to veto the right to strike for public workers. But her veto, sustained by the legislature, still accomplished the goal of concerned unions like the International Brotherhood of Electrical Workers, Local 567, who were alarmed at a potential change in legal jurisdiction.

Union resistance to progressive proposals can often cause consternation. Culinary 226’s opposition to Medicare for All notably caused a stir during the Nevada caucuses, raising the ire of many progressives. However, an immediate assumption that IBEW was wrong to oppose the bill buries the complicated reality: the bill would’ve tangibly harmed union workers. 

IBEW’s opposition was driven by concern that the bill would move workers from jurisdiction under the National Labor Relations Board to the Maine Labor Relations Board, bringing them into the public sector. Although that superficially sounds like a minor administrative change, and no reason for opposition, it would’ve had severe consequences for their workers—notably losing the statutory right to strike, and the imposition of the open shop through the Janus vs. AFSCME ruling

Viewed through that lens, IBEW’s opposition—while frustrating—is not unreasonable, and it speaks to a difficult problem faced by advocates for public utilities: that under present law, there is little to no way to bring private utilities under public control without stripping union rights from workers.

Maine legislators tried to address this with a late amendment that Pine Tree Power would be a private employer. However, the amendment didn’t solve the problem. Under the National Labor Relations Act, which preempts any state legislation, the NLRB can’t assert jurisdiction over any “political subdivision” of the state. There’s a long case history determining what constitutes a “political subdivision,” summed up in the Hawkins test, named after an NLRB case dealing with a Tennessee utility district. 

Numerous elements of LD 1708 would be red flags signalling that no matter what state legislators said, the NLRB would decline jurisdiction under the Hawkins test. Under LD 1708, the board of Pine Tree Power would report to a state legislative committee, and elections for the Board would be regulated by the Secretary of State and outlined in election code. The Governor would even have the right to appoint vacancies to fulfill terms.

None of that would pass muster with the NLRB, throwing public sector workers into legal limbo with no avenue to assert their labor rights. The only solution would be a legislative fix bringing them under the state labor board—exactly what IBEW wants to avoid. 

This is the crux of the problem. Anything that meaningfully democratizes public utilities is going to run afoul of the political subdivision clause, triggering the question of whether they’re under NLRB jurisdiction, or state jurisdiction. In many states, especially those where public sector bargaining laws don’t exist, the consequence could be a significant loss of rights.

This is by design. The Right’s attacks on public sector labor rights not only weaken one of the last strongholds of organized labor, they erode the public sector as a whole. Plummeting labor standards and less secure work furthers slash-and-burn austerity measures, and smooths the way for privatization. Coupled with the drumbeat of so-called “pension reform,” public employment becomes less attractive and far harder to defend from would-be privatizers.

Some of this could have been addressed by the bill’s authors. Losing the statutory right to strike could’ve been fixed legislatively by either repealing Maine’s ban on public sector strikes or through creating a special carveout for the Pine Tree Power workers. Legislation could have even enhanced workers’ rights past what’s found under the NLRA by barring permanent replacement of strikers, preventing employers from unilaterally implementing contracts, expanding mandatory subjects of bargaining, and adding a worker representative to Pine Tree Power’s board.

They even could’ve helped manage the fallout of the unavoidable imposition of the open shop through measures like legal requirements that the employer notify the union of new hires, legally guaranteed access to worksites, and the right for union officials to transact business during work hours. If legislation strengthened the union’s ability to internally organize, the loss of agency fees might have been an acceptable tradeoff for the gains made.

Instead, legislators grafted on a last-minute fix that didn’t address the problem and showed that the problem was—at best—an afterthought. With labor in opposition to the bill, Governor Mills was free to veto it with little worry of genuine backlash.

The problems raised by the campaign show the wide-ranging consequences of the Janus vs. AFSCME ruling: in this case, a strong and largely unavoidable disincentive for existing unions at private utilities to support campaigns to bring private goods into public ownership. As Justice Elena Kagan wrote in her blistering dissent, “the majority’s road runs long . . . [a]nd at every stop are black-robed rulers overriding citizens’ choices.”

It’s also a warning of realities that public utility advocates need to confront: that union workers can’t be neglected in campaigns to bring utilities into public ownership, and any campaign for public ownership of utilities needs to fully commit itself to significant expansions of rights for public sector utility workers. Failing to do so presents labor with no incentive to support proposals and plenty of reasons to oppose them. That can, as it did with LD 1708, actually undermine chances of success.

Campaigns for public utilities are necessary, and bringing utilities—especially energy utilities—under public control is an essential part of any effort to combat climate change. Union workers should support them. But in doing so, we need to make clear that a “just transition” must have substance that speaks to the needs and concerns of workers and unions, and that workers’ rights are at the heart of the fight.

C.M. Lewis is an editor of Strikewave and a union activist in Pennsylvania.

Disclaimer: The views expressed here are not the official position of the IWW (or even the IWW’s EUC) and do not necessarily represent the views of anyone but the author.