Category: Blog

Chris Brooks has an excellent piece in the new issue of New Labor Forum that grapples with the question of whether unions should cede exclusive representation if the country goes “right-to-work.” As the title of his article, “The Cure Worse than the Disease: Expelling Freeloaders in an Open-Shop State,” suggests, he’s against it:

Ceding exclusive representation to “kick out the scabs,” as Richman would have it, might be okay for a high-functioning local with high union density, but a union with 60 percent membership is likely to create an entrenched, adversarial minority. A union representing Geoghegan’s “40 percent, or 30, or fewer” can easily succumb to being nothing more than a marginal minority. So long as unions are treated as third-party vendors of services, as Fisk and Sachs describe them, then it will be easy for yellow unions to provide the same insurance, professional development, and discounted movie tickets at a lower cost.

Members-only unionism might be a solution to the free-rider problem that unions face in an open-shop environment, but it is not a solution for the internal divisions between workers that unions must overcome if the labor movement is to grow. The labor movement is at its strongest when it is capable of fighting for all workers as a class, living up to the old refrain “an injury to one is an injury to all.” By advocating for members- only unionism, labor activists run the risk of unwittingly weakening the labor movement by narrowing the scope of union solidarity to a smaller grouping of dues-paying members and setting the stage for yellow unions to pit workers against one another and create further divisions. If the source of a union’s power is the ability of workers to take collective action on the job, then the Tennessee experience high- lights the struggles that confront an increasingly divided and weakened labor movement.

Brooks draws on his own dispiriting experience with multiple (right-wing, boss-friendly) competing unions in the school systems in Tennessee, and engages with some of my writing on the question. I feel like my thinking on the matter gets a bit lost in translation, but it’s my own fault. I’ve been too cute with the subject, dealing with it in asides that mostly avoid firmly advocating anything at all.

Partly that’s because I think the union shop is worth defending right now. While I’m playing with thoughts of what we should do if we lose it, I don’t want to appear as if I’m rooting for the loss of agency fee and the chaos that should follow it (Even though I tend to agree with Brooks that “The United States is likely to be an entirely open- shop country in the near future.”).

I do think unionists need to study our history and other countries’ labor movements. We should realize that our combination of exclusive representation at the enterprise level, the union shop and the duty of fair representation is historically and globally bizarre and the product of a series of accidents – not a strategically pursued model. It works when all of the pieces are in play. But if you knock anyone of them out, as “right-to-work” destroyers seek to do, then the whole system becomes unworkable. That unworkability is initially and acutely felt by the unions, which makes it incumbent on us to spread the pain and blow the whole system up if the union-busters win a national “right-to-work.”

One day, when I’m not promoting Labor’s Bill of Rights, I’ll deal with this subject at length. I’ve got 10,000 semi-abandoned words just dealing with how the current U.S. labor framework accidentally fell together waiting to be dusted off. In the meantime, I did want to quickly respond to Chris Brooks’ very good piece.

First of all, he’s right that when I write about this, I’m thinking of a high-functioning private sector contract. What I’ve studied most are the unions of the NYC hotel industry in the 1920’s and 30’s who competed for strike leadership every few years and drove the industry so batty that they eventually voluntarily recognized a merged union in 1939 to buy themselves some peace. I don’t think that the public sector in the south is the place to start an experiment like this.

But, I’ve also been very clear that if unions cede exclusive representation that other organizations will step into the space they’ve ceded and that those are likely to be company unions and right-wing outfits at first. My first piece for In These Times was actually on this subject. I was responding to a piece by Moshe Marvit that advocated organizing new “members only” bargaining units to side-step the rigged NLRB election process and win a union for the workers who want them. I thought it’s a fine idea but that we should all be clear that that would inevitably lead to multiple competing unions:

If labor cedes exclusivity, we can expect more independents like ACE to fill the void. We should also expect the Horseshoers and Hod Carriers and the whole cottage industry of corrupt unions that were long ago thrown out of the AFL-CIO for unprincipled raiding to troll around for disgruntled dues payers. And nobody should be surprised if Koch brothers-funded, States Policy Network affiliates like Michigan’s Mackinac Center shop around the legal and member benefits services of new, explicitly anti-union “unions.”

But the hope here is that eventually other real unions rise up to challenge each other for shop floor leadership in terms of who can pick the right issues, the best fights and lead the best protest actions. Here is where my point gets a bit muddled in Brooks’ re-telling:

Shaun Richman imagines a future in which employers bargain multiple contracts with separate unions representing different workers in the same workforce, creating the conditions for union competition and employer “chaos.”

I’ll be clear here: in a model of multiple unions competing in a workplace, the best case scenario is one contract for the unit. More likely is that this is a contract-less labor world where unions demand to bargain over changes in working conditions on a rolling basis. Now, I’m assuming here that the Unfair Labor Practice protections of the National Labor Relations Act remain in place (And that is a fairly major assumption in a right-to-work world where unions lose perhaps half of their membership and power in a few short years). That would mean that employers still have a duty to bargain “in good faith” with a union that demands it, and that an employer cannot discriminatorily apply work rules on the basis of union membership.

So, if one union raises an issue – a wage increase, a work quota reduction, etc. – and wins it, that settlement would have to be applied to all workers in the bargaining unit. And if a different union regards that settlement as a sell-out and continues to agitate and organize around it and somehow wins a better settlement, that would have to replace the old settlement as the new work rule for the entire unit.

In this scenario, I imagine that most unions will still see it as advantageous to seek a signed collective bargaining agreement, and that some employers might view signing one with a strong workplace leader as temporarily advantageous for getting a degree of peace. If they sign a deal, they’ll find ways to not negotiate with other unions during the terms of the agreement while the other unions spend the meantime shitting all over the deal to jockey for workplace leadership in the next round of bargaining.

With me so far? I feel like I’m writing the labor law equivalent of a sci-fi spec script.

Here, I think, is where the potential for chaos comes in to play. Those other unions? The ones that hate the contract and are organizing against it? Does the “no-strike” provision of the contract apply to them? Why? They’re not members of the union that signed it. That union made a promise to keep its own members from striking, with the enforcement mechanism being that any member who is a party to the agreement has signed off on the non-grievability of terminating someone who strikes during the term of the agreement. I think this would be the effective end of “no-strike” agreements, which have been one of the greatest inhibitors to labor militancy in the last half century.

The other major potential gain here is also where I think this experiment is more likely to get carried out: in new organizing. The loss of agency fee really ought to make unions ask themselves why they are losing elections at the NLRB to vie for the obligations of representing all of the workers in a bargaining unit with no promise of compensation for the political costs and the loss of resources. Back to that first In These Times piece:

Charles J. Morris, in his 2005 book The Blue Eagle at Work, reminds us that in its first few years, the National Labor Relations Board (NLRB) used to certify minority unions as the bargaining agent for that union’s members only, and that such a mechanism still exists (although the modern Board has dodged efforts to get a ruling to respond to Morris’ assertion).

The employers’ preference to deal with somewhere between zero and one unions has been enshrined in the legal preference for exclusive representation. As well, the civil rights thrust of the duty of fair representation make going back to members only certifications a steep hill to climb (made steeper still by the current occupant of the White House). But the loss of the union shop is an opening for unions to argue that the trade-offs are unjust and unsustainable and that the law should return to what we needed it to be in 1935: a guarantee that anywhere a group of workers have joined together as a union, the employer must deal with them as a union.

We don’t know where our breakthrough opportunities are going to arise. How we respond to and exploit anti-union legal pushes is within our control and where some potential for good change occurs. We’re not talking about “curing” an unjust “right-to-work” push; we’re talking about how to make the open shop onslaught cost the bosses in ways they never anticipated.