Category: Published!

As unions file their legal briefs in the epic Friedrichs vs. CTA anti-union Supreme Court case, one clever legal scholar argues that Friedrichs is “an unexpected tool for labor.”

University of Chicago Teaching Fellow Heather Whitney’s forthcoming paper in the NYU Journal of Law and Liberty makes a compelling case that an adverse decision in Friedrichs would hand unions a first amendment argument to refuse to represent non-members. And, as I have argued, that is a roadmap to union competition at workplaces, competing demands on individual employers and the end of contractual no-strike agreements.

Chaos, in other words—and just the sort of chaos that this attack on unions deserves in response.

Friedrichs and labor’s response

The First Amendment is at the heart of the Friedrichs case. It is a right-wing argument that public sector employers (in other words, the government) violate individuals’ First amendment rights by compelling employees, through contracts negotiated with unions, to pay a fee to a union. Currently, unions that are certified to represent a group of employees in a bargaining unit are legally compelled to represent all of the employees in that unit. That means not just bargaining on their behalf, but expending significant resources on grievances, meetings, communications and everything else that goes into running a union.

But union membership, including the payment of dues, is completely voluntary. That’s why unions negotiate agency fees into contracts. These fees are calculated through complicated formulas to only represent the true cost of bargaining representation. Agency fees do not pay for things like political activity (unions usually have separate voluntary political funds).

But the Friedrichs case argues that any interaction that a union has with the government, including bargaining, is inherently political. Agency fees, therefore, are compelled political activity.

This ridiculous argument is only before the Supreme Court now because Justice Samuel Alito inserted the issue into last year’s otherwise unrelated Harris Vs. Quinn case. That case was only a partial defeat for unions, as Alito lacked the fifth vote to totally do away with agency fee in the public sector. In his written decision, Alito basically solicited for someone to bring a case with exactly Friedrichs’ set of facts, and it has raced up to the Supreme Court. This is the stuff of a vast right-wing conspiracy.

Unions have mounted an excellent legal case, backed up by a broad array of supporting briefs. A ruling against the unions would reverse a 37-year-old precedent. The Supreme Court is supposed to be guided by the principal of stare decisis, which is essentially to let long-settled precedent stand. And finally, the case will be decided in the middle of a presidential election that is already turning on questions of inequality and workers rights. In his handling of the Obamacare and gay marriage cases, Chief Justice Roberts has shown that he does seem to care about his legacy. Would he support such a nakedly partisan political move by his Court in this election cycle?

So, on the facts, on the law and on the politics, unions really ought to win this case. And, to be clear, agency fee and exclusive representation are worth defending. They create the conditions for tremendous worker power at workplaces that have both.

But if unions lose agency fee, then exclusive representation no longer makes sense. This is not simply because of the free-rider problem that will drain union resources. It is because exclusive representation is essential to labor peace, and a Friedrichs ruling that guts union rights is the clearest signal that the billionaire class does not want—nor does it deserve—any kind of peace.

Labor’s First Amendment rights

If the Supreme Court rules that every interaction that a union has with its government employer is inherently political, Heather Whitney argues in her article, then that would open the door to unions claiming their own First Amendment right—to choose who they represent. In other words, if agency fee is compelled speech, then the duty of exclusive representation imposed on unions is also compelled speech.

Imagine a group of registered nurses at a public hospital who want to bargain for much larger raises than the rest of the members of the bargaining unit. Or imagine a group of young workers who want to bargain away pensions in exchange for larger salaries in the here and now. (Forget for the moment that both scenarios are just bad unionism.) Once these contract demands are considered by the Court to be political speech, then the fact that these workers are compelled by the government to represent workers who disagree with them, and who could outvote them, is a violation of their First Amendment rights!

I’ll also point out that unions’ rights to freely engage in actual political speech is already impeded by the duties of exclusive representation. Unions are politically cautious and loathe to wade into non-economic controversies for fear of alienating a segment of their bargaining unit. For instance, most unions were slow to oppose the wars in Afghanistan and Iraq for fear of alienating bargaining unit members who were veterans or who had children in the military. Even in a so-called “Right to Work” state, those people may not be members but they could still express their displeasure by voting to decertify the union. Does that not coerce unions into more limited political activity?

This is not an abstraction. The day after the Friedrichs decision, if the Court kills agency fee by making all public sector union work “political,” does anybody doubt that the first time a non-member walks into a union office with a grievance that she will be told, “Join the union or get the hell out of our office?” And then we’ll be off to the races with a case that will go to the Supreme Court to revisit exclusive representation in the public sector without agency fee.

Then, the only question would be whether the government has a “compelling interest in requiring unions to negotiate and grieve their nonmembers’ complaints without receiving just compensation.” And here scholarship would demonstrate that it has been the employers’ preference to deal with one exclusive representative because it is easier for them, and, as Whitney writes, “convenience is no response to whether exclusive representation is properly tailored to the government’s legitimate interest.”

Breaking the peace

So far, we’re just talking about public sector unions because having the government as employer, Alito’s right-wing conspirators argue, converts all of the activities of those unions into inherently political acts. But if this Friedrichs logic takes hold, then arguably having the government—in the form of the National Labor Relations Board—compel unions to represent workers they would choose not to (and perhaps vice versa) might become unconstitutional as well.

Currently, the NLRB will only certify unions as exclusive representatives of all of the workers in a bargaining unit, and only if the union can win a majority vote. This is often an insurmountable threshold for unions to reach in the face of intense employer opposition. In his 2005 book The Blue Eagle at Work, law professor and labor law expert Charles J. Morris documented that in its early history the NLRB used to certify minority unions as the bargaining agent for their members only. Morris argued that this pathway was still technically open to unions to gain a foothold at a workplace and legally compel an employer to recognize a non-majority union.

The modern NLRB has dodged efforts by unions to get an advisory ruling on Morris’ theory. But if the Friedrichs logic holds, private sector unions may have a First Amendment challenge to the NLRB’s continued refusal to grant certifications for just the members they choose to represent.

And that, if you’ll follow me down this rabbit hole, could spell the end of contractual no-strike clauses. They would simply be unenforceable in an environment of competing, non-exclusive, members-only unions. Workers would simply drop their union memberships to participate in wildcat job actions. Or else join new workplace organizations that have not signed agreements committing to labor peace.

Don’t get me wrong. I don’t have any fantasy of some huge wave of potential strike actions that would occur tomorrow if only the enraged working class would stop being “repressed” by current union leadership and our current collective bargaining agreements. But these no-strike clauses go well beyond total shutdowns of production to include all manner or slow-downs, work-to-rule and refusal to carry out selective duties.

Any experienced union rep reading this can recall at least one incident of having to talk his members off a ledge—out of refusing a new duty or clocking out for lunch at the same time. These actions would be concerted protected activity in a non-union workplace, but under a “no-strike” contract could result in all participants legally getting fired. How the hell are we supposed to get workers who don’t enjoy union protection fired up about taking action against their bosses, when their unionized peers can’t set any kind of example in terms of actually enjoying their supposed protections?

It’s funny that the First Amendment could make this possible. Union rights in this country are not constitutionally rooted in the First Amendment, but in Congress’ power to regulate interstate commerce—which is one of the reasons that our labor laws make no damn sense. So, yes, Friedrichs could be a useful tool for labor by finally connecting our work to our rights of free speech and free assembly.

But if you’ve followed me down this rabbit hole and are starting to get a little excited about a possible post-Friedrichs world, let me give you an “on the other hand.” Heather Whitney’s First Amendment argument for ending the duty of exclusive representation would come before a Court that would not be weighing it against a long-established precedent as Roberts’ Court is considering Freidrichs. It will be weighing the argument against a very recent Court decision.

If labor successfully causes enough chaos of the nature I’m driving at—or even poses a credible threat to do so—don’t be surprised if the Supremes try to put the lid back on Alito’s can of worms.

[Originally appeared at at “In These Times.”]

The Employee Free Choice Act (EFCA) was a bad bill, and it is deader than dead. It is time for labor to propose a comprehensive set of amendments to the nation’s primary collective bargaining law, the National Labor Relations Act.

EFCA would have guaranteed a union’s right to a first contract, imposed punitive fines on employers that break the law and certified new union bargaining units by card check. EFCA was labor’s stalking horse for years before it effectively died when the Tea Party congress took office in 2011. It was our primary way of articulating to allies and legislators how the law stacks the deck in favor of the boss. It was our main vision for reform, membership growth and power.

Our allies look to the unions for our plan to restore workers rights in this country. If we don’t propose a new workers law, they will continue to flog the dead horse of EFCA.

The problem with EFCA was that it was too narrowly conceived and the card check proposal was a blunder. Industry pounced on it, waging a high-priced media campaign decrying how un-American it was that unions wanted to do away with the supposed sanctity of the secret ballot in certification elections. Nevermind the fact that such elections are a farce that would make Vladimir Putin blush; that the boss gets to draw up the voter list and watches every employee walk into the voting booth after having spent months threatening their jobs if they vote against his wishes and just generally scaring the shit out of people. (Although, having written that, it occurs to me that I’ve described a very American way of conducting an election. But I digress.)

The media onslaught had the effect of temporarily degrading public opinion of unions, and Obama did not prioritize the bill during the two years when his party controlled Congress. But Obama’s indifference did labor the favor of sparing us the humiliation of not gaining significantly more new members had EFCA passed.

I’ve organized under public sector card check systems, as well as under private card check agreements. It’s nice. It’s also more democratic. But, at best, card check helps workers who already want a union and who are already working with a union’s organizing department to possibly side step some of the worst parts of a boss fight. Creating the conditions for the great upsurge in union membership that this country badly needs will require more than a narrow tweak of the law.

But narrow tweaks are all that labor seems to put forward. In the Clinton years, unions merely sought a ban on the permanent replacement of strikers. Like Obama, Clinton failed to prioritize labor law while he had a congress he could work with. Today, the closest thing that unions have to a proposal for labor law reform is actually an amendment to federal civil rights statute. Richard Kahlenberg and Moishe Marvit’s proposal to make union organizing a civil right is a tacit admission that the labor act is just too difficult to amend. It is.

For 30 years after the passage of the 1947 anti-union amendments to the labor act, full repeal of Taft-Hartley was labor’s main legislative goal. George Meany’s AFL-CIO campaigned—unsuccessfully—for repeal like a special interest. There was little recognition from the broader progressive movement that Taft-Hartley—which carved workers out of coverage, restricted unions’ ability to engage in solidarity job actions and legalized “right to work”—was designed to kill the labor movement and had, in fact, kicked off the long, slow decline that are we still experiencing.

Our new reform proposal should aim to undo the worst of Taft-Hartley.

There will be no significant labor law reform for many years. Washington will remain gridlocked, and even if the Democrats did control all branches of government, they won’t move on our bill without a huge amount of pressure. This sad political fact should liberate us to propose a sweeping bill that gets at the heart of what constitutes economic power and civil rights. We should emphasize reform proposals that demonstrate how corporations want one set of rules for working people and another one for themselves. Here are some ideas for how to do just that.

Equal time. Why do bosses get to force employees to sit through mandatory anti-union presentations where lies by omission and outright lies are presented with no debate or challenge? The original Labor Relations Act declared it the policy of the United States to encourage collective bargaining, and to restrain employer interference with workers’ organizing rights. The concept of neutrality was inherent in the law. Employers successfully argued that it was unconstitutional for the government to prevent them from saying anything at all about their opinions on unionization. Employers now use their constitutionally protected dog-whistle speech to terrorize employees out of wanting a union. (Riddle: When is a threat that you will lose your job if you vote for a union not a threat? When it is phrased as a prediction of what might happen if a union forms and the company becomes “uncompetitive!”)

Fine, you have a right to free speech. But what right do you have to make your employees attend a “debate” where only the representatives of the “no” option can speak? An equal time provision for mandatory discussions of unionization, that made the non-invitation or non-attendance of a “yes” representative an unfair labor practice could serve to end the practice of captive audience meetings altogether. Regardless, think of the fun of making Rick Berman or the Chamber of Commerce defend the propriety of a restricted, one-sided “debate.”

Financial penalties. Don’t do the crime if you can’t pay the fine. Seems perfectly reasonable, right? Unfortunately, the NLRB is limited to remedies that “make whole” an employee who is fired for union activity. Worse than that, technically the Board is supposed to subtract any unemployment insurance or other wages made in the interim from a back pay award. So, if an employer fires a union leader on the eve of a union election, his only punishment is to pay what he would have paid anyway minus whatever the employee was able to scrape together while waiting to get her job back.

Obviously, this incentivizes employee terminations during an organizing campaign, as the fine is far cheaper than bargaining wages and benefits increases for all the workers. EFCA contained a provision for real fines against employers who fire union activists, but that didn’t get enough attention over all the noise about card check. This provision should be a focus of future legislative efforts. There is no shortage of workers who can testify about how horribly they were treated by union-busting employers, and these stories must be told.

But why limit fines to cases of termination? Any violation of the act, particularly egregious on-going violations, should face a potential remedy of fines. The NLRB would be entirely self-funded if it could impose fines for the rampant violations of the act that employers commit. Hell, it could be an income generator for the entire federal government. And what would employers’ argument against financial penalties for breaking the law be? It couldn’t be anything more sophisticated than “we just think we shouldn’t have to take this law seriously.”

Organizing rights for supervisors. The idea that supervisors are not workers and don’t belong in a union is an ideology that was foisted upon us by Taft-Hartley. The prohibition on organizing rights for supervisors was inserted into the law at the request of the auto manufacturers who were deeply disturbed that their foremen had begun to form unions of their own after WWII. First-line supervisors are rarely given enough decision-making authority to be an actual boss and, prior to 1947, unions counted them as members (still do in some public sector units, and contracts where the boss agrees to look the other way).

These days, the questionable “supervisory status” of certain workers is used to force hearings that delay union elections and tie unions up in knots over concerns that “supervisory taint” of union activists ruled out of the unit could cause a successful union election to be over-turned. The bloat of middle management is one of the major inefficiencies in the U.S. economy – and union avoidance is a primary culprit. Give supervisors organizing rights. Give the workers that they nominally supervise a vote on whether they would be in the same bargaining unit or not.

Restore solidarity rights. Taft-Hartley placed severe limits on unions’ ability to engage in what, in mid-century shoptalk, is referred to as “secondary boycotts” or “hot cargo agreements,” but which the layman might simply understand as solidarity activism. Imagine a world where Yuengling busted their union (you live in that world; the year was 2007). Shouldn’t members of the UFCW have the freedom to refuse to touch that scabby piss-water and keep it off the shelves of your local grocery store? Now, imagine that workers at a Chinese sneaker factory go on strike. Shouldn’t members of the ILWU be free to refuse to help unload those dirty goods from the shipping containers, and Teamsters free to refuse to put them on their trailers? Before 1947: sure. Now: totally illegal.

Imagine the power we would have if workers could actually support each other’s organizing efforts across industries, and if companies who profit from the exploitation of “secondary” employers were brought to account for their complicity. Here’s the kicker: American consumers are subjected to secondary boycotts all the time! Usually it’s in the form of a cable company cutting off its subscribers’ access to a cable sports channel in a pay dispute. If the American people can understand and tolerate the one kind of “secondary” boycott, then they surely could tolerate the kind that’s actually in their economic interest. Alternatively, it should all be made illegal, and all cable companies should be compelled to carry every conceivable cable channel on their network for all consumers at all times.

Ban “right to work.” The Taft-Hartley amendment allowed states to pass so-called “right to work” laws that prohibit unions from negotiating an agency fee in shops where they are compelled to represent everyone. Initially, only the former slave states passed such laws. The Republican governors in states like Wisconsin and Michigan who have recently rushed these attacks on unions through their Republican legislatures have revealed the RTW agenda to be a nakedly partisan act. They’ve done us the favor of creating an opening for a serious proposal that union rights should be the law of the land and not the plaything of ALEC. It is time to ban “tight to work.”

The AFL-CIO should initiate a broad debate on what the “workers’ law” of the 21st century should look like, and all involved in the endeavor should shun cute or simple solutions. We’re gonna be out in the wilderness, politically speaking, for a while. Let’s not domesticate our demands for restored rights and powers too easily.

[Originally appeared at In These Times.]

The sword of Damocles hangs over the head of the American labor movement. This spring the U.S. Supreme Court will rule on Friedrichs vs. CTA, a case that could end automatic union membership in all government jobs. If this “right to work” effort goes the way the right wing hopes, it would be followed by an aggressive and well-funded direct mail and robo-call campaign to encourage public sector employees to “give yourself a raise” by dropping their union memberships and ceasing to pay dues or fees.

Misleadingly titled “right to work” laws prohibit unions in the private sector from negotiating fees for the services they are compelled provide to provide to all workers they represent. They are designed to reduce unions’ income and power. First introduced in 1947, these laws used to be limited to the former slave states of the Confederacy. But in recent years, a coordinated right-wing drive has expanded these laws to a majority of states, including union strongholds like Michigan and Indiana. Thanks in part to such laws, unions today represent only 7 percent of private sector workers. But factoring in the public sector raises total union density to 12 percent. Unions with substantial public sector membership—AFSCME, SEIU, the teachers unions—are the last remaining large, powerful unions in the U.S. Friedrichs is nothing less than an assassination attempt on the union movement.

Opening the doors to the union

Labor lacks a bulletproof vest, but unions are developing contingency plans. We can probably expect to see some unions begin to offer at-large memberships to supporters regardless of profession, employment status or bargaining rights. And why not? According to a recent Gallop poll, 58% of Americans support unions and want to see them strengthened. Research shows that one in three American workers would vote for a union at their workplace if an election were held today.

But a union election won’t be held today at most workplaces. Vicious employer resistance and retaliation, a broken legal process and declining union resources stand in the way of most workplaces winning the majority vote that is required in our all-or-nothing union representation system.

Of course, the workers who want a union want… a union. They want an organization that can help raise their wages and improve their benefits, protect them from arbitrary and capricious firings and gives them voice in how things get done at work. All that a union can provide an at-large member right now is discount AT&T cell phone plans and pet health insurance. At-large memberships are not likely to lead to millions of new union members.

But there might be a couple hundred thousand people willing to pay 10 bucks a month to belong to a movement. Potentially faced with the immediate loss of exactly that many current members, that’s an attractive proposition to unions. The key will be to actually bring a movement into people’s homes, and that means connecting at-large union membership with advocacy and legislative campaigns.

A “right to your job” movement

Opening up the labor movement and pursuing new rights for all workers would help get labor out of the box of thinking mostly about unionized workplaces and appearing to be a special interest. Unions’ recent embrace of ambitious efforts to raise state-level minimum wages to $15 has so far been at the heart of these efforts. Upwards of 24 million working people would receive a raise if the pathetic federal floor of $7.25 an hour was raised to just $10, so the Fight for $15 has a huge built in constituency beyond just fast food workers.

Unions should add to this a state-by-state effort to change the legal standard of employment relations to “just cause.” “Just cause” is the principle that an employee cannot be fired unless it’s for a good reason—basically, that the punishment (losing your livelihood) should fit the crime (stealing, lying, just not being good enough at the job). This often means that an employee has been given some advance notice of her supposed shortcomings and an opportunity to improve and/or be presented with the documentary evidence to back up the employer’s claims of sub-standard performance with an opportunity to contest it.

This is very commonly negotiated into union contracts. Non-union workers generally labor under an “at-will” standard of employment, a holdover from English common law that basically tells a worker, “Congratulations, you are not a slave. That means you are free to quit your job—and your boss is free to fire you.” It’s a kind of liberty, I guess, but not one that’s particularly appealing.

The only job protection that at-will employees currently have is to try to shoehorn their case into one of a handful of legally “protected categories” of workers: be a woman, be a racial minority, be over the age of 42, be disabled, be a whistleblower. And even if a case does fit in one of those categories, a worker can only receive some financial recompense—generally not retaining her job—if she can prove that she was fired because of their protected status. It’s a lousy framework, but the best that an at-will employee has.

Richard Kahlenberg and Moshe Marvit advocate for union activists to be added as a protected class through an amendment to civil rights laws. They do us a favor by getting unions to think outside of the National Labor Relations Act for labor law reform. But their proposal is still too limited. We should not merely be fighting for “special” rights for union activists. As union density has declined, the remaining unionized workplaces come to be seen as islands of relative privilege. Bosses and the media exploit this and try to whip up a degree of working-class support for stripping our last few rights away, seen most clearly seen in the public debate around teacher tenure protections (which is simply the just cause standard by a different name).

Imagine how quickly the debate would change if unions fought for and won meaningful job protections for all workers in a state! Call it a “right to your job” law. Such a law would lay bare just how cynically manipulative and hollow the so-called “Right to Work” laws are.

To be meaningful, such just cause laws would have to include some kind of a court in which to hear cases. This could be as simple as mandating private mediation and arbitration or as complex as creating new state regulatory agencies to hear such cases. If workers did have a court in which they could defend their employment, unions would have something real to offer at-large members as a part of joining the union. And with that offer comes the potential for substantial membership growth.

A radical departure for labor

Attempting to legislate job protections, pay and benefit increases for large groups of workers who probably won’t become dues-paying union members would be a radical departure for the American labor movement. Unions have, for historical reasons, preferred to make their gains in contract bargaining. The early labor movement, in the 19th century, did work to pass laws on wages, hours and factory conditions. They saw most of those laws overturned, as well as many of their strikes and boycotts enjoined, by conservative courts that viewed unions’ efforts as violations of private contracts and disturbances of interstate commerce.

As a result, unions across the political spectrum entered the 20th century with a profound distrust of government and political parties. While labor’s great upsurge of the late 1930’s did bring unions into the political arena, it coincided with the effective end of the New Deal and the inability to expand the welfare system with benefits like national health insurance. Unions turned to their own collective bargaining for employer-sponsored benefits instead of the government. Such efforts were initially a kind of stopgap measure, pursued in the meantime while hoping to eventually secure government-provided benefits. But when the government froze wages during World War II, unions bargained for more and more “fringe benefits” to make up for the loss.

The labor movement that emerged in the post-war era had won a massive private welfare system for its members. Union leaders considered this a “union advantage” that would help “sell” new organizing. The only major benefit that labor did work to legislate in that era was Medicare and Medicaid (After all, it’s pretty hard to bargain with employers for people who don’t work for them). With one in three workers in a union during the post-war period, even non-union employers had to try to match those benefits to remain competitive. This private welfare system worked for a generation, but it was all too vulnerable when less than one third of workers were organized to defend it.

The labor movements of other countries strike more of a balance between negotiating rights and benefits for their members and legislating them for all workers. This is particularly so in countries where unions formed labor parties or aligned with socialist parties. And when rights are enjoyed by all, they are defended by most. Think of France and the massive protests over austerity proposals to slash pensions and benefits in 1995 and 2010. Would you believe that French union density stands at a mere 7 percent?

Unions tend to think of legislatively gained rights and benefits as easily lost if the wrong governor gets elected or a bad mid-term flips control of a statehouse. We should instead view labor’s legislative agenda as another way of bargaining for the common good. It is a way of broadening our base, opening wide the doors of our movement, to win and protect a standard of living that we all deserve.

[This piece originally appeared in In These Times]

Unions have taken some hard hits in recent years, with even greater existential threats on the horizon. Labor must consider alternative forms of organization if they want to survive. But unions should watch out for unintended consequences of those new forms of organizing.

In their report for the Century Foundation, Moshe Marvit and Leigh Anne Schriever highlight case studies in “members-only” organizing, where unions cannot reach majority status for legal certification but maintain a workplace organization made up of a minority of workers that presses issue campaigns against the boss. 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). Some unions in “right to work” states are contemplating “members-only” certifications as a solution to the “free rider” problem, that workers can choose to opt out of joining (and paying dues to) a union, but the union is still legally compelled to represent them. “You want the contract? Join the union,” goes the simplistic (albeit attractive) logic.

But make no mistake: Non-exclusive representation will also inevitably lead to competitive union situations at workplaces. If a union, for whatever reason, only seeks to represent a portion of a bargaining unit, another organization will come along to recruit the workers who are left out by promising better benefits or an alternative approach to seeking improvements on the job.

This may not be a bad thing. The combination of exclusive representation (in which a workplace either does or does not have a union, and if it does, all employees who have the covered job titles are automatically represented), and agency fee (in which all of those represented employees join the union or at least pay a fee to the union for the bargaining, benefits and grievance services that the union provides) is a uniquely American collective bargaining framework—and a relatively new one, at that. Wall-to-wall certifications were sought by the industrial unions of the CIO to stave off AFL craft unions from coming along and claiming a handful of job titles at a workplace. By the end of the Depression, the CIO’s perspective on union certifications (that bigger is better and that a union should represent all workers in as many job titles as possible across the enterprise) prevailed at the NLRB, partly because the CIO was better than the AFL at working the system and partly because employers generally prefer to deal with one union rather than a multitude of unions.

The concept of agency fee evolved out of World War II when unions were bound by wage freezes and no-strike pledges and were faced with the threat of a wave of membership resignations in protest. It was a concession from the government in exchange for the far greater concessions in wages and power that unions made in the interest of workplace stability and war production.

The important point is that the current American model of union representation is not the natural or inevitable form that unions must take. It was only acceptable to employers in a post-war environment that prized workplace peace, stability and labor-management collaboration in exchange for wages and benefits for workers that kept pace with increased productivity—a far cry from the situation workers and unions face today.

In other countries, competitive unions are the norm. Unions distinguish themselves from each other on the basis of ideology (communist, Trotskyist, Christian democratic, etc.) or party affiliation and compete over their bargaining demands, their ability to turn out members for actions and their ability to “work with” the boss (or not). In Germany, this competition takes the form of proportional representation at the bargaining table (Literally, the number of representatives that any given union has in negotiations is directly proportional to the percentage of workers who voted for it.) In France, the competition can be somewhat hostile, with the first union to take a deal in a round of bargaining potentially opening themselves up to accusations from a rival union of a not-good-enough deal, membership raids and loss of status as workplace leaders.

American unions used to look like this. Take the New York City hotel industry as an example. Labor history buffs may recall a failed 1911-12 city-wide strike by the Industrial Workers of the World (which lost crucial middle-class support when Wobbly organizer Joseph Ettore made the inflammatory proclamation, “It is the unsafest proposition in the world for the capitalists to eat food prepared by members of your union”). But after the strike’s end, a union remained behind in the industry. The independent Amalgamated Food Workers maintained the Wobbly tradition of anarchist direct action in the city’s hotels and fancy restaurants for decades in competition with the “official” HERE locals.

In time, they were joined in competition by the Communist-affiliated Food Workers Industrial Union. The unions called competing general strikes every few years, and the HERE locals would occasionally swoop in and sign a sweetheart deal with a few employers. This dynamic continued until the Depression-plagued hotel industry, desperate for labor peace, signed an industry-wide neutrality agreement in 1938 with the merged unions, the still-powerful NY Hotel Trades Council.

The NLRB was designed in response to competitive union situations like the 1930s New York hotel industry. But rapid wins by unions and employers’ desire for labor peace quickly made exclusive representation the norm. This earlier era of minority union certifications was a forgotten relic until Morris’ book. But this alternative model is getting dusted off—and not just by the radical left.

Following the devastating NLRB election loss at Volkswagen’s Chattanooga, Tenn., plant in early 2014, the United Auto Workers have petitioned for recognition as a non-exclusive, “members only” union. Hot on their heels, an independent union, the “American Council of Employees,” has contested for turf in the plant. ACE is a part of a long history of non-union “unions” in the South: organizations that appear to offer all of the accouterments of representation without any risk of conflict with the boss. I’d call them a company union, but I suspect that VW is aghast at this unforeseen development.

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.”

Still, there is some promise in the idea of what would have ordinarily been opposition caucuses having an immediate go at the boss. An opposition caucus is essentially a slate of rank-and-file members who run for union office against the incumbent leadership on a “change” platform. Some opposition caucuses come and go in a single election cycle; others become an ongoing internal political opposition to union leadership. Most are failures. Stanley Aronowitz provides a useful history of rank-and-file union reform efforts in the fourth chapter of his recent book, The Death and Life of American Labor. He argues that successful opposition caucuses are limited by the scope of bargaining and the drudgery of contract bargaining and grievance handling that necessarily blunts their edge and limits their vision. (And that’s just the examples of labor renewal, like the Chicago Teachers Union and TWU Local 100, that are celebrated.)

Most opposition caucuses never transcend their opposition status and are often viewed by leaders and rank-and-filers alike as unhelpful distractions. In the context of wall-to-wall exclusive representation, unity behind leadership’s bargaining demands is often seen as essential. Members are loathe to highlight divisions within the union on the eve of bargaining—particularly if the election results will be less than decisive. Forced to contest for total power, many opposition efforts can leave the union more divided and vulnerable.

The story of the 2012 Chicago teachers strike—which began as a radical book club that then morphed into an organized caucus that won a clean sweep leadership election, then over 90 percent of members to authorize a strike and turned out all members for the win—has become the stuff of recent legend in part because it is so far outside the norm. Teachers union locals’ leadership tend to turn over more frequently than other international unions. But the result of most contested elections is usually a divided executive board, a leader with the public support of only half the members (or less, in low turnout elections) and an employer that sees those divisions and is ready to pounce. If pluralism was tolerated at the workplace; however, dissidents would be freed up to seek out a militant minority of co-workers and focus their fire on the boss instead of union leadership.

In his book, Stanley Aronowitz goes so far as to advocate that labor abandon “contract unionism” altogether. I’m not ready to go all the way with Stanley on that point. As an organizer, my experience has been that workers still really want to have a contract. But members-only unions and non-exclusive representation could open the door to a hardy band of labor radicals to experiment with his prescription for a new workers movement. Rather than press forward with competing demands on wages and working conditions, an alternative union could demand a voice in the production process, the employer’s business model, its products and its prices and leave it to another union to consolidate any wins in a contract.

And what if those contracts continue to contain “no strike” clauses, which prohibit a broad array of job actions during the terms of the agreement? Well, it’s hard to imagine how they survive such a shake-up in the labor relations framework. If contracts are for members only, couldn’t workers drop membership in one organization to take part in the slow down or work-to-rule action of another? What obligation would a non-exclusive representative have to police the behavior of all employees at the workplace?

If this sounds like chaos, good! The current legal assault on unions deserves nothing less as a response. Exclusive representation allows employers to only deal with one set of organizing tactics and one set of narrow demands. Agency fee allows unions to make unpopular concessions, like unions did during World War II, agreeing to wage freezes for reasons of patriotism or the supposed good of the company, without the threat of an immediate loss in dues revenue. This is a framework that works for employers and that curbed an earlier era of labor militancy. “Labor peace” is actually enshrined in the 1978 decision that the Friedrichs Vs. CTA Supreme Court case seeks to overturn in order to throw the entire public sector into “right to work” chaos.

I’m skeptical that Alito has the fifth vote that he needs to overturn four decades of court precedent. But if I’m wrong, and the Supreme Court votes to gut public sector unions, then the only appropriate response is to show them what the absence of labor peace looks like. And if the billionaire class is so hungry to kill all unions that they would hand us back the tools that we surrendered long ago…well, it behooves us to study our history to remember how we once used those tools.

[Originally appeared in In These Times]