Our Political System Is in the Midst of a Massive Realignment. Here’s How the Left Should Respond.
America needs a New Democratic Party.
No, I don’t mean a Democratic Party made new by a restored commitment to liberal idealism (although that would be useful, too). I mean an American version of Canada’s NDP: an explicitly socialist party that can win on a regional basis, credibly compete on a national basis and actually win on issues that matter.
The leftist debate on electoral activism is depressingly reductive. It’s either be the “left-wing of the possible” within the Democratic party or immediately form a third party, as if we are not capable of sorting out complicated solutions for complicated times. We have a historic opportunity. Whether one realizes it or not, we are in the midst of a profound political realignment that could make a third party conceivable.
The right-wing realignment and its pull on the Democrats
A political realignment happens when the two main parties significantly alter their ideology and campaign appeal and in so doing shift their regional bases of support. They are rare. One happened when Roosevelt’s New Deal effectively wooed urban progressives away from the GOP, while preserving the Democrats’ traditional base of southern support (largely by avoiding black civil rights demands). For the next 36 years, the Democrats won seven out of nine presidential elections, and controlled the House and Senate for much of the period.
Nixon’s “Southern Strategy” tapped into reaction against the civil rights, women’s rights and anti-war movements and produced a new realignment. With the former Confederate states now solidly in the GOP column, and white working-class voters increasingly willing to cast reactionary votes for the party in the north, Republicans won seven out of 10 of the next presidential elections and have, since the mid-1990s, tended to control the House.
The Republicans’ crisis, and our opportunity, is that the party has been so captured by its base that it is circling the drain of national viability. The hateful, racist, misogynistic, xenophobic and just plain reality-denying rhetoric that the current crop of their presidential aspirants must use to pander to their troglodytic base makes them simply unelectable in a national contest.
Look at the demographics, as the Pew Research Center did earlier this year. The GOP alienates the majority of women voters, the vast majority of black and Latino voters and has all but lost the so-called millennial generation—voter groups that are an increasing proportion of the electorate.
More importantly, look at the so-called “big sort,” the geopolitical trend of people moving into or out of communities in order to be surrounded by more like-minded neighbors. Researchers James A. Thompson and Jesse Sussell found that the “big sort” is significantly contributing to the political polarization of Congress. Republican voters have created for themselves an echo chamber that goes beyond Fox News to include their like-minded neighbors. This contributes to the GOP reinforcing and doubling down on its extremism. It’s hard to imagine how the GOP can break this cycle any time soon.
Republicans can win—and win big—on a regional basis and implement awful policies. And to be sure, the Left should be concerned with keeping the Republicans out of national office. But the Republicans are going to do a good job of that themselves.
Meanwhile, the “big sort” leaves viable progressive majorities in our large urban centers and even entire states like California, Massachusetts, New York and New Jersey for the most part trapped in a Democratic party that will also continue to move to the right unless we do something about it. This realignment is pushing moderate and even conservative voters into the Democratic camp. There are, after all, plenty of stockbrokers and corporate executives who support gay marriage and immigration. The GOP is no longer a comfortable home for them—the Democrats are.
These progressive enclaves are increasingly a one-party political system, with the GOP’s carcass lying around as an empty vessel for whatever rich white guy wants to run a vampiric vanity campaign. And, sure, Republicans like Bruce Rauner and Chris Christie can win fluke elections when voters are so disgusted by the laziness and corruption of monopolistic Democratic machines that they stay home – or vote for nebulous “change”—in protest. But for the most part, there is a huge vacuum on the left in these progressive enclaves that should trump any tired liberal objections about “electability” and “lesser evils.”
An inside/outside strategy
What the Left needs is an inside/outside electoral strategy vis-à-vis the Democrats.
Inside the Democratic Party, engaged in primary campaigns to push progressive candidates and causes, because current election laws as well as fear of playing the spoiler mean that this is where we must focus out electoral energy for the time being if we are hold together the broadest possible coalition.
But outside in terms of being clearly delineated as something more specific: more critical of capitalism, more independent of corporations and more accountable to its base of supporters than being just another Democrat. And outside in terms of having a real plan to break with the Democrats and become a fully independent third party when the opportunity comes.
Inside/outside electoral strategies have long been incubated in New York state, where the law allows—and political realities demand—that candidates run on multiple ballot lines. Since 1998, the Working Families Party has been the preeminent inside/outside experiment on the Left. The WFP has an impressive track record of endorsing insurgent progressives early and backing them in the Democratic primary, as well as occasionally running a candidate in the general election against the Democratic nominee—a strategy that has put scores of new progressives in office across the state, culminating in the election of NYC Mayor Bill DeBlasio.
The Working Families Party has expanded to five more states plus the District of Columbia, although the inability to run a candidate on more than one ballot line makes the party’s efforts in those places somewhat less visible. In Illinois, unions like SEIU and the Chicago Teachers Union have formed an independent political organization called United Working Families, which supported Jesus “Chuy” Garcia’s insurgent challenge to Rahm Emanuel in Chicago’s technically non-partisan mayoral election. In Vermont, Bernie Sanders’ long run of successful independent runs for office has led to the creation of the Progressive Party, which represents over a dozen local, state and federal offices—a viable third party if ever there was one.
Add to that the various progressive caucuses in legislatures and councils—progressive Democrats and independents who work together to press their agenda within the larger Democratic caucus—and you have, essentially, an undeclared, disunited party within the party.
It is time to unite and declare it so.
What’s in a name?
What you stand for matters, but having a label and an identity of standing for the right causes matters perhaps more. Thanks to the realignment that is expanding the Democratic Party and turning it much more conservative, a “Democrat” can be anybody from Rahm Emanuel and Andrew Cuomo to Elizabeth Warren and Keith Ellison.
What the hell is a “Democrat” and what do they stand for? Without a clear distinction, a vote for a Democrat might as well be a vote for war, for police brutality and mass incarceration, for demonizing teachers and slashing pensions, for shipping jobs overseas and keeping the minimum wage low. An untapped constituency remains alienated from a progressive movement that suffers from guilt by association with the corporate Dems.
Further, a progressive Democrat—even one who runs with a Working Families-type endorsement—is susceptible to all of the pressure from party leadership for the corporate agenda that any other Democrat faces, with little accountability to a base of supporters that comes from public identification with a movement. Most people reading this can think of some maddening state legislator or alderman who’s only progressive when it doesn’t count.
Bernie Sanders jokes about how often he hears from supporters and constituents, “We always know how you vote, Bernie.” Because Sanders, famously, insisted on being registered in Congress as an “Independent,” even while he caucused with the Democrats, C-SPAN had to create a third “Independent” category for vote tallies, and so, yes, we all know how Bernie votes on an issue. As a result, Sanders’ voting record has been the most second guessed and debated by the left for a quarter century (even though there have been members of the House who were arguably to Bernie’s left).
By standing out as an “I,” Bernie was held much more accountable to the Left on a national level than any other Democrat. Working Families public officials need to stand out and caucus and have their votes recorded as “W,” not “D.”
Whether we settle on the name “Working Families,” call it the “Progressive Party” or borrow “New Democrats” from our friends to the north, we do need one name that stretches from candidacy to office-holding to everyday activism. And we need one party, coast to coast, that people join and pay dues, that has a national committee and that gets people in a room together in meetings, teach-ins, conventions and trainings.
What holds us back?
There is a regrettable deficit of trust when it comes to any sort of left unity effort. Movements unify when they are on the ascendency, which is not a position that the Left is used to being in. Plus, there is a long history on the Left of dissension, discord and split. Going bigger and broader brings the potential for the project to get out of control. And these efforts—United Working Families, the Progressive Party, the WFP—seem to be self-consciously designed to be small and manageable.
United Working Families is a good case in point. The organizers toyed with forming a chapter of the WFP, but ultimately decided to organize independently with complementary—yet distinct—branding. The WFP has since welcomed the UWF as an affiliate with seats on the national board. (What choice did they have? There’s no space for both organizations to operate in Chicago).
A united party would have to have a federated structure, with autonomous state parties and local clubs. But the resistance to the shared branding goes deeper than a structural concern. It can be read as a desire to not be tarnished by someone else’s mistake.
United Working Families was formed while the Working Families Party was grappling whether or not to endorse Gov. Andrew Cuomo’s re-election bid. The New Yorkers could have really used some tough love and advice from Chicago on the feasibility of cutting a deal with Cuomo. Regrettably, the Chicago organizers chose parochialism and keeping their distance over solidarity.
Another thing that holds us back is fear of playing the spoiler. Again, the value of an inside/outside strategy is holding together the widest possible coalition while we are inside the Democratic Party. To be clear, the risk of letting the now-far-right Republicans eke out a win if the center and Left were to split the vote in a general election is substantial. The Supreme Court, the right to choose, union rights and questions of war and peace are not to be dismissed lightly.
But a split must one day come. If the Republicans cease to be a major party in the northeast, on the west coast and in the major urban centers of the mid-west, and lose the next three or four presidential elections, then anyone who is still harping on about lesser evils or unity at any cost is probably simply not comfortable with a turn towards explicitly anti-capitalist politics.
I write of presidential election cycles because they are important epochal markers, not because we should fritter away our time debating when to make a break and run a Nader-style third party campaign. Look, I get it. Presidential elections are years when more working people actually pay attention to mainstream politics and vote, so what we do and whom we’re supporting is big and symbolic. But big changes in social outlook and political policy are ratified in presidential elections. The changes are made more gradually and much more locally. Our challenge for the next decade and a half is to run Working Families campaigns for legislature, council and Congress and win; to build up a base that makes for “safe” Working Families districts; and to build Working Families legislative caucuses that put real pressure on the corporate Dems.
Some of this can be accomplished, as the Progressive Party seems to have done in Vermont, through a degree of brokering. The Progressives build up enough of a base in a district that they hold the plurality, and the Democrats decide not to run a strong candidate against them. I presume that the Progressives agree in exchange to not make a hard run at a district where the Democrats hold the edge. In this way, a center-left split doesn’t have to be a 100% spoiler effort.
The ultimate split may, indeed, be signaled by an independent presidential campaign. I’m getting many years ahead of myself here, but let me suggest that the timing would only be right if our new party posed a credible threat of actually winning some electoral votes. Could we pose enough of a threat of throwing the election into chaos to extract meaningful election reforms—like abolishing the electoral college and instituting instant runoff voting—to make “spoilers” a thing of the past?
Our big challenge right now, though, is whether we are bold enough to actually get in a room and hammer out a program, a structure and a common name.
The Sanders presidential campaign is a very timely opportunity. Whether Bernie wins the Democratic nomination (still a distinct possibility) or takes his delegates and forces a convention fight over the Democratic Party’s platform, that platform will be the highest profile list of “Left” demands in generations. It will arouse the interest and support of many thousands times more working people than currently number in our tiny movement. What those freshly inspired potential activists will need is to see a party that they can join that will work past the election on winning those demands.
We have a historic opportunity in 2016. Shame on all of us if we don’t recognize the opportunity and capitalize on it.
[Originally appeared at In These Times.]
Friedrichs Is Dead; Labor’s Crisis Is Not. The ‘Scalia Dividend’ Is a Rare Opportunity for Unions.
The Friedrichs vs. CTA Supreme Court case, a nakedly partisan assassination attempt on the labor movement, has died with Justice Antonin Scalia. What cannot die with it is the sense of existential crisis within the labor movement. We need a far-reaching conversation about the pathway back to increased activism, membership and power.
Like few moments before it, the Friedrichs case sparked a broad consensus within labor that our movement faced an existential crisis and that business as usual was a prescription for assisted suicide. Unfortunately, too many union leaders and staff based out of Washington, D.C. are now at risk of being dismissed as a bunch of Chicken Littles who overhyped a sky that never fell by the people who have the greatest ability to determine labor’s future: the local leaders and disengaged members.
It was a mistake to use the Friedrichs case to forge this somewhat rare agreement that labor faces an acute crisis. It seemed like a long shot that the Supremes would even take up the case just a few months after rejecting Justice Alito’s wet dream of a public sector “Right to Work” standard by a 5-4 margin in last session’s Harris vs. Quinn case (I lost a lot of bar bets when they did). Even with the case proceeding to oral arguments, there was always the possibility that the Court would punt on the issue or even rule in favor of the unions for political reasons or that one of these old farts would die and the case would deadlock.
But labor’s crisis predated Friedrichs and will live on after it. The “Right to Work” agenda, and the gutting of public sector collective bargaining laws, will continue to be pressed at the state level. And if the general financial commitment and philosophical approach to new union organizing remains the same, union density will surely continue to decline.
Fortunately, until the Friedrichs case gets re-argued or stalemates in a 4-4 decision, labor remains a bit like Schrödinger’s cat: simultaneously getting murdered by the judiciary and in the midst of a possible resurrection. So there’s still time to harness the sense of crisis into a renewed commitment to radical workplace democracy and activism. And the “rainy day” savings that many unions made in anticipation of an adverse decision can now be used as a “Scalia Dividend” to be invested in new campaigns.
A pragmatic approach to Armageddon
Faced with a potential revenue loss of millions of dollars, international unions focused pragmatically (and conservatively) on cajoling their locals to sign up agency fee payers to full union membership. But that was merely a matter of mechanics—a pragmatic approach to the coming Armageddon. Where workers are exclusively represented by a union and already compelled to pay fees for the benefit of that representation, those that haven’t joined typically haven’t been asked. It is a problem that too many unions don’t make a face-to-face contact to new employees and ask them to join, but it’s hardly labor’s biggest one.
The actual crisis in labor is rooted in a framework that has turned unions into agencies for workers, instead of organizations of workers.
The legal obligation of the duty of fair representation forces unions to focus on grievances and contract bargaining while the Taft-Hartley law and contractual no-strike agreements strongly discourage rank-and-file worker protest. Too many members then develop a “what have you done for me lately?” relationship with their union that is vulnerable to a “give yourself a raise” campaign that deep-pocketed right-wing outfits can launch following the loss of agency fee, encouraging union members to stop paying dues or agency fees and gain a bump in their paycheck.
That is the crisis that has been largely unaddressed, or at least unsolved, even while unions have spent two decades genuinely trying to meet the charge from the AFL-CIO to “organize at an unprecedented pace and scale.”
Not to mention, while union supporters were dancing on Justice Scalia’s grave, the West Virginia legislature just voted to become the 26th so-called “Right-to-Work” state. How long can agency fee survive in the other half of the states?
So the crisis still exists in that declining union density leads to declining union power. The billionaire class still wants to kill us, and we don’t make a compelling case about why workers should risk their jobs and relationships to fight with unions that look like ineffective special interests.
One of the under-told stories of the last two decades is how badly, and often how subtly, the organizing model conflicts with unions’ business as usual. In order to win, organizers introduce a radical and inclusive democracy into workplaces. We recruit often large and unwieldy organizing committees of workplace leaders through whom all major decisions about tactics, timing and demands must go for deliberation and approval.
And then we throw these newly radicalized workers into local unions where leadership all too often feel a political need to control bargaining and messaging themselves, going off into backrooms to meet with management and come back with a “win.” This is an unspoken conflict between international unions—who feel the need to “organize or die” more acutely—and locals who too often receive new bargaining units as an unwelcome disruption.
Many organizers wanted to use Friedrichs as an opportunity to work through this conflict. Instead, panicked about potential revenue loss, the leadership of the international unions talked too much about “agency fee conversion” (shop talk for convincing union-represented non-members to join and pay full dues) and a single Court case that is now moot. The organizers caught in the middle could find themselves locked out of further conversations about labor renewal and change with locals that now feel the crisis has passed. They need to broaden the sense of crisis and bring newfound resources to the table.
The “Scalia Dividend”: Labor’s second chance to get it right
Many unions that had Friedrichs’ sword of Damocles over their heads have quietly been squirreling money away, by under-funding or delaying funding new campaigns and not filling vacant staffing positions. Which means those unions now wake up to a “Scalia Dividend”—an unexpected windfall of newly available financial resources for new campaigns and initiatives.
Unions can and should commit resources to comprehensive campaigns for new bargaining units—the kind of campaigns that have quietly ceased in recent years. These organizing campaigns should have an eye towards enhancing density in union strongholds like auto manufacturing, education and retail, but also for big public campaigns that could potentially inspire more non-union workers to take action.
What could go further in inspiring non-union workers to contemplate their power is to build on the internal organizing that’s been going on in anticipation of Friedrichs with contract campaigns. Meaningful member engagement—the kind that can withstand the loss of agency fee—comes from stoking workers’ desires for better pay and working conditions (even their less “reasonable” demands) and extracting sweat equity from them in the form of escalating actions. These campaigns should culminate in a plan to demonstrate, as Chicago Teachers Union President Karen Lewis has said that, “Our ability to withhold our labor is our power.”
We also need a new attempt at labor law reform. The fact that a workers rights bill has less of a chance passing Congress than Obama’s Supreme Court nominee shouldn’t make us say “Why bother?” Instead, it should inspire us to propose big, bold and meaningful reforms. Restoring solidarity rights, rooting unions’ collective actions in the First Amendment, outlawing “Right to Work,” banning permanent replacement of strikers—put it all on the table.
God forbid we do manage to spark the kind of mass strike wave that panics the billionaire class into throwing workers a few bones. What would we win for our effort? Card check? The AFL-CIO should convene an open call for legal reform proposals and put a new “Right To Your Job” bill on the record and on the lips of our members and allies.
The erstwhile House of Labor should also convene a wide-ranging strategic retreat for local leaders, rank-and-filers, staff, academics and activists that treats no idea as unwelcome or unthinkable. The recent petition filed by 106 leading labor scholars in response to a question on union access to mandatory captive audience meetings left open by the NLRB (and promptly forgotten by union organizers) for 50 years highlights how badly labor needs more and different perspectives brought into the conversation. The poor souls who have spent the last few months poring over organizing databases, wall charts and lit pieces in anticipation of the Friedrichs decision need some fresh air and some new people to talk to.
Unions are no longer facing a multi-million dollar hit in June. We can give the bunker mentality a break, but we can’t pretend that we’re in the clear. There aren’t a lot of second chances in life. Labor must not squander this one.
[Originally appeared at In These Times.]
With 3 Recent High-Profile Walkoffs, Is the Wildcat Strike Back?
Three high-profile wildcat strikes have caught business watchers and union leaders by surprise in recent weeks. Could they be bellwethers for a rising tide of worker militancy?
A wildcat strike is one that occurs with little notice or legal sanction. Wildcats are often organized in violation of a contractual commitment not to strike or a legal prohibition to do so, and in defiance of both the employer and official union leadership. Non-union workplaces wildcat by striking without formally certifying or affiliating with a union.
Wildcat job actions have sparked some of the largest strike waves and union gains in American history, and the revitalization of the 21st century labor movement will require a degree of worker organizing that is not dependent on union staff and resources. So spontaneous job actions merit attention.
The sudden return of the wildcat
Longshoreman at the New York and New Jersey ports launched a classic wildcat strike on Friday, January 29, catching the Port Authority, the Shipping Association and their own International Longshoremen Association totally unaware. The strike, which cost businesses that rely on the ports to ship goods in and out of the country hundreds of thousands of dollars in a few short hours, was apparently in protest of a government agency, the Waterfront Commission of New York Harbor, imposing new job requirements on top of and outside the bounds of the longshoremen’s collective bargaining agreement.
The walkout seems to have been a genuinely spontaneous action, sparked and spread within a few short minutes and over by nightfall. Industry observers are still scratching their heads at what it all meant, and whether it will happen again.
The following Monday, NYC-based drivers for the controversial “rideshare” app, Uber, began a 24-hour work stoppage and staged a rally outside of the company’s local headquarters. The tech firm is notorious for its questionable legal practices of treating its employees as “independent contractors” and often operating outside of taxi and limousine regulations in order to undercut traditional yellow cabs and car services. Drivers struck in protest of a 15% reduction in Uber’s fares, a cost that they alone must absorb.
While planned at least a day or two in advance, this wildcat strike was organized by an informal network calling themselves “Uber Drivers United,” according to the homemade fliers they handed out (although some coordination with the Taxi Workers Alliance has been noted). Uber was designed by its Silicon Valley founders to “disrupt” traditional work rules and regulation and to definitely be union free. The strikers are not demanding union recognition in the modern sense, but simply demanding a rollback of the wage cut.
While the smug business press scoffs (Fast Company said of the strike, “The irony, of course, is that by taking a slew of drivers off the road, the strike actually serves as a good opportunity for other drivers to profit from surge pricing, the fare increase that Uber imposes when demand is high”), the protests could spread to other cities.
Earlier in January, a faction of Detroit schoolteachers led by former Detroit Federation of Teachers (DFT) president Steve Conn staged a wildcat sickout over the abhorrent physical conditions of the school buildings that forced 64 out of 97 schools to close. Conn’s group is exactly the sort of alternative competitive union that I have predicted will become the norm if unions embrace non-exclusive members-only organizing.
Conn, a polarizing perennial opposition leader, eked out a narrow win for president in a low turnout election in January of 2015. But he failed to carry his slate in the union’s executive board elections and seemingly made little effort to unify the union around his agenda. An unpopular attempt to disaffiliate the DFT from the national American Federation of Teachers resulted in his removal from office eight months later. (Full disclosure: I am a former organizer at the AFT.)
Conn has since tried to decertify the DFT in favor of a new union he calls the Detroit Teachers Union. The sickouts over the crumbling infrastructure and lack of investment in Detroit public schools was his group’s attempt to vie for shop floor power. In so doing, Conn may have found his true calling as the leader of a proudly independent militant minority union.
As far as I can tell, most Detroit public school teachers retain their loyalty to the DFT, even if many were willing to take part in the frankly long overdue protest. The DFT, of course, had to denounce the action. They signed a contract with a no-strike clause, Michigan public sector law makes any strike illegal and the viciously right-wing state legislature is seeking retribution via a bill that would decertify any union that allows a wildcat strike to happen.
But the AFT has embraced the issue, if not the wildcat tactic, and successfully connected the deplorable condition of Detroit schools with the poisoning of the children of Flint as a national scandal that naturally follows from electing the GOP equivalent of Immortan Joe to run a once-functional state government.
A bellwether or a fluke?
The U.S. labor movement has historically grown in incredibly short and intense periods of activity, and then slowly declined in the interim periods. All of these periods of growth corresponded with a mass strike wave (although not every mass strike wave—of which there have only been about seven or eight since the Civil War—has resulted in membership growth for unions).
Most American strike waves have been led from below. Many began with wildcats that were unplanned or even opposed by union leadership. When conditions were right, union leaders swooped in to take charge of the actions and cut peace deals with the bosses that led to measurable gains for the working class. This is a healthy—and missing—dynamic in the labor movement.
Arguably only two of the great strike waves were planned and led by unions. One was the post-WWII wave of strikes that saw demands for a better quality of life, long-delayed by war and depression, finally begin to be realized. The other was the wave of strikes for union recognition in the public sector in the 1960’s and 1970’s.
Those are examples of union leadership recognizing and harnessing genuine rank-and-file militancy and winning big. Because they are two of the most recent strike waves, they have left an outsized psychic impression on our movement as well as the residual magical thinking that if only Richard Trumka or [insert your favorite union leader to complain about here] would snap his fingers and call for a general strike, then labor would be restored to its rightful position of power and influence.
This is both ahistorical and betrays a lack of awareness of labor’s current state of organization.
The best that the presently existing unions can do is prep for job actions that can serve as an inspiration to even non-union workers and have a decent shot at winning. The once and future Chicago teachers strike, Fight for 15 and Bargaining for the Common Good are the best contemporary examples of the kind of union leadership that’s needed.
In response to my last piece on labor’s ultimate weapon, historian Erik Loomis writes, “The real lesson of studying strikes is that they can serve as a great window into their time. Sometimes they are aspirational, demanding and winning real changes in the lives of workers.” He points to the sit-down strikes that organized General Motors and the Lawrence Bread and Roses strike as examples of aspirational strikes. (The two planned strike waves I cite above also fit the bill.) “Other times though, what strikes really tell us is that workers are desperate,” and their strikes represent “last-ditch efforts to save what they once had.”
All three of the wildcat strikes highlighted here certainly have an air of desperation about them. With workers rights under attack and middle-class living standards increasingly out of reach for most, desperation is likely to be what inspires militancy in the short run. The key, I think, is for workers to at least feel some agency in their struggle against descending into a worse life, if not actually winning a better one.
And, for better or for worse, the workers who took part in these three wildcat actions do come away feeling more powerful because at least the action was their decision and their protest. Each action clearly caused the employer some discomfort, which is in turn some comfort to the activists who took the risk. And that small win, one hopes, did not go unnoticed by other workers who are now fantasizing about how to ruin their boss’ day one day.
[Originally appeared at In These Times.]
Could a New NLRB Case Limit Bosses’ Best Anti-Union Tool, the Captive Audience Meeting?
The captive audience meeting, “management’s most important weapon” in an anti-union campaign, is finally being challenged in a petition to the National Labor Relations Board that could help re-balance the scales in union representation elections.
Held in all-staff, small-group or one-on-one formats, employers use these mandatory meetings to confuse and intimidate employees into voting against union representation. In a 2009 study, labor relations scholar Kate Bronfenbrenner found that nine out of ten employers use captive audience meetings to fight a union organizing drive. Threatening to cut wages and benefits in 47 percent of documented cases, and to go out of business entirely in a staggering 57 percent, these captive audience meetings correlate with an unsurprising 43 percent union win rate when used.
Such meetings were illegal under the original National Labor Relations Act. The courts eventually decided that as long as a boss’s threats were merely implicit, it would be a violation of his putative “free speech” rights for the Labor Board to restrain their ability to make his obvious opinions unavoidable. (The courts still love to use “free speech” as a justification for union-busting; Friedrichs v. CTA, the case that could decimate American public sector unions currently before the court, is a claim of infringement of free speech.)
I recently advocated for an “equal time” provision, that any mandatory on-the-clock discussion of an upcoming union certification vote make room for a pro-union presentation, be incorporated in a new labor law reform bill. But these petitioners to the NLRB—106 of the leading labor-side and neutral-party experts on labor relations (the boss’ lawyers couldn’t bring themselves to endorse the need for fair debate, for some reason)—realized that “equal time” could be made a regulatory rule right now.
“Captive audience” meetings: not always the norm
Equal time was a rule, briefly in the 1950’s, and the NLRB is on record as inviting unions to ask for it to be restored since 1966. After the 1941 Supreme Court decision that established a boss’s First Amendment right to pummel his employees into anti-union submission, the NLRB spent the next quarter century ping-ponging back and forth between different legal standards on employer speech, union access to the employer’s property and the so-called “laboratory conditions” (basically, some fantasy world in judges’ imaginations where workers don’t feel threatened, bribed or uninformed) under which a fair election can be conducted.
In a 1966 case, General Electric Co. and McCulloch Corp., unions petitioned to overturn election losses caused by the employer’s combination of mandatory captive audience meetings and restriction of union organizers from the employer’s premises. The unions essentially sought to reestablish the equal time rules of the 1950’s. The Board declined to do so—but only conditionally and tentatively.
Their reason: on the very same day, the Board handed down a decision in a case called Excelsior Underwear, Inc., in which employers were mandated to hand over to the union a list of home addresses of all bargaining unit employees within a certain number of days of the scheduled election. The board declined to rule on the equal time complaint in General Electric “in light of the increased opportunities for employees’ access to communication which should flow from Excelsior, but with which we have, as yet, no experience.”
Several generations of union organizers now have experience with Excelsior lists. Chasing around a bunch of workers in visits to home addresses that are frequently incorrect after the boss has been free to spend an unlimited number of hours in mandatory meetings scaring the crap out of them is no substitute for having an equal amount of time at work during the workday to make the case for a “yes” vote for the union.
Why didn’t unions appeal the General Electric decision in 1967 (or 1977) after enough experience with the new Excelsior rules? The answer is probably that organizing was not an institutional and strategic priority for most international unions until John Sweeney became President of the AFL-CIO in 1995 with a promise to “organize at an unprecedented pace and scale.”
Regrettably, the organizers who recharged the union organizing departments in the mid-1990’s mostly accepted the legal rules as presented. And those of us who followed in their footsteps, myself included, mostly did the same. There is a pervasive tendency in our movement to accept that when it comes to labor structure, strategy and law, “it is what it is”— the horrible structures of American collective bargaining rules are a given and we don’t have much opportunity to change them.
Three reasons to cheer “equal time”
But this new rule, while a narrow tweak of an otherwise broken law, would be a big deal if adopted by the NLRB. First, because it would cause many employers to abandon the captive audience tactic altogether rather than make time for organizers to state the case for forming a union on the company’s premises and on the company’s time. Since these meetings are one of the boss’s principal tools for beating unions, that’s a good thing.
Other employers will likely continue the captive audience meetings and simply refuse to comply with the equal time requirement, since the only punishment for violating the rule would be a rerun election. This will particularly be the case while the new rule is inevitably challenged in the courts. In my experience, the new expedited election procedures that the NLRB instituted last May—which have increased both the number of union election petitions filed and the percentage of elections won by unions—have made employers more likely to engage in brazen violations of the Act in order to win delays before the union election. Determined to “win” at any cost, they have less fear of unfair labor practices and rerun elections, because while the legal bills will add up, at least they get to impact the election timeline.
Still, ULPs and grounds for overturning unfavorable elections, while hardly justice, are useful chips for organizers to hold. These things cost bosses money and credibility and can serve to help wear down an anti-union employer in a long-term campaign.
But the best possible outcome may come from the employers who embrace the equal time rule, thereby forcing unions to up their organizing game.
If the NLRB adopts the new rule (which is, to be clear, still a big “if”), they will almost certainly limit equal time to members of the bargaining unit only—not organizers and leaders on the union’s staff. Since intimidation is the point of captive audience meetings, some employers may assume that they can cow their own employees who stand in as union representatives.
What is needed are workers who can speak confidently and definitively on behalf of their fellow workers, in statements of “we” and “us.”
Despite the ample research that representative organizing committees are an essential component of successful campaigns, too many unions gloss over real committee building, run quick card drives and conduct too much of their contract bargaining in degrees of opacity. This is why too many organizing campaigns fail.
Take, for instance, a favorite topic of employer captive audience meetings: strikes. The boss’ message will inevitably be the union will make you go on strike. This is a double whammy of the boss’ real “most important weapon”: fear.
Fear, foremost, of the boss’ power. If the boss decides an anti-union presentation is a more important use of your time and his money than the actual job that you were hired to do and makes him money, shudder to think about what he may decide to do with your job if you defy his anti-union will.
But fear, also, of losing agency by submitting to the authority of “union bosses.” Who wants to run the gauntlet of employer opposition to workplace democracy only to find out that your union might jam decisions down your throat like the old boss did?
Imagine a well-trained and empowered workplace leader responding to the boss’s provocation with the calm explanation, “We would only go on strike if we wanted to, and had to, and if we could win. And we can only win if we all walk out together. I don’t know about you, but I would only strike for a damn good reason.” In one short breath, the boss’s message is blown away, and the workers are weighing the source of their power.
An uphill climb
The NLRB has recently issued a number of rule changes that have helped restore a degree of neutrality to workplace law. These have been extremely controversial in business circles. The Board also has issued weighty decisions regarding the ability of university graduate employees to organize and clarification on charter schools as private employers queued up for further controversy this spring. Plus, Board members who only got appointed through a rare bi-partisan deal will start seeing their terms expire this summer when an election-season Congress has little incentive to work together on approving their replacements.
All of which is to say, don’t hold your breath for a speedy response to this equal time petition.
After all, primary petitioner Charles Morris, author of The Blue Eagle At Work, has seen his petition on minority union certifications go unanswered for over a decade. His co-primary petitioner, Marquette University law professor Paul Secunda, says they understand the uphill climb. He says they filed, independently of any unions, simply to get the conversation going.
“We just want a fair vote. That’s all,” Secunda says.
If Morris and Secunda’s idea gains any traction in union circles, its fastest path to a ruling may be by a union appealing to overturn an election loss in a campaign where management locked out the organizers and conducted captive audience meetings. Unlike a petition, the NLRB would at least have to respond to such an appeal.
And there’s no shortage of grounds for appeal. Ninety percent of all union election campaigns see employers utilize captive audience meetings and more than half of those see workers directly threatened with job loss resulting in more than half of all union elections where employers subject workers to captive audience meetings. I suspect many union staffers and members reading this have a lost union election campaign near and dear to your heart that could be appealed on the grounds that Morris and Secunda lay out.
Still, Morris and Secunda’s effort highlights the value of bringing outside perspective into union strategy. While many unions are understandably focused on beating back the Friedrichs v. CTA assassination attempt and on practical efforts to sign up agency fee payers to union membership, there is a bad need for a no-holds-barred strategic dialogue on the future of labor. It would be wonderful if the AFL-CIO could formally convene it, but it clearly would need one or more of our great labor colleges to pull it together. When it comes to revitalizing the labor movement, there might not be a lot of new ideas, but there are clearly lots of good old ideas that we’ve somehow forgotten.
[Originally appeared at In These Times.]