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“The Class Idea” (And How to Get It)

Many progressives in the United States are prone to making gloomy jokes about moving North whenever conservative forces grip our national institutions. After all: Canadians have unions! They have health care! They don’t pretend that everyone’s middle class!

Why, people wonder, are the politics and labor movements of the two countries so different?

In his new book, Labor and the Class Idea in the United States and Canada, sociology professor Barry Eidlin grapples with this question. His explanation not only illuminates the history but suggests some ideas about a course correction for the U.S. labor movement.

Canada, by contrast, strengthened its labor laws. The Canadian labor party—the New Democratic Party—is frequently in power in certain provinces, acting like a left pressure bloc on Canada’s not-quite two party system.

Eidlin locates the source of this reversal of fortune, in part, in how much harder the Canadian unions had to fight to establish themselves. In contrast, an American labor law regime was handed to union organizers by the New Deal. The fight in Canada took a decade longer for the government to recognize a protected right to engage in union activity, and it solidified a class consciousness among Canadian workers that in the United States is a bit more, well, flippy-floppy.

And this raises the perennial question: How can we get the American working class to recognize its own existence and fight like hell for what it deserves?

The United States and Canada are remarkably similar countries in terms of labor politics. We were colonized by the same European nations—England and France—which shaped our political cultures. And U.S. unions colonized Canadian workplaces by chartering locals north of the border. (The “I” in most unions’ acronyms stands not for “Industrial” but for “International,” which basically means, “Oh, and we have some members in Canada.”) For that reason, Canada’s labor law regime was modeled on the U.S. emphasis on government-certified bargaining units with firm-level contract bargaining, exclusive representation, and the union shop.

The passage of key pro-union legislation, including the 1935 National Labor Relations Act, preceded and in some ways made possible U.S. labor’s great upsurge in organizing and strike activity, Eidlin argues. Union rights were in effect “granted” by the Roosevelt Administration, which was rewarded, in turn, with the entrance of unions into the Democratic Party coalition as a special interest.

The Canadian government responded to increasing worker militancy during the Great Depression with equal parts repression and indifference. By way of example, Vancouver dockworkers went on strike in 1935 for union recognition. The struggle faced armed resistance from employers and the police, briefly spreading to a general strike punctuated by a bloody street fight—the Battle of Ballantyne Pier. In the United States, the West Coast longshoremen who had gone on strike the year prior, won union recognition through federal pressure and a nascent system of New Deal tripartite arbitration. The Vancouver dockworkers’ fight dragged on another decade until the Canadian government created more labor-friendly laws.

As a result, Canadian workers were far more likely to see themselves as a working class with distinctly different interests than the bosses, government, and two major parties. They made common cause with farmers in a third party—the forerunner of today’s New Democratic Party—that continued to gain votes and threaten the power of the established party. Crucially, they continued to strike during World War II for their rights and in protest of rising inflation.

That electoral threat, combined with the impact of the strikes on wartime production, finally compelled Canada’s government to enact a labor law that protected workers’ rights in 1944.

American unions’ post-war rise in militancy, by contrast, was greeted with legislative repression. The Taft-Hartley Act—which outlawed many forms of strikes and legalized anti-union “right to work” legislation—codified the legal status of unions as a mere special interest, one to be “balanced” against management.

Eidlin explores the key tests of strength faced by unions in the postwar years, and how that shaped the divergence in fortunes. Both countries faced a Red Scare, but unions in the U.S. contended with a 1960s New Left not centered on questions of class.

Canada’s labor movement, in contrast, made room for New Left politics within its New Democratic Party. They were able to tap into the hard-fought recognition of class interests to convince the government to strengthen labor laws as a way to mediate industrial disputes.

Eidlin, I think, underestimates the explanation given by many previous scholars for the lack of an American labor party: that property-based restrictions on voting were abolished before American workers had a chance to fully conceive of themselves as a separate class. The American labor movement entered the Great Depression already an atomized collection of special interests to be courted by the two major parties.

Regardless, a more urgent question for American activists is how to to wake the working-class giant. I suggest two trends—legal reform and political realignment—that contain promise.

One idea for creating a new labor relations system is an old idea that’s gaining traction: wage boards. These are public, tripartite industrial standards boards that can raise wages and working standards across entire industries. They were a cornerstone of the early New Deal framework, and still exist in some states, waiting for a demand to be revived.

The National Industrial Recovery Act of 1933, FDR’s first legislative effort to woo unions into the Democratic fold, is perhaps best remembered for its Section 7 guarantee of workers’ rights to organize unions. Though lacking an enforcement mechanism, the guarantee did inspire workers to sign up for unions in droves and helped get labor’s great uprising going.

The act also created tripartite industrial boards, like the National Longshore Board that arbitrated end of the 1934 strike. These consisted of a representative each from companies, unions, and “the public” for each major industry—with the power to establish minimum wages, work rules and union recognition. Strong unions like the Amalgamated Clothing Workers and United Mine Workers were able to press the boards to raise wages and spread union standards across non-union firms in their industries. In non-union industries where workers didn’t rise up in paralyzing strikes, the boards gave little thought to working conditions.

The National Labor Relations Act was meant to be an enforcement mechanism for the National Industrial Recovery Act’s “right to organize.” The 1935 act outlawed pervasive union-busting techniques like retaliation and surveillance of union activity of employees. It threatened the power of the state to restrain “unfair labor practices,” and it demanded that employers bargain in good faith when workers declared themselves to be a union.

But the National Industrial Recovery Act was declared unconstitutional by an arch-conservative Supreme Court that detested the idea of any kind of federal intervention in the private market. Roosevelt signed the 1935 National Labor Relations Act into law a few weeks after the court struck down the earlier law. His expectation had been that the two laws would exist side by side. The NLRA-created National Labor Relations Board would protect workers’ rights to organize and strike, while the NIRA-created industrial wage boards (and their state-level counterparts) would arbitrate union demands and impose the terms on employers.

University of Michigan law professor Kate Andrias proposes that wage boards, still on the books in states like California and New Jersey, could be used to pioneer a new form of social bargaining in the here and now. This is not pie in the sky. New York’s wage board system was dusted off by Governor Andrew Cuomo in response to the Fight for $15 movement.

American unionists might hear “tripartite” as “two votes to one against the workers.” But what do you call a group of decision-makers who could vote to give you and your peers a wage increase or fairer scheduling practices or the right to several weeks of paid family leave but resists doing so? I call that a boss – a big one that we can run campaigns against.

Let’s imagine a hospitality industry labor board. The board could enact a whole range of changes, from raising the minimum wage to abolishing the practice of tipping. It could ban “clopens,” the practice of assigning an employee to work the first shift of the day after she just finished the last shift of the night before. It could take on issues of harassment in the workplace, like granting cocktail waitresses the right to refuse to wear “uniforms” that are too sexually exploitative.

The workers’ representative on the board could force a vote on any issue. Once that vote is scheduled, every union and workers center with an organizing stake in the industry would agitate for a yes vote. Join us. Sign this petition. Wear this button. Pay your dues. The unions could anticipate which major employers would have the most influence on the other two board members, and target them for disruption with actions like slowdowns, consumer boycotts, and rolling strikes.

Unlike in our current system, where workers are siloed in their bargaining relationships with individual employers, unions could take on entire industries as a class.

Our political system is in the midst of a rare political realignment, suggesting that a class-based party of the people is possible, even in America. As the Republican Party degenerates into authoritarianism and white nationalism, it becomes unelectable in many large city and big urban states. The Democratic Party, meanwhile, remains a big blob of incoherence, grappling with an energized left flank while trying to absorb “former” Republicans who would drag it to the right.

The solution may be regional. We are seeing the ideological fight, appropriately, in primaries, as witnessed by Alexandria Ocasio-Cortez’s upsetwin over Congressman Joseph Crowley, and Cynthia Nixon’s challenge to Andrew Cuomo’s reelection.

But states like New York have essentially a one-party system—there is no threat of a Republican eking out a win in a three-way race. This makes a formation like the Working Families Party a viable second party.

With affiliates in more than a dozen states, the Working Families Party tends to act as a left pressure group in Democratic primaries, but doesn’t shy away from challenging corporate Democrats in general elections. It represents our best chance at an independent labor party in the United States and, like Canada’s New Democratic Party, could work on a regional basis.

More crucially, if the GOP continues its death rattle of naked racism and authoritarian hero-worship, while billionaire vampires like Howard Schutz and Michael Bloomberg abandon its corpse to suck what life remains from the Democratic Party, the rest of us are going to need a party to continue to fight for the survival and uplift of the 99 percent.

That is not to say permanent union opposition to both boss and state is a long-term winning strategy. Eidlin’s book—along with two centuries of union organizing in practice—make clear that workers need state power to restrict the worst impulses of corporations. But a degree of explicitly declared political autonomy within the current Democratic coalition, combined with a labor relations framework that treats workers as a distinct and protected class interest, could revive the class idea in the United States.

[This article originally appeared in The Progressive.]

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Can the Courts Strike Down Right-to-Work?

Last week, in a move that’s as likely to baffle union activists as it is to encourage them, a West Virginia judge struck down key portions of the state’s “right-to-work” law.

The Kenawha County judge’s ruling may amount to no more than a temporary hiccup in West Virginia Republicans’ war to destroy unions. But it’s another example of how hotly provisions of the 1947 federal Taft-Hartley Act are being contested in the courts as it becomes clearer that the anti-union impact of the law has contributed to an era of massive inequality that threatens our democracy.

West Virginia’s “right to work” law was rammed through on a party-line vote prior to 2016’s presidential election and the recent statewide teachers strikes. It had survived a Democratic gubernatorial veto and a previous injunction based in part on its ridiculously sloppy drafting. Last week, however, siding with a coalition of unions that included the building trades, Teamsters and Mineworkers, Judge Jennifer Bailey ruled the law  “unnecessarily and unconstitutionally imposes an excessive burden on Plaintiffs’ associational rights,” and that the goal of letting workers opt out of union membership “can be, and have been, fully accomplished without taking the additional steps of prohibiting agency fees, and giving free riders something for nothing.”

Anne Marie Lofaso, a professor of law at West Virginia University, describes Bailey’s ruling as “an extremely well-done decision that holds together and reflects some excellent lawyering for the union plaintiffs.”

In many respects, the West Virginia decision is a replay of a briefly encouraging moment in April of 2016 when a Dane County judge struck down Wisconsin’s recently enacted “right-to-work” law. That decision was predictably reversed by a Republican-dominated higher state court one year later.

Of the more recent West Virginia decision, Losafo says “Unless the [state] Supreme Court is willing to strip West Virginians of the individual liberties that our [state] constitution guarantees,” which, she notes are stronger than the federal constitution’s Bill of Rights,  “this will be a very difficult decision to overturn.”

Not that West Virginia’s Supreme Court can be counted on to act in a nonpartisan manner. The Republican state legislature has been busy impeaching the entire elected Supreme Court for the past couple of months in a bizarre soft coup. The five-person judicial body had tilted towards the Democrats, but is likelier to favor GOP lawmaking if this unprecedented power grab proves to be successful.

As in Wisconsin, the West Virginia unions’ argument was first asserted by Chief Judge Diane Wood of the Seventh Circuit in a 2014 federal case Sweeney vs. Pence. In a dissent, Wood argued that it is actually unclear what the 1947 Taft-Hartley legislators meant by “right-to-work”—that is, whether they were allowing states to ban mandatory fees or just mandatory union membership. Forcing unions to expend resources on non-members without any financial compensation, she further argued, represented an unconstitutional “taking” under the Fifth Amendment.

The West Virginia decision is based on parallel due process language in the state’s constitution, meaning that even if the decision stands, it holds no precedent anywhere else in the country. But if made in a federal case, it’s a legal argument that could overturn “right-to-work” laws around the country. A federal decision embracing Judge Wood’s logic would make the section of Taft-Hartley that even allows states to pass “right to work” unconstitutional, and all the state laws that followed it null and void.

To be clear: This “takings” deus ex machine came as a dissent in a case that labor lost, setting a precedent within the Seventh Circuit—which covers Illinois, Indiana, and Wisconsin. Still, any federal court outside of those states could strike down all of the “right to work” laws in its jurisdiction, thereby swiftly sending the issue to the Supreme Court.

Perhaps the speed with which such a case would hurtle towards Trump’s Supreme Court is why the West Virginia unions decided to challenge the “right-to-work” law in state court rather than in the federal Fourth Circuit. Similarly, a once-promising case in the liberal Ninth Circuit, Operating Engineers Local 370 v. Wasden, was quietly abandoned after Hillary Clinton lost the 2016 election. The hyper-partisan treatment of workers rights at all levels of the judiciary cannot be overstated.

At a time of rampant economic inequality that is stressing the foundations of our democratic institutions, many experts—even some conservatives—are noting, however belatedly,the decline of unions as a key factor in the end of shared prosperity.

In this context, the way that decades of pro-business case law singles out and restricts the rights of unions is ripe for challenge. Some judges (some of the Democrats, at least) are reconsidering decades of anti-union case law. And smart unions are looking for ways to break through these cracks in the wall.

“Right-to-work” laws arguably aren’t even the part of the Taft-Hartley Act most responsible for the labor movement’s long slow decline in membership and power. The Act also banned solidarity activism—or what the law dryly refers to as “secondary activity”—that is, the right of workers to extend a workplace dispute to a company that is not their direct employer but is nevertheless essential to their employer’s business. This, too, is finally being challenged by unions as an unconstitutional restriction on First Amendment rights.

Last month, the Service Employees International Union (SEIU) filed a Ninth Circuit challenge to the Taft-Hartley Act’s ban on secondary activity. Because almost all janitorial work is subcontracted to small, often fly-by-night employers, the long-term strategy of SEIU’s successful “Justice for Janitors” campaign has been to bring their union demands to the landlords who have the real power to raise wages.

In SEIU vs. NLRB, a Bay Area janitors local picketed the building in which they work to protest low pay and sexual harassment. When the subcontractor fired a group of workers who participated in the action, the National Labor Relations Board refused to reinstate them, ruling they lost the protections of the Act by picketing a “secondary” employer. In a statement to Bloomberg Law SEIU contends, “By construing the NLRA to prohibit non-coercive picketing, leafleting, and speech simply because the workers asked the managers and tenants of the building where they worked to help them improve the unjust working conditions in that building, the Board engaged in content-based discrimination in a manner that cannot survive modern First Amendment scrutiny.”

The legal assumption of coercion has been used to carve unions out of many First Amendment protections—even as the free speech rights of corporations have been greatly expanded. SEIU is making a point that should be obvious to anyone who isn’t Neil Gorsuch or Samuel Alito. If there’s no physical restraint, no threats of violence, then where is the coercion? What is wrong with workers talking with others workers about how poorly they’re being treated on the job and asking them to withhold their labor or consumer dollars from an unfair boss in solidarity?

“Coercion” has been left so unchallenged in the courts that Trump’s NLRB General Counsel appointee, Peter Robb, thinks he can ban unions from inflating a giant inflatable rat because he can argue that its presence at any union protest is inherently coercive. (Or actually because, as he’s been heard to say he “hates” it.) But with a proper regard for the First Amendment, it could be deemed “content-based” discrimination against workers’ free speech.

That would open yet another avenue to challenge to the nation’s anti-union labor law regime as grossly unequal and constitutional. To be sure, waging any fight for union rights in the courts if not without its risks. But not fighting for workers’ constitutional rights, it should now be clear, will only lead to more billionaire-funded Republican attempts to roll back our few remaining legal labor protections.

[This article originally appeared at The American Prospect.]

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Will Trump’s Labor Board Say Workers Have No Right to Float a Balloon?

Union activists eager for a free speech fight after the Supreme Court’s Janus v. AFSCME attack on union rights may have found one in the form of a giant inflatable rat.

Bloomberg reported last week that Trump-appointed General Counsel Peter Robb wants to issue a rule making it illegal to engage in any protest activity in the company of a balloon rat.

Cartoon rats—often with nasty red eyes, gnarly teeth and occasionally suitcases and neckties—have been a feature of worker demonstrations in the United States for almost 30 years. Initially conceived as a way to circumvent the Taft-Hartley Act’s restrictions on unions coming to the aid of fellow unions during a strike, they have since become a routine presence at legal picket lines and protest rallies. When not nicknamed “Scabby,” a rat is often named in ways that satirize an unfair boss. Many workers who find themselves in tough fights are warmed by this meme-of-memes’ way of dragging a low-road employer’s image even lower.

The rat’s legality under the Taft-Hartley Act has been heavily litigated and the symbol’s free speech protections are a mostly settled precedent. It’s not entirely clear what Robb’s legal strategy for exterminating the rat could be; what is clear, one senior NLRB official told Bloomberg, is just that he “hates” the inflatable beasts. One option reportedly under consideration would be to declare the rat’s presence at any strike, picket line, or rally to be inherently “coercive.” Conjuring up the worst union thug stereotypes, the argument would be that the presence of a large balloon implies the threat of violence and property destruction for those who do not comply with its silent demands.

It would be a curious time for the NLRB—which is tasked by statute to enforce and protect workers rights—to further restrict workers’ right to protest, and do so in a way that raises major First Amendment concerns. In June’s Janus decision, the Supreme Court endorsed an argument that any interaction that a union has with an arm of the government is inherently political, finally injecting the First Amendment directly into labor law. That was because in order to cripple public sector unions, the Court’s rightwing justices had to invent a free speech right for workers covered by union contracts who refused to pay for their representation or engage in union activity. If Scabby the Rat winds up before the Supreme Court, how would those justices reconcile their Janus affirmation of First Amendment rights to workers’ ability to freely engage in union activity?

Inflatable vermin were already a work-around for an egregious restriction of workers’ speech rights. The law currently forbids workers engaged in a union fight from talking to workers at companies that do business with their employer and asking those workers to strike their own employer in solidarity.

But the unequal application of the First Amendment to labor relations hardly ends there. Consider the legally-sanctioned “captive audience meeting.” In the run-up to an NLRB-conducted union certification election, an employer is allowed to force workers to attend mandatory anti-union presentations. In these meetings, the employer can threaten workers’ job security and benefits, as long as the threats are phrased as economic possibilities. They can even lie to workers about the process and the law, with one in ten employers going so far as to hire consultants to impersonate government agents, according to research from Cornell University.

A worker who refuses to attend a captive audience meeting can be legally fired. Pro-union workers have no right to respond or to correct the record and no right to equivalent access to address the electorate.

Consider also the Jefferson Standard doctrine that workers lose their legal organizing protections if they make “disloyal” statements about their employer. In one recent case that I highlighted previously, six employees at a Jimmy Johns franchise were fired for circulating leaflets to customers protesting their employers’ policy of forcing sick employees to report for work.

Two years ago, I authored a report for the Century Foundation calling “for unions and their allies to return to the rights-based rhetoric and constitutional legal strategies that preceded the passage of the National Labor Relations Act and the development of our current labor law regime.” Because federal labor law is constitutionally rooted in Congress’s power to regulate interstate commerce, the courts have built up a body of case law that considers unions’ impact on business first and foremost—with the constitutional rights of workers to free speech only a distant concern.

Part of what I was trying to challenge was the overly cautious strategy of union lawyers to avoid the courts—even as workers’ legal rights continue to be assaulted—for fear of unknown consequences. But what are the consequences of inaction if the rat is outlawed? That the courts might also outlaw the inflatable skunks and cockroaches that some unions have used as “just in case” alternatives? Spare us this small-bore thinking. If the NLRB tries to outlaw Scabby, they will present workers’ advocates with a strong case to make a First Amendment challenge to the Taft-Hartley Act’s unconstitutional ban on solidarity activism.

After all, is the presence of the rat outside of a non-union workplace or on a union picket line coercive? Hardly. The sad truth is that Scabby is largely ineffective at silently encouraging even the most ardent union supporter to take action. As I write this, there’s a giant rat outside the building across the street from the labor education center where I work. It’s under the (presumably) non-union scaffolding around the Cadillac dealership on Hudson Street in Manhattan’s Soho neighborhood. Nobody’s even handing out leaflets to explain the labor dispute. There’s a sign exhorting passersby to take a picture of the rat and post it on social media using the hashtag #WhyTheRat to learn more. I posted my tweet into the digital ether two weeks ago, and I still don’t know why Scabby’s hanging out in the hood.

What the rat does—and effectively—is raise the spirits of workers who know a rat when they see one. They turn union-busting employers into objects of ridicule. NLRB Counsel Robb spent his private sector legal career representing construction industry employers, who no doubt passed countless billable hours complaining to him about their pest problems. Bosses really are personally offended to be called a rat and to have giant inflatable rats mocking them outside of their property. That is what makes defending Scabby the Rat a First Amendment issue. An agent of the government is making a value judgment about the method and content of unions’ free speech and protest activity that has nothing to do with its impact on commerce or his agency’s charge under the law.

Such a case, at a minimum, may heighten the contradictions of the post-Janus legal world. If the First Amendment applies to labor relations, then it must apply to workers’ speech in their attempt to win or defend a union just as much as it does to workers’ speech when they quit one.

[This post originally appeared at The American Prospect.]

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The Rise of Feminist Labor Unions in Japan

A good union is a feminist organization. We reduce the gender wage gap, fight for family-work-life balance and non-discriminatory promotion standards and sometimes literally sound the alarm on workplace sexual harassment and assault – among many other ways that working women use their union membership to fight for equality.

For a time, Japanese labor unions fell far short of that standard.

Although there are very strong labor protections and anti-discrimination laws on the books in Japan, they are often evaded through the proliferation of contingent employment and ignored with lame appeals to “cultural traditions.” Female workers routinely experience sexual harassment, workplace bullying and lack of career advancement. The traditional enterprise unions that are common in Japan had a pretty bad track record of even seeing these practices as wrong, let alone standing up for their female members.

Starting in the 1990’s, a group of activists started new women-only unions to compete with the official unions and advocate for their members’ rights at work and in society. A recent book by Anne Zacharias-Walsh explores this story as part of a transnational solidarity project. Our Unions, Our Selves: The Rise of Feminist Labor Unions in Japan (Cornell University Press) is a fascinating account of union decline and potential rebirth that feels both entirely alien and yet very familiar.

It is also very interesting to anyone who is thinking deeply about the pros and cons of exclusive representation here in the United States. In most countries, unions compete for members and workplace leaders across industries and sometimes on the shop floor. Our peculiar system of one exclusive representative in a workplace, and formal agreements between unions not to compete is only shared, in part, by two other countries. American trade unionists literally exported their model to Canada and Japan. Following World War II, CIO union leaders helped Japanese workers craft their labor relations framework as a part of the U.S.-led rebuilding process.

Because of that, Japanese experiments with women-only unions are instructive about how new unions could even go about breaking the exclusivity model, and what might happen as a result.

The Japanese unions took the exclusive representation system and mutated it into a very peculiar model of company unions. There is no Japanese equivalent of the United Auto Workers union; that is there’s no union that seeks to represent all workers at every domestic factory in the auto industry. Instead, there’s a union for Toyota workers and another one for Honda workers. Although the unions don’t shy from militant job actions – particularly when contracts are being renegotiated – they remain very loyal to the company. After all, increased profits and efficiency could mean higher wages. This loyalty is further enticed by Japanese firms offering jobs for life for their regular, full-time employees with a career track of promotions

Women are excluded from much of this framework. This is partly explained by the proliferation of temporary and subcontracted jobs that have been created to offset the costs of those well-paying lifetime jobs with an underclass of workers who just don’t count in the companies’ promises of mutual loyalty. But the reason that women more often fall into these substandard jobs is better explained by a patriarchal society that makes the U.S. look like some kind of working women’s paradise by contrast.

As Zacharias-Welch describes it, a female colleague is expected to pour tea for all of her male co-workers – no matter what her seniority or rank is in relation to them – before a work meeting will begin. Worse, when an employer feels an economic need to downsize a workforce that has been promised jobs for life, a supervisor might bully and orchestrate the social ostracization of a woman who refuses to voluntarily “retire.” The traditional enterprise unions rarely filed grievances to defend women’s jobs since they were politically dominated by men who believed that men need the jobs more in order to provide for their families.

It’s no wonder that some women decided to go their own way and form voluntary membership unions for women only. The members of the union join as individuals, not as collective groups. A worker would tend to join only when she had a grievance that the traditional union was not helping with or if she fell into any number of sub-contracted or temp work schemes that kept her out of union contract protections. The women’s union would provide advice and counsel. By threatening legal action over employer practices that were plainly in violation of laws that were routinely flouted, the women-only unions could force a recalcitrant employer to the table over a grievance. Theirs would not be the strongest hand. Lacking the legal power of the collective bargaining agreement and the collective power of the woman’s co-workers, most of these grievances would still result in a “voluntary” resignation, but also some financial compensation. In other words, workers who would otherwise have been totally screwed received a degree of justice and compassion.

Women who remained members of the women-only unions might do so openly and quit the official union. Many others chose to quietly pay dues to the women’s unions while retaining membership in the traditional union in order to go along to get along – a Japanese feminist slant on the American radical tradition of the “two card man.”

Lessons for America

An important point, and an instructive lesson for U.S. trade unionists, is that Japanese women’s shift from exclusive representation to a competitive union model didn’t come about through legislative reform, which is as difficult to achieve there as it currently is here. It was achieved by exploiting the very brokenness of the labor relations system.

Recently, over at In These Times, I participated in a roundtable discussion with Kate Bronfenbrenner and Labor Notes’ Chris Brooks about whether unions should abandon exclusive representation after the anti-union Janus decision.

In Janus, the five right-wing justices weaponized the First Amendment to outlaw agency fees in the public sector. They aim to bankrupt unions, who must continue to spend resources on workers who decline to pay union fees. At this point, our labor laws are completely broken. I have advocated that we break the laws even further in ways that will make employers regret ever tinkering with Right-to-Work.

If unions competed on the shop floor level for workplace leadership and dues-paying members, that would have the effect of making it much harder to achieve any kind of enduring labor peace and would make no-strike clauses basically unenforceable.

Dr. Bronfenbrenner warns, quite rightly, that what causes the so-called “free-rider” problem that has some unions thinking about ceding exclusivity is the Duty of Fair Representation:

Those of us who were progressives saw that Duty of Fair Representation was the best thing that ever happened to unions because DFR said that unions had to represent women, people of color, the LGBT community, and you couldn’t discriminate against part-time versus full-time [workers]. Historically it was used to force the old guard had to give up domination of unions and to fight for union democracy because the simplest basis of DFR is the concept of good faith. If used effectively, it would be the thing that could break the hold of the mob, or the old guard, or just white men. So you have to remember when you give up exclusive representation you could lose DFR. I can tell you that women and people of color are not going to want to give it up.

The feminist labor unions in Japan are evidence that backs up my contention that in a competitive union model, even without the statutory protections of DFR, some organization inevitably steps into the void and serves as the feminist or anti-racist union.

Lessons for Japan

The heart of Our Unions, Our Selves documents a transnational solidarity project that Zacharias-Walsh coordinated where leaders of the Japanese women’s unions came to the U.S. to learn about women’s union organizing strategy and experience before embarking on a series of strategic retreats to grapple with the challenges of their model.

To be clear: the Japanese women-only unions face serious organizational challenges. While individual women have won small measures of dignity and justice, these new unions – at least at the time that the book was written – have not won much power for women collectively nor established much of a permanent presence in many workplaces.

One major challenge they face is that most members stop paying dues shortly after their grievance is settled. The union leaders’ theory of change was that women who participated in prosecuting their own grievance would come away empowered and more active. Encouraged by their American sisters, the unions surveyed their current and former members and found that the opposite was true. The workers who joined because they had grievances were the least likely to remain members. The workers who joined to be a part of a social movement – as increasing numbers of younger women are doing – stayed for the long haul.

Part of this challenge is inherently Japanese. The women who founded the women-only unions intentionally embraced an individual membership model because they felt strongly that few women workers were ready to take charge and “act out” as unions with a more collective model must.

But part of this dynamic is sure to pop up if new alternative unions experiment with workplace competition in the U.S. The traditional or dominant union is likely to retain the loyalty of most workers in a shop, as they have the historical track record of wins in the past and as the official bargaining agent on record with a legal right to demand negotiations with the employer. Individual memberships in the alternative unions are more likely to be situational. Workers may switch unions – or become dual-card holders – when the alternative union is running a campaign that makes sense with a demand on the boss that resonates.

Imagine here a collective bargaining agreement that settles with no progress on paid family leave or child care allowances. The minority of younger workers for whom this is a major issue break away to campaign for it. That campaign could now include slowdowns and work-to-rule actions that are forbidden by the union contract they now claim not to be bound by. While there are actions taking place, and as long as they provoke any management response, that alternative union may retain a loyal militant minority. But as soon as the union takes a break from campaign, or picks a new issue that isn’t as important, it might see a decline in membership.

Now, this might read like the labor law version of a sci-fi spec script. We just won’t know how a multiple competitive union model might play out in the U.S. until someone tries it. But the Japanese women-only unions provide a reasonable example. Most importantly, they provide the most important object lesson here: They just did it. And after a few years of experimentation, they stepped back and engaged in the thoughtful introspection and strategic readjustment that Our Unions, Our Selves details.

[This post originally appeared at Unionist.com]