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Republicans Will Turn the NLRB into a Force for Union Busting. We Can Turn It Back.

Here comes the anti-union crackdown.

According to a recent Bloomberg report, Donald Trump has submitted the names of two anti-union lawyers to the FBI for vetting. This is a precursor to nominating them to the National Labor Relations Board (NLRB) by June to cement a Republican majority that will reverse many of the pro-worker decisions and policies that the federal agency has advanced in recent years.

Marvin Kaplan works for the Occupational Safety and Health Review Commission. William Emanuel is a lawyer at the union-busting firm, Littler Mendelson. Either of these garden-variety union-haters could have been appointed by Jeb Bush, John Kasich or whatever bland man in a navy suit the Republicans might have nominated if the reality TV star hadn’t bumbled his way into the GOP nomination and presidency.

On the potential chopping block are the board’s expedited election rules, the organizing rights of graduate employees and workers at charter schools, the rights of subcontracted employees to join their coworkers in a union, the ability of unions to organize smaller units within a larger enterprise and the culpability of a parent company for a subsidiary’s illegal behavior.

As inevitable as this right turn is for our nation’s workers’ rights board, so, too, should be our planned counterattack.

Don’t ignore the NLRB
Last summer, I wrote about the NLRB’s turn towards pro-worker activism. I noted that most unions were slow to notice the change and slower still to press an agenda of legal activism at the board. The next few years will demonstrate why unions tend to view the NLRB as a hopeless venue for workers’ rights and a place where organizing campaigns go to die.

There is a macho component to labor’s preference to organize and bargain without appealing to state intervention (even when voiced by women!). And it is absolutely true that if more unions adhered to an organizing model that prioritized organizing committees made up of workplace leaders, face-to-face conversations and escalating actions that challenge the boss’ authority that more unions would win without having to resort to the NLRB as an umpire. But even that kind of organizing would only bring a couple thousand workers into unions—the ones unions are currently spending millions of dollars to put organizers into the field to organize—not the tens of millions of workers that we need to organize.

The plain fact of the matter is that before the National Labor Relations Act (NLRA) was passed in 1935, unions only had an enduring presence in the coal and garment industries and a handful of skilled crafts. American employers have always fought unions with a fierce intensity. For crying out loud, Andrew Carnegie hired a private army to gun down his striking employees and their families! Unions need the power of the state to curb the worst abuses of corporate America.

And they do themselves no favors by not taking the NLRB as seriously as the right wing considers the board. The Wall Street Journal blared, “Don’t Ignore the Labor Board” in an editorial just four days after Trump was sworn in. The right’s think tanks and law firms spent eight years honing their anti-union agenda and the nation’s leading business paper was eager to implement it. I wish I could tell you that unions and their allies were devoting anywhere near the brainpower and enthusiasm to the subject of what the next Democratic-majority NLRB could accomplish.

Partly, this is a problem of institutional memory. When Bill Clinton took office in 1993, most activists could only recall the NLRB as being an awful adjudicator of workers’ right for the 12 years of Ronald Reagan-George H. W. Bush (and only kind of “meh” during the 1970s).

Take, for instance, the biggest missed opportunity of that period: restoring the legal right to strike. Employers in the 1980s blew the dust off of an obscure 1938 Supreme Court decision, called NLRB v. Mackay Radio & Telegraph Co., to legally justify firing and permanently replacing workers who went on strike. That decision contained two massive caveats: that an employer could not have union busting as its primary motivation for permanently replacing the strikers and that it would go out of business if it was not able to replace the striking workers.

The Reagan-Bush NLRB did its best impression of a fake wrestling referee and looked away, never seriously investigating an employer’s justification for hiring scabs to steal union members’ jobs. The AFL-CIO pushed a bill in the 1990s to restore the right to strike, but it was killed by a Senate filibuster. I am aware of no sustained effort by unions to convince a Democratic labor board to revert to the constitutional standard and force union-busting employers to prove that they’re not union busting and that they would go out of business if they couldn’t fire all of their striking employees.

Reversing the reversals and pushing forward
Late in its term, the NLRB under Barack Obama actually did issue a ruling that narrowed employers’ ability to hire permanent replacements because an employer was stupid enough to admit that its goal was, in part, to punish the union. That new standard is certain to be reversed or simply ignored by Trump’s NLRB. But it is an example of the kind of reform that unions should push the board to adapt in the first year of a Democratic administration.

Aside from restoring the right to strike, unions should push the next Democratic majority to move quicker to restore the Obama board’s policies and precedents. How many graduate students graduated out of the bargaining units they were organizing, waiting for the Obama board’s recognition of their rights? Given how nakedly partisan these actions have become, let’s just get it over with right away.

In terms of a proactive agenda, my favorite reform is to push the NLRB to re-establish an equal time rule for pro-union speakers if an employer forces employees to attend a mandatory captive audience meeting. Such a standard used to exist, and the NLRB is on record since 1966 as inviting unions to make a case that it should be restored. (Again, that pesky institutional memory caused a real blind spot.)

Another thought, while Yale graduate employees are fighting for recognition of the “micro-units” they won under Obama’s NLRB, is for unions to resume a vigorous pursuit of bargaining unit certification anywhere that enough workers want representation. As Charles Morris documented in his 2005 book, The Blue Eagle At Work: Reclaiming Democratic Rights in the American Workplace, the early NLRB used to certify minority unions as the bargaining agent for that union’s members only.

The directive that unions have to win majority support and must represent all workers regardless of their desire to be a part of the union was never the intention of the framers of the NLRA. But that burden has become a part of the system that traps us and restricts our growth and power.

Unions and their allies should be convening research teams to plot out a campaign of regulatory and judicial activism. That work should begin now.

[This article originally appeared at In These Times.]

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What the Big May Day Strike in a Small Pennsylvania City Teaches Us About Organizing

The first May Day of the Trump era saw scores of major actions in cities across the United States, but perhaps the most impressive demonstration of worker power took place in the small city of Reading, Pennsylvania. There, 127 stores—about three-quarters of the businesses in the city—shut down in protest, and an additional 500 mostly agricultural and construction workers participated in the general strike, according to organizers. The protest even spread to nearby Allentown, where two dozen more stores closed for the day.

Spearheaded by Make the Road Pennsylvania, a community group that organizes working-class Latinos, the strike was a protest of the county sheriff’s plan to authorize his deputies to act as immigration agents, in cooperation with the Trump administration’s assault on immigrants. While Berks County is one of the economically depressed areas that carried Trump to a win in Pennsylvania, the people of Reading are as unlikely to support his vision for “making America great again” as they are to agree that “America is already great.”

Although the majority of Reading’s residents are Latino, and another significant percentage of the population is African-American, Reading’s mayor and city council are almost entirely white, thanks to a combination of gerrymandering and the political donor class. That’s where the idea of hitting decision-makers in the wallet developed.

“No sales means no sales tax,” says Make the Road Pennsylvania director Adanjesus Marin. “Most of their revenue comes from the communities they’re attacking.”

According to Marin, organizers spent four weeks getting workers and businesses to commit to the May Day strike. Stores that agreed to participate had signs in their windows and flyers near their registers to make visible the growing movement. Many of Make the Road’s activists come from Central America, he says, and have experience in their home countries’ labor movements, so the idea of a May Day action was quickly embraced.

Although the international day of workers’ celebration and protest on the first of May originated in Chicago in the 19th century, for generations since the Cold War, Americans were more likely to associate the holiday with Soviet military parades than with workers’ rights. What May Day events did get organized were often small rallies for dozens of faithful dissidents.

Then, in 2006, May Day came roaring back with the first major “Day Without Immigrants” strike. More than a million immigrant workers and allies struck and staged major rallies to protest the last Republican president’s “get tough” posturing. May Day has been a day of activism and protest—sometimes larger, sometimes smaller—ever since.

As important as reviving International Workers’ Day is in the United States, the actions of Reading’s shopkeepers contribute to something even more essential: reviving the strike. Major work stoppages, those involving 1,000 or more workers, have declined by approximately 90 percent over the past four decades, according to the federal Bureau of Labor Statistics.

That period has been marked by a sustained anti-union offensive by employers. Beginning with the Phelps-Dodge strike in 1983, companies dusted off an obscure Supreme Court precedent that gutted the legal right to strike by taking away workers’ right to return to the job when the strike is over. Companies hard-bargained over pay freezes and benefit reductions, dared their unions to go out on strike and hired scabs to take the strikers’ jobs and vote the union out.

As a result, strikes today are seen by union leaders and members alike as very risky propositions, and job actions have declined accordingly. That is a problem that compounds itself. Our greatest power is still the work we do and our occasional refusal to do it. But if workers don’t see examples of other workers going on strike, what is going to get them thinking about their power and how to exercise it?

What are particularly needed are examples of work stoppages that don’t look like traditional union strikes. The majority of American workers want to be in a union, but our rigged system makes winning a legally certified bargaining unit damn near impossible. If the 90 percent or so of workers who don’t have a union are to protest to demand a better life, a strike is not going to look like bargaining to impasse, printing up picket signs and marching in a long line or a protest pen in front of a factory. But it could look like Reading’s May Day general strike.

Most of the businesses that closed—lunch counters, small grocery stores, cleaners—were single proprietorships or family businesses employing less than five people. “They don’t do better than workers who sell their labor in a traditional way,” says Make the Road’s Marin. Our nation’s labor laws don’t even treat most of them as employees who have rights; many are treated as employers under the law. But they are workers and their strike is an example of a bigger, broader labor movement that fights for more than just wages, hours and working conditions. A labor movement that stands up for the whole community, with the whole community, can inspire more workers to weigh and wield their power. Let Reading be an example.

[This article originally appeared at In These Times.]

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When Labor Fought Rock-and-Roll

Facing the world ain’t easy when there isn’t anything going
Standing at the corner waiting watching time go by
Will I go to work today or shall I bide my time

So begins the Kinks’ song, “Get Back in Line,” one of the most hauntingly beautiful paeans to the forced idleness and stress of unemployment ever committed to tape.

I’ve turned to this song for solace, a little too often for comfort, but I’ve always been discomfited by the refrain that follows.

‘Cos when I see that union man walking down the street
He’s the man who decides if I live or I die, if I starve, or I eat
Then he walks up to me and the sun begins to shine
Then he walks right past and I know that I’ve got to get back in the line

Is this just Ray Davies being a contradictory crank? He has, after all, written songs snarking about health prescriptions from government doctors (“National Health”) and complained “I was born in a welfare state / Ruled by bureaucracy” about his childhood experience of getting moved from an inner-city still pockmarked with unexploded Nazi bombs to a planned satellite garden community.

According to Davies, the song was inspired by a period in the late 1960s when the Kinks were prevented from performing in the United States, which he vaguely blamed on the musicians’ unions. The Kinks missed the summers of love and Woodstock, remaining behind in the United Kingdom. Due in part to that isolation, the Kinks are celebrated as perhaps the most quintessentially British of the British Invasion bands, one that put out songs about Queen Victoria and “little shops, china cups, and virginity” while everyone else was doing the whole “sex, drugs and rock-and-roll” thing.

But did the musicians’ union really “ban” the Kinks from America? If so, how were they ever so powerful? And what, if anything can modern labor advocates learn from this curious history?

The answer can be found in Tell Tchaikovsky the News: Rock and the Roll, the Labor Question, and the Musicians’ Union, 1942–1968, a recent book by Michael James Roberts about how the American Federation of Musicians (AFM) fought rock-and-roll as an emerging art form — and in the process, lost much of its power.

Roll Over, Beethoven

It’s almost impossible to imagine that a union of musicians could ever exercise monopoly power in an industry as complex as entertainment, but the AFM did so from the 1930s into the 1950s. One reason is that the industry was significantly less complicated; there were only a handful of major record labels, a few radio networks, and a finite number of concert halls. As a traditional craft union, the AFM trained and certified “qualified” musicians and forced the employers to get their musicians from the union’s hiring hall. Part of the strategy of a craft union is to try to restrict the number of workers to roughly the amount of available work.

So rock-and-roll was legitimately a threat to the union’s power, as it flooded the market with non-traditional musicians, and the cottage industry of independent labels and unconventional concert spaces that sprung up around the devil’s music undercut the union’s bargaining power.

The union’s own hostile reaction to rock-and-roll exasperated the problem.

Start with the AFM’s structural problem of not making room for rock musicians in the membership. As a craft union, the AFM needed to vouch for the professionalism of its members, who could, theoretically, get hired out to any union shop. One baseline standard of musical professionalism is the ability to read sheet music. Rock musicians, by and large, don’t. They learn by ear, playing along to records or just mucking about with tunings and electrical feedback in the garage.

To induct a rock musician who couldn’t pass the reading test would open the union’s hiring hall up to the risk of sending, say, Jerry Lee Lewis to sub in a Broadway orchestra and having the conductor send him back with the complaint, “This bum can’t play!” That might sound ridiculous now, but it was a significant structural barrier to the AFM keeping up with the times.

The format of high-fidelity records was itself a threat to the union’s power. In the context of radio stations filling their airwaves with pre-recorded classical music and big band swing rather than hiring multiple live bands every day, they are a job-killing technology.

In 1943, the union waged an impressive industry-wide strike to force the record companies to pay mechanical royalties to musicians who appear on records. But the union still wanted to limit the use of records on the air, and waged various campaigns to keep live music on the air.

But rock-and-roll is essentially a recorded art form. The records
that get put out into the world, whether on vinyl or MP3, become the definitive versions of the songs for fans, their happy accidents of studio noise, feedback, and weird pronunciation to be noted and obsessed over. The rapidly growing audience for popular music would accept no substitute for their favorite songs on the air.

Because the record industry was also slow to recognize the market for rock music, a lot of the early singles were produced by new upstart record labels like Chess, Philles, Stax, and Motown. Since the AFM refused to grant membership to many of the artists on those labels, the union missed the opportunity to organize them (despite the fact that those artists were, and still are, getting screwed out of their fair share of royalties). Today, most records are produced by non-union record labels that may nevertheless be distributed by the majors.

When rock music was recorded at unionized labels, the union’s collective bargaining framework treated rock bands more like employers than actual workers. The hiring-hall model assumed a producer or a big band leader assembling a full band of professional musicians. But a rock band can combine bandleader, songwriter, singer, producer, and the core musicians into one collective unit. Their need for the hiring hall was for extra musicians — a horn section or some strings — whom they are responsible for paying the union scale.

Rock music’s impact on the hiring hall is documented in the excellent 2008 film The Wrecking Crew, about the loose group of in-demand studio musicians who helped create a lot of famous songs in the 1960s. They were union members who stood out from the hiring hall crowd for their ability to transcend and collaboratively transform the music written on the page.

In order to specially request a musician, a band would have to also pay for the one whose number came up on the day’s roll. The film treats the idled musicians as objects of derision, sitting in the lobby in their navy blazers reading the newspaper while Carol Kaye is in the studio punching up the bass line to Sonny & Cher’s “The Beat Goes On.”

Union deals that call for workers to get paid for not working are notoriously hard to defend. Meanwhile, to this day, more rock stars turn up in the AFM’s database of employers than on their membership rolls.

Still, the story of the union isn’t solely about its role in preventing the emergence of new, innovative music. As many obituaries of the late great Chuck Berry noted, sometime in the 1970s he stopped touring with his own band. What’s less commented upon is that his contract rider spelled out that concert promoters had to hire a bassist, drummer, and piano player from the local AFM hiring hall. After all, how else could he be sure that they could really play (and that he wouldn’t have to bother negotiating a wage scale)?

We Love You Beatles, Oh Yes We Do

During the first wave of rock-and-roll, the musicians’ union mostly focused on professionally ostracizing the new breed of performing artists, and promoting cultural education for teenagers about the merits of classical and jazz music and the virtues of live performance. They also encouraged congressional investigations into the “payola scandal,” the elaborate web of schemes the upstart labels improvised to bribe radio deejays into giving their discs extra spins on the air (as if there was anything new or unique about corporations trying to buy their way to cultural dominance).

Payola and the variously coincidental airplane crashes, arrests, and military conscriptions of its biggest stars seemed to have put an end to the “fad” by the dawn of the 1960s. When rock music roared back to life with a British echo in the mid-1960s, the AFM gained a new more powerful tool with which to fight it: our nation’s immigration laws.

In order to work in the United States, British Invasion bands had to apply for H visas that required affidavits — subject to challenge — that there were no qualified American workers available to do the job.

“We can go to Yonkers or Tennessee and pick up four kids who can do this kind of stuff,” the AFM unsuccessfully argued to block the Beatles from reentry.

It’s true that to this day Paul McCartney can’t read sheet music, but the AFM’s legal argument was obviously a willful misreading of what “kind of stuff” the Beatles actually did.

While the union doubled down of their definition of professionalism and cultural merit, they sparked one hell of a backlash from teenage Beatlemaniacs. One emblematic letter from a San Diego teenager to the Secretary of Labor goes:

Please sir, what is the exact story on this? How will you determine whether there are qualified Americans when the Beatles request readmission? If you ask me or any other teen-age girl (and there’s a lot of us) there is no one who comes close to their talent, and we mean it!

Roberts includes a number of archival letters like these in Tell Tchaikovsky the News. As delightful as they are to read with 20/20 hindsight, they also point, Roberts argues, to the drift of labor from the Left.

The teenage girls and boys (of which there were many) who could not fathom a social movement that would try to restrict the free cultural exchange of the music they loved had a similarly difficult time understanding why the AFL-CIO was one of the staunchest organizational supporters of the war in Vietnam. By the time union building-trades workers were beating the shit out of hippie antiwar protesters in the “hard hat riot” of 1970, the cleavage was doomed to last for at least another generation.

In the end, the Beatles were a widely beloved cultural and capitalist force that the AFM was simply no match for. John Lennon may have sang, “The way things are going, they’re gonna crucify me,” but ultimately it was the Kinks that had to climb on that cross.

The key difference seems to be the Davies brothers’ penchant for onstage fisticuffs and their general surliness. The AFM managed to block the band from entering the United States from 1965 until 1969, essentially by arguing that they were dangerous aliens and that there were thousands of American workers who could do exactly what Ray and Dave Davies could do.

Only a schlocky Hollywood villain would try to prevent kids from listening to rock-and-roll, but in retrospect, that’s exactly the position that the American Federation of Musicians found themselves in.

In the labor movement, many organizers tend to assume that the way unions are organized and bargain makes sense because someone smarter than us evaluated all the options and decided on our present course as the best possible one. “It is what it is,” we shrug and tell ourselves. But maybe we should be asking something more along the lines of, “Are we trying to kill rock-and-roll?”

Also a Worker

On Super Bowl Sunday, Jacobin posted a simple tweet, “Lady Gaga: also a worker” (in response to a previous tweet noting that Tom Brady was a worker, though one badly in need of some basic political education). The account was promptly showered with dozens of negative and hostile responses from joyless and doctrinally confused leftists.

Granted, Gaga is rich and famous — a peculiar digital-age version of what Vladimir Lenin called the “labor aristocracy” — but she is a worker. Her art is the product of labor — hers and others’ — and I guarantee you that nobody involved in making her music and videos is receiving a fair share of the revenue that they generate for giant corporations.

As a result of the musicians’ union’s inability to adapt to the changes in the record industry, songwriters, bandleaders, rock stars, and pop icons like Gaga are not able to bargain collectively — a loss of power that reverberates down the chain of production.

The most notable collective action taken by recording stars in recent memory was an effort to create a streaming service to rival the bottom-feeding Spotify and Pandora, essentially asking fans to pay more for their music — not for the corporations to take less of a profit. And the most notable sustained effort by recording artists to gain more control over their working conditions, the Future of Music Coalition, is a 501(c)3, not a union.

One fantasizes about Beyoncé, Jay Z, and Daft Punk announcing instead that they were becoming charter members of a new AFM local dedicated to figuring out how pop stars could strike and boycott media conglomerates to wrest more control over what they’re paid, what they pay for, and who has final approval of their art.

Absent that, the American Federation of Musicians’ clearest pathway back to power might — irony of ironies — be through live music. Their defense of live music on Broadway, where they have members and contracts under attack, is one that generates a good amount of public sympathy. Who wants to pay a hundred dollars or more for a ticket to a “live” show and listen to canned music?

Meanwhile, recording artists who aren’t stratospherically famous make most of their money on tour. Notably, the number of concert venues in major cities is again becoming rather finite and increasingly owned and managed by chain employers like Bowery Presents. That’s the kind of concentration of ownership that can give a well-organized union real power under our current labor relations framework.

Rebuilding that power won’t look like the union’s 1943 strike, and it certainly shouldn’t look anything like the union’s approach to the dawn of rock-and-roll. But it also won’t happen by surrendering to forgone conclusions about how unions should be structured, conduct their bargaining strategy, or conduct their protests.

[Originally published at Jacobin.]

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Unions Are at Their Lowest Levels in Decades—To Gain Power We Must Stop Following the Rules

If Donald Trump’s first week as president wasn’t depressing enough, Thursday brought a report that showed union membership fell in 2016. Union members are now just 10.7% of the overall workforce and only 6.7% of the private sector. Those are the lowest levels since the Bureau of Labor Statistics (BLS) began tracking them in the early 1980s—and possibly the lowest since the 1920s.

Bosses and union haters will crow that unions are dying institutions and even our friends may write eulogies. But this funeral is for the wrong corpse.

What may be dying is the system of collective bargaining that developed in the years after World War II. That system is one where unions exclusively bargain on behalf of workers on a company-by-company basis, not just for wages but also for an ever-expanding portfolio of employer-paid benefits. These collective bargaining agreements emphasize peaceful resolution of disagreements through grievance procedures, mediation and arbitration and can cover many years at a time with guarantees of no strikes and lockouts.

When it worked, it really worked. The postwar period is marked by an historic rise in compensation and living standards for American workers and a sustained reduction in inequality. United Auto Workers (UAW) negotiations used to receive the same breathless news coverage that the stock market receives today. Wage increases won by the union affected the wages of even non-union workers in totally unrelated industries.

But there were problems with the system that made its downfall inevitable. The emphasis on employer-sponsored benefits meant that new companies could waltz in and instantly be competitive by offering their employees a stingier benefits package (and by fiercely resisting union organizing). This, in turn, drove unionized companies to outsource and subcontract jobs, or ship them overseas, to replace humans with robots and to overwork their existing employees to avoid hiring more workers. Arguably, such “labor-saving” measures account for much of the decline in union density in the last 30 years.

This collective bargaining framework also systematically sapped unions of their militancy. Congress made solidarity strikes and sympathy boycotts illegal. The courts stripped striking workers of legal protections. And, as labor scholar and activist Stanley Aronowitz convincingly argues in his book, The Death and Life of American Labor, the “no-strike” and “management rights” clauses of most collective bargaining agreements box unions into a position where they are restricted in what they can fight for and when. Most have a legal obligation to tamp down spontaneous worker protest while contracts are in effect.

We saw a dispiriting example of this when the union that represents the Rockettes rushed to issue a statement to emphasize the dancers’ contractual obligation to not refuse to work at Trump’s inauguration. Ironically, if the workers weren’t covered by a collective bargaining agreement, they would have had a far stronger legal right to refuse to dance.

Contrast that with the inspiring example of the New York Taxi Workers Alliance (NYTWA), which quickly organized a strike Saturday night at the John F. Kennedy International Airport to protest Trump’s anti-Muslim ban. The taxi workers don’t have collective bargaining rights so they don’t have a no-strike clause. (They also have few benefits or job protections and work long hours for very low pay; collective bargaining does have its benefits.) But even though the NYTWA is not legally certified, it still managed to build an organization that is nimble enough to strike for better pay and for human rights.

Toward a more perfect union

Because activists tend to conflate our legal rights with our actual human rights, we doggedly pursue age-old strategies because “it is what it is.” We must stop this, and pursue an internal debate that is crystal clear about what we can’t control at the moment—Congress, capital mobility and our psychotic president’s attention span—and what we can—our strategy, structure and demands.

Take for instance the fight for universal healthcare. One of the flaws of Obamacare was that it preserved the employer-based health insurance system, which was developed as an accident of collective bargaining. During World War II, the government froze wages to fight inflation, but did allow unions to negotiate for “fringe” benefits. Many workers emerged from the war with health insurance through their job, but union leaders at the time viewed this as a stopgap until Social Security could be expanded to provide universal healthcare.

All these decades later, unions can and should lead the fight for “Medicare for All.” Getting health insurance premiums off employers’ payrolls and replacing them with a payroll tax that all employers pay equally would take benefits out of competition (and get bosses out of the business of determining care and policing their workers’ vaginas).

I know a lot of leaders and activists who view the benefits negotiated into contracts as the “union advantage,” which makes membership attractive and is an essential part of what unions do. But offering a compelling vision of universal rights and leading fights to win and preserve them could also be what unions do, and is what unions do in most other industrialized nations in the West.

The ghost of labor peace

The threats that labor faces from a Republican government cannot be downplayed, and could tempt one into a depressive funk. A bill to make “right-to-work” laws the law of the land was introduced in Congress on Wednesday. But if we lose that fight, there are some strategic choices that are still within our control.

The first is whether to abandon exclusive representation and kick out the scabs.

The combination of exclusive representation and agency fee is a uniquely American framework, and it, too, arose out of World War II. That wage freeze described earlier followed unions’ no-strike pledge to aid wartime production. Workers who were frustrated with the lack of raises and with union leadership obliged with preventing job actions stopped paying dues in protest. The government granted those wartime contracts a “maintenance of membership” clause that prevented workers from quitting the union that represented them, which evolved into today’s “agency fee.”

It is that combination—of exclusive representation, agency fee and no-strike and management rights clauses—that make it possible (and arguably necessary) for unions to agree to “shared sacrifice” when necessary (and sometimes lopsided sacrifice when unnecessary).

This is a crucial point: Mandatory union fees are not the compensation that unions get for the costs they bear for bargaining and representing all the workers in the unit (although, those costs are significant). They are the compensation for the political costs of representing all the workers in a shop and maintaining labor peace.

If unions refused to be exclusive representatives, it would open the door to multiple competing unions at each workplace. It would make no-strike clauses impossible to enforce. It would mean that in every major issue that gets settled with the boss, there could be a stubborn group of workers who go its own way to keep up the fight or raise larger demands. It would also mean a plethora of less confrontational, employer-friendly associations could compete with unions on their own turf.

In essence, it would mean the end of labor peace. Since corporations long ago decided they weren’t interested in labor peace, while we maintained the illusion that we could convince them to give it a try, it might be time to give up the ghost.

A union of leaders?

Another key decision that would be entirely within unions’ power should membership become voluntary is which workers to target for recruitment. Currently, most open shop unions try to sign up all the workers they represent. Often, they fall far short of that goal.

When a workplace has few members, it makes the first union members de facto representatives, if not the actual shop stewards. But what if that early joiner is not respected by his coworkers? What if he’s a sexist? What if he’s bad at his job and his coworkers frequently have to pick up the slack? In its rush to pick up dues-paying members, a union could alienate 10 times as many potential people.

This is not how we structure new union organizing campaigns. In those, we target natural leaders. We look for workers who are brave, who ask smart questions, who are good at their jobs and respected by their coworkers. Often, the first worker to inquire about organizing a union, and from whom we learn as much as we can about the workplace and its leaders, is kept off the organizing committee because he doesn’t fit the bill.

This is a radically different way of viewing a unionized workplace for most Americans. It is essentially the way that French unions organize. Union density in France is even smaller than in the United States, yet unions there are capable of organizing massive general strikes. There are many reasons for that, including the legal framework for bargaining, but the fact that French unions are “leaderfull” organizations is also a factor.

We don’t control the legal framework for collective bargaining, but we can control who we count as members. And that kind of distinction between what we can’t change and what we can must be analyzed and sharpened.

Collective bargaining, with exclusive union representation and agency fee, but limited to within the four walls of a specific employer, is “what a union is” to most people. But it is not how unions look and function in other places, nor, indeed, in our own history.

Unions have been around since the earliest days of our republic, and the concept of workers banding together will outlive all governments. We get to decide what that looks like.

[This article originally appeared at In These Times.]