The Rise of Feminist Labor Unions in Japan
A good union is a feminist organization. We reduce the gender wage gap, fight for family-work-life balance and non-discriminatory promotion standards and sometimes literally sound the alarm on workplace sexual harassment and assault – among many other ways that working women use their union membership to fight for equality.
For a time, Japanese labor unions fell far short of that standard.
Although there are very strong labor protections and anti-discrimination laws on the books in Japan, they are often evaded through the proliferation of contingent employment and ignored with lame appeals to “cultural traditions.” Female workers routinely experience sexual harassment, workplace bullying and lack of career advancement. The traditional enterprise unions that are common in Japan had a pretty bad track record of even seeing these practices as wrong, let alone standing up for their female members.
Starting in the 1990’s, a group of activists started new women-only unions to compete with the official unions and advocate for their members’ rights at work and in society. A recent book by Anne Zacharias-Walsh explores this story as part of a transnational solidarity project. Our Unions, Our Selves: The Rise of Feminist Labor Unions in Japan (Cornell University Press) is a fascinating account of union decline and potential rebirth that feels both entirely alien and yet very familiar.
It is also very interesting to anyone who is thinking deeply about the pros and cons of exclusive representation here in the United States. In most countries, unions compete for members and workplace leaders across industries and sometimes on the shop floor. Our peculiar system of one exclusive representative in a workplace, and formal agreements between unions not to compete is only shared, in part, by two other countries. American trade unionists literally exported their model to Canada and Japan. Following World War II, CIO union leaders helped Japanese workers craft their labor relations framework as a part of the U.S.-led rebuilding process.
Because of that, Japanese experiments with women-only unions are instructive about how new unions could even go about breaking the exclusivity model, and what might happen as a result.
The Japanese unions took the exclusive representation system and mutated it into a very peculiar model of company unions. There is no Japanese equivalent of the United Auto Workers union; that is there’s no union that seeks to represent all workers at every domestic factory in the auto industry. Instead, there’s a union for Toyota workers and another one for Honda workers. Although the unions don’t shy from militant job actions – particularly when contracts are being renegotiated – they remain very loyal to the company. After all, increased profits and efficiency could mean higher wages. This loyalty is further enticed by Japanese firms offering jobs for life for their regular, full-time employees with a career track of promotions
Women are excluded from much of this framework. This is partly explained by the proliferation of temporary and subcontracted jobs that have been created to offset the costs of those well-paying lifetime jobs with an underclass of workers who just don’t count in the companies’ promises of mutual loyalty. But the reason that women more often fall into these substandard jobs is better explained by a patriarchal society that makes the U.S. look like some kind of working women’s paradise by contrast.
As Zacharias-Welch describes it, a female colleague is expected to pour tea for all of her male co-workers – no matter what her seniority or rank is in relation to them – before a work meeting will begin. Worse, when an employer feels an economic need to downsize a workforce that has been promised jobs for life, a supervisor might bully and orchestrate the social ostracization of a woman who refuses to voluntarily “retire.” The traditional enterprise unions rarely filed grievances to defend women’s jobs since they were politically dominated by men who believed that men need the jobs more in order to provide for their families.
It’s no wonder that some women decided to go their own way and form voluntary membership unions for women only. The members of the union join as individuals, not as collective groups. A worker would tend to join only when she had a grievance that the traditional union was not helping with or if she fell into any number of sub-contracted or temp work schemes that kept her out of union contract protections. The women’s union would provide advice and counsel. By threatening legal action over employer practices that were plainly in violation of laws that were routinely flouted, the women-only unions could force a recalcitrant employer to the table over a grievance. Theirs would not be the strongest hand. Lacking the legal power of the collective bargaining agreement and the collective power of the woman’s co-workers, most of these grievances would still result in a “voluntary” resignation, but also some financial compensation. In other words, workers who would otherwise have been totally screwed received a degree of justice and compassion.
Women who remained members of the women-only unions might do so openly and quit the official union. Many others chose to quietly pay dues to the women’s unions while retaining membership in the traditional union in order to go along to get along – a Japanese feminist slant on the American radical tradition of the “two card man.”
Lessons for America
An important point, and an instructive lesson for U.S. trade unionists, is that Japanese women’s shift from exclusive representation to a competitive union model didn’t come about through legislative reform, which is as difficult to achieve there as it currently is here. It was achieved by exploiting the very brokenness of the labor relations system.
Recently, over at In These Times, I participated in a roundtable discussion with Kate Bronfenbrenner and Labor Notes’ Chris Brooks about whether unions should abandon exclusive representation after the anti-union Janus decision.
In Janus, the five right-wing justices weaponized the First Amendment to outlaw agency fees in the public sector. They aim to bankrupt unions, who must continue to spend resources on workers who decline to pay union fees. At this point, our labor laws are completely broken. I have advocated that we break the laws even further in ways that will make employers regret ever tinkering with Right-to-Work.
If unions competed on the shop floor level for workplace leadership and dues-paying members, that would have the effect of making it much harder to achieve any kind of enduring labor peace and would make no-strike clauses basically unenforceable.
Dr. Bronfenbrenner warns, quite rightly, that what causes the so-called “free-rider” problem that has some unions thinking about ceding exclusivity is the Duty of Fair Representation:
Those of us who were progressives saw that Duty of Fair Representation was the best thing that ever happened to unions because DFR said that unions had to represent women, people of color, the LGBT community, and you couldn’t discriminate against part-time versus full-time [workers]. Historically it was used to force the old guard had to give up domination of unions and to fight for union democracy because the simplest basis of DFR is the concept of good faith. If used effectively, it would be the thing that could break the hold of the mob, or the old guard, or just white men. So you have to remember when you give up exclusive representation you could lose DFR. I can tell you that women and people of color are not going to want to give it up.
The feminist labor unions in Japan are evidence that backs up my contention that in a competitive union model, even without the statutory protections of DFR, some organization inevitably steps into the void and serves as the feminist or anti-racist union.
Lessons for Japan
The heart of Our Unions, Our Selves documents a transnational solidarity project that Zacharias-Walsh coordinated where leaders of the Japanese women’s unions came to the U.S. to learn about women’s union organizing strategy and experience before embarking on a series of strategic retreats to grapple with the challenges of their model.
To be clear: the Japanese women-only unions face serious organizational challenges. While individual women have won small measures of dignity and justice, these new unions – at least at the time that the book was written – have not won much power for women collectively nor established much of a permanent presence in many workplaces.
One major challenge they face is that most members stop paying dues shortly after their grievance is settled. The union leaders’ theory of change was that women who participated in prosecuting their own grievance would come away empowered and more active. Encouraged by their American sisters, the unions surveyed their current and former members and found that the opposite was true. The workers who joined because they had grievances were the least likely to remain members. The workers who joined to be a part of a social movement – as increasing numbers of younger women are doing – stayed for the long haul.
Part of this challenge is inherently Japanese. The women who founded the women-only unions intentionally embraced an individual membership model because they felt strongly that few women workers were ready to take charge and “act out” as unions with a more collective model must.
But part of this dynamic is sure to pop up if new alternative unions experiment with workplace competition in the U.S. The traditional or dominant union is likely to retain the loyalty of most workers in a shop, as they have the historical track record of wins in the past and as the official bargaining agent on record with a legal right to demand negotiations with the employer. Individual memberships in the alternative unions are more likely to be situational. Workers may switch unions – or become dual-card holders – when the alternative union is running a campaign that makes sense with a demand on the boss that resonates.
Imagine here a collective bargaining agreement that settles with no progress on paid family leave or child care allowances. The minority of younger workers for whom this is a major issue break away to campaign for it. That campaign could now include slowdowns and work-to-rule actions that are forbidden by the union contract they now claim not to be bound by. While there are actions taking place, and as long as they provoke any management response, that alternative union may retain a loyal militant minority. But as soon as the union takes a break from campaign, or picks a new issue that isn’t as important, it might see a decline in membership.
Now, this might read like the labor law version of a sci-fi spec script. We just won’t know how a multiple competitive union model might play out in the U.S. until someone tries it. But the Japanese women-only unions provide a reasonable example. Most importantly, they provide the most important object lesson here: They just did it. And after a few years of experimentation, they stepped back and engaged in the thoughtful introspection and strategic readjustment that Our Unions, Our Selves details.
[This post originally appeared at Unionist.com]
Elon Musk’s Very Dumb Tweet
The United Auto Workers union (UAW) slapped billionaire gadfly Elon Musk with charges of violating federal labor law in a stupid tweet last week. Musk owns the unprofitable luxury electric car manufacturer Tesla Motors, which the UAW has been unsuccessfully trying to organize.
Tesla has previously been scrutinized over allegations of “excessive mandatory overtime,” a lack of workplace safety and union busting. Musk’s tweet suggesting that Tesla workers would lose their stock options in the company if they voted for union representation raised eyebrows and prompted the UAW to file an Unfair Labor Practice Charge over the retaliatory threat. Speaking to Bloomberg news, former NLRB chair Wilma Liebman said, “If you threaten to take away benefits because people unionize, that’s an out-and-out violation of the labor law.”
The dumb tweet was fired off in the middle of a surreal “It’s 2018 and, yes, this is actually happening” social media meltdown that was sparked the revelation that the 46-year-old capitalist mogul who looks like his name sounds has been secretly dating the pop star Grimes.
Somehow this led to Grimes tweeting a defense of Tesla’s union busting. (As writer Brandy Jensen quipped in a tweet of her own: on a scale of “said you liked his band” to “publicly defended his union busting” what’s the most embarrassing thing you’ve done for a boyfriend) In the resulting Twitter conversation from Hell, Musk – who, again, is a billionaire and has on a scale of “said you liked his band” to “publicly defended his union busting” what’s the most embarrassing thing you’ve done for a boyfriendnearly 30 million followers on the platform – responded to the gentle chiding of someone with .00004% of his social media reach with this gratuitous gem:
Nothing stopping Tesla team at our car plant from voting union. Could do so tmrw if they wanted. But why pay union dues & give up stock options for nothing? Our safety record is 2X better than when plant was UAW & everybody already gets healthcare.
— Elon Musk (@elonmusk) May 21, 2018
Musk’s online meltdown has also included attacks on the credibility of the press, along with a threat to create some sort of Rotten Tomatoes-style website to rate the truthiness of various media outlets. Hilariously, he wanted to name it Pravda – Russian for “truth” – after the infamous Soviet newspaper. After his “grand” announcement Musk found out that the domain name was taken because Pravda still publishes and they’d like to keep their name, thank you very much.
As of this writing, Musk’s latest train wreck is a tweet suggesting that the real problem with the media is, and I quote, “Who do you think owns the press? Hello.” (The belief that the media is owned and controlled by a Jewish conspiracy is an anti-Semitic trope that won’t die, and Musk’s tweet was celebrated by hundreds – if not thousands – of literal Nazis who joined the thread from Hell because it’s 2018 and this sort of thing happens now.)
Not only was Musk’s anti-union tweet arrogant and gratuitous, it was the dumbest, clumsiest technical violation of labor law that every dipshit front-line supervisor makes before the professional union-busters get in there and teach them proper Newspeak.
For Elon Musk’s benefit – and everyone’s– here’s how union negotiations actually work.
The moment that workers form a bargaining unit and successfully vote for union representation, a status quo of pay, benefits and working conditions sets in. This is regardless of whether the union was formed through an election certified by the National Labor Relations Board (NLRB) or through voluntary card check recognition by the employer.
That’s because the only thing that unionizing workers win on Day One is a seat at the bargaining table. The employer is legally compelled to negotiate “in good faith” over the union’s (that is, the workers’) demands for the changes they’d like to see at work. Likewise, the employer must negotiate with the union over any changes it wants to make. In fact, there’s some case law at the NLRB that the status quo sets in as soon as a union organizing drive goes public and a union demands recognition as the representative of the workers.
So, nothing “goes away” when workers form a union. There’s nothing automatic about the changes to the benefits package or work rules. Both sides must negotiate them all.
Now ask yourself, if there was a benefit that employees enjoy – like, say, stock options – how would they even wind up on the table, much less surrendered or bargained away? What group of democratically elected representatives is going to suggest getting rid of a popular benefit?
Popular items wind up on the chopping block because vindictive employers put them there. It is very common for employers to carry over their union busting campaign into negotiations for a first contract. So the boss comes into bargaining with a laundry list of benefits to be pruned, new surveillance and drug tests that need to be instituted and all kinds of “flexibility” around pay and scheduling that he needs to stave off those suddenly-pending layoffs.
And that’s why Elon Musk’s tweet is illegal. He’s not predicting the future, or explaining the UAW’s “Big 3” contracts. He’s telling his workers, “Hey, you can form a union but I’ll be damned if I keep giving you ungrateful S.O.B.s an ownership stake in the company.”
It was an unmistakable threat.
Now, do popular benefits and work rules get traded away in bargaining? Sure, it happens. But here’s the thing: in order for a contract to get signed and be in effect it must be ratified by the workers who are subject to its terms. When a union member is voting on whether to accept a deal or not, she is weighing the entire package. Do the wage increases and new health insurance with lower co-pays outweigh the fact that, for example, the nurses now have to pay the same parking fee as the cafeteria workers, or that the kitchen staff can no longer haul off with a case of beer each week, no questions asked? And, is the entire package worth the cost of the union dues members will soon be paying?
If the answer is no, it’s hard to imagine how a majority of workers would vote to approve such a deal. This is not abstract hair-splitting. Half of all bargaining units that vote in favor of unionization wind up with no contract and ultimately no union rights.
Forming a union is a process of bringing some much-needed democracy into the workplace. Workers have real and meaningful control over what they’re demanding and how they go about trying to win it. Without a union a workplace is a literal dictatorship; the boss dictates all of the work rules, pay and benefits. With Tesla’s stock options for its employees, Elon Musk can try to convince himself that he is a benevolent dictator. But let’s all be as clear as Musk himself is about his power over his workers. Musk fights the UAW in ways both sophisticated and clumsy because he wants to retain his dictatorial powers over his company and its workers.
[This post first appeared on the Unionist.com blog.]
What Is Janus and Why Does It Matter?
Half of the labor movement could go “right-to-work” depending on the outcome of a pending Supreme Court decision. In Janus v. AFSCME, the justices are weighing whether union shop contract clauses that compel represented workers to join or pay a representation fee should be illegal in the public sector. With 7.2 million union members’ participation at stake, the case represents the latest in the unrelenting corporate assault on union power and financial resources.
Part of what the right wing is exploiting in this case is that for public sector workers, their employer is, in some sense, “the government.” That makes their union contracts more vulnerable to challenges from outsiders. Indeed, public sector workers won the right to negotiate for the same union shop clause that private sector unions have enjoyed for over a century in a 1978 Supreme Court case called Abood v. Detroit.
That long-settled precedent has been under sustained attack in recent years, with Supreme Court Justice Samuel Alito leading the charge. He inserted the argument—that every interaction that a union has with the government
is inherently political—into the Court’s 2014 decision in Harris v. Quinn. That decision maligned unions representing state-funded, but home-based, child and elder care work- ers and took away their right to bargain for the union shop.
In Harris, Alito strongly signaled that he and the rest of the conservative Court majority would support a court challenge to mandatory union fees as “compelled” political activity that violates the First Amendment. Lo and behold, Friedrichs v. California Teachers Association rock- eted through the courts the following year. It deadlocked in a 4-4 tie only because Justice Antonin Scalia died in 2015.
Two short years, and one stolen Supreme Court seat later, Janus is in front of the Court with the same stale arguments backed by the same deep pockets.
The anti-union argument is ironic because judges have spent most of U.S. history denying workers any kind of free speech right to form a union. Before Congress passed the National Labor Relations Act (NLRA) in 1935, courts were more likely to treat unions as criminal con- spiracies that interfered with employers’ property and contract rights. But even the NLRA, which provides legal protections for union organizing and collective bargaining, does not recognize a First Amendment right to engage in union activity. Instead, it bases those rights on Congress, and its power to regulate interstate commerce—not in the civil and constitutional rights of workers.
As a result, corporations enjoy more free speech protections to beat up on work- ers than workers and their unions have to organize. An employer can force workers to attend mandatory anti-union presentations or be fired, and unions have no comple- mentary right to respond. Workers can be fired for making “disloyal” statements about their company in the course of a protest. And the scope of issues that unions can meaningfully demand to bargain over has been significantly narrowed.
A ruling against AFSCME in Janus could provide unions with a solid First Amendment basis to challenge these and other inequities in labor law. But con- servative judges could also shamelessly wave away any argument about why free speech shouldn’t make collective bargain- ing fairer for workers, while beefing up corporate power. Already, some are concerned that anti-union lawyers will next argue that col- lective bargaining regulated by the NLRA is another “inherently political” interaction between unions and the government, making any union shop—even in the private sector—unconstitutional. That this argument might even see the light of day shows how far the right wing has pushed the American political conversation.
U.S. unions are bracing for impact. Unions with substantial public sector memberships have beefed up their mem- ber-to-member organizing programs. Their immediate goal is convincing current fee-payers to join and pay dues.
This is not a drill or a false alarm, and stewards play a key role in keeping workplaces, bargaining units and unions together as all working people—union and not—come under assault. Here are three things to do:
- Talk about Janus and its effect on our communities, unions, and workplaces. Unionist.com has resources from across the labor movement and around the media.
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Expect a well-funded direct mail blitz from union busters encouraging mem- bers to quit their union to “give themselvesa raise.” Member-to-member organizing is critical for counteracting right-wing propaganda portraying unions as “ineffective” third parties Here, shop stewards must be the first line of defense.
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Express solidarity with all workers. Show up at another union’s picket line or rally, sure. Is there a demonstration against workplace raids by ICE in your community? Those are workers, too. Be there for them, in your union colors.
[This article originally Volume 29, Issue 2 of Steward Update.]
Supreme Court Guts Workers’ Rights in Murphy Oil
With their decision Monday, May 21, 2018 in Murphy Oil, the Supreme Court has just gutted workers’ rights to act collectively to battle wage theft and discrimination. Murphy Oil is a gift to corporations, allowing them to force their workers to sign a class action waiver as a condition of employment. Justice Neil Gorsuch authored the 5-4 decision that might as well have read, “Because we have the votes.”
A class action waiver is when a worker waives – that is, gives away – their right to band together with other workers, access the courts, and force their employer to stop doing something discriminatory, dangerous, or otherwise wrong.
Class action lawsuits had been one of the most powerful ways for workers to win back-pay awards for employer misconduct. Arbitration, which takes place outside of the courts, is far more favorable to employers. That is doubly true when a worker must go it alone. Even if a worker can afford legal representation (instead of pooling the cost with dozens or hundreds of workers), they face the employer with only the facts and circumstances of their individual case.
The Murphy Oil decision consolidated a number of cases weighing the legality and constitutionality of class action waivers. In one case, Epic Systems, the Seventh Circuit Court ruled that the waivers violated the National Labor Relations Act’s protections for workers of workers’ concerted activity. The National Labor Relations Board (NLRB) agreed, and so did President Obama’s Solicitor General – until President Trump took the unusual step of reversing the United States’ official position on a pending Supreme Court case.
Murphy Oil follows a series of Supreme Court decisions favoring arbitration since 1991. Employers have matched that enthusiasm by increasingly requiring workers to sign employment agreements that include mandatory arbitration clauses. Most non-union employers now require employees to sign one – and 30% explicitly forbid their workers from taking class action, restricting their legal rights.
Arbitration is a funny thing in U.S. labor history. Although union activists tend to think of it as a positive thing – a recourse to a neutral third party at the end of a grievance procedure – it has not always been seen as, well, neutral.
Leftist critics frequently decried arbitration during the era where employers refused to sign contracts or formally recognize unions as the legitimate representatives. In the early 20th century, many unions called off early bruising strikes after the employer agreed to abide by an arbitrator’s decision.
In those days, “arbitration” basically meant asking for a nominally “progressive” lawyer or politician to the throw the workers a few scraps while almost always rejecting the union’s demand for formal recognition as the on-going bargaining representative of those workers.
The sea change in unions’ appreciation for the value of binding arbitration dates to 1935. That’s when the newly created NLRB provided the force of law to make employers bargain with duly recognized unions. What resulted was a routine of signed, written contracts covering wages, hours and working conditions – and dispute resolution procedures that included an appeal to a neutral third party over a violation of the contract or a disagreement about what some of the words on the page meant.
The crucial distinction here is that by being included in collective bargaining agreements, the recourse to arbitration was, by definition, the exercise of a collective right and the culmination of the collective power that it took unions to win those rights. That’s what the conservative majority on the court just stole from non-union workers.
In the Seventh Circuit, Judge Diane Wood first asserted that class action waivers violate labor law. She has been incredibly creative in the way that she issues pro-labor opinions. She also advanced the legal theory that so-called “right-to-work” laws violate the Takings Clause of the Fifth Amendment. Why was she not President Obama’s nominee to replace the late Antonin Scalia on the Supreme Court?
It’s a reminder that any party that wants labor’s support must advance judicial nominees who “look like America” and who have a demonstrated track record of protecting, if not expanding collective rights, including workers’, consumers’ and others.
Class action waivers have come under scrutiny in the #MeToo era, where high-profile harassment survivors are arguing for a “carve out” when class-action waivers hinder redress for gender discrimination. But as writer E. Tammy Kim writes in yesterday’s New York Times, “For decades, the spread of forced arbitration and its twin demon, the class-action waiver, have slowly eroded Americans’ civil rights….To unleash the full power of #MeToo, we must fight for much more: a rejiggering of the economy that begins with collective action and unbridled access to the courts.”
As with many matters in the Trump era, workers can still defend their rights at the state level. Many community organizations are looking to replicate a California law called the Private Attorneys General Act (PAGA) of 2004. It grants workers the power of the state when seeking redress on a wage and hour claim. Because the state is not a party to employment agreements, the forced arbitration clauses are unenforceable when workers use the PAGA process.
Workers have won big through PAGA, upheld by California’s highest court in 2014. Wal-Mart, for instance, paid out $22.7 million in minimum wage violations. “The possibility of a PAGA case changes the calculus for a company, so that they would invest more in compliance and not be as cavalier about the labor standards,” Rachel Deutch of the Center for Popular Democracy (CPD) told Bloomberg news. CPD is a network of community organizations and unions pushing, among other policy reforms, the PAGA strategy in cities and states. That’s where the fight continues tomorrow.
[This post originally appeared at Unionist.com]