The Right Wing Has a Vast, Secret Plot to Destroy Unions for Good. Here’s How to Fight Back.
The vast right-wing network of Koch brother-funded “think tanks” is now plotting to finish off the public sector labor movement once and for all.
In a series of fundraising documents obtained by the Center for Media and Democracy of Madison, Wis., and published in the Guardian, the CEO of a cartel of 66 well-funded arch-conservative state capitol lobbying outfits promises funders a “once-in-a-lifetime chance to reverse the failed policies of the American left.”
Tracie Sharp, the leader of the States Policy Network (SPN), goes on to explain that the pathway to permanent right-wing victory is to “defund and defang” unions that rely on the legal protections of state labor law.
Though less well-known, the SPN is something of a sister organization to the American Legislative and Exchange Council (ALEC), which writes cookie cutter “model legislation” for right-wing state legislators.
SPN affiliates, like Michigan’s Mackinac Center and Ohio’s Buckeye Institute, promote ALEC’s agenda in the public sphere and attack organizations that are opposed to it. Both networks have effectively nationalized the conservative agenda in state legislatures.
The One Percent Solution
What’s fueling this drive is a combination of the vast sums of money that flow into elections in the Citizens United-era along with the gerrymandering that has helped rig elections in favor of Republicans. The result has frequently been “triple crown” GOP-led state governments that hold little accountability to voters but tremendous debts to their corporate masters.
University of Oregon professor Gordon Lafer has documented the rise of the corporate legislative agenda in all 50 states in his new book, The One Percent Solution: How Corporations Are Remaking America One State at a Time.
Lafer found that state bills pushed by ALEC and the SPN, along with more traditional business lobbyists like the Chamber of Commerce, generally fall into four broad categories.
The first, and most obvious, are efforts to constrain or destroy institutions that empower working people to fight back, such as labor unions.
Second are efforts to privatize public services. Lafer found these efforts were primarily intended to diffuse the responsibility of providing these services. “If no public authority is responsible,” he writes, “demands become customer-service issues rather than policy problems that must be addressed by democratically accountable officials.”
Third are efforts to block—or preempt—rebel cities from passing living wage or fair scheduling laws, thereby foreclosing on the ability for localities to defend and advance progressive goals.
Finally, through tax cuts for the wealthy and austerity-driven cuts to vital public services, Lafer found that this corporate agenda seeks a downward shift in what people come to expect for a basic standard of living.
In other words, the One Percent’s solution is to convince the rest of us, as the Dead Kennedys song goes, that soup is good food; that each new indignity is simply our new standard of living and that we shouldn’t expect more.
“Give yourself a raise”
If the States Policy Network does really strive for this One Percent goal outlined by Lafer, then it’s no wonder that the group has been most dogged in pursuing its union-busting agenda. SPN and ALEC have long understood what many Democratic politicians are only just beginning to realize: strong unions help keep right-wing politicians out of office while protecting the social safety net.
SPN and ALEC have aggressively pursued so-called “right-to-work” legislation as a means of bankrupting unions and knocking out a key component of their opponents’ get-out-the-vote operation. Twenty-eight states now have these anti-union laws on the books. Five of them—all former bedrocks of union power—were passed this decade as a part of the anti-union drive described in the documents released by the Center for Media and Democracy.
That’s hardly the extent of the role of these “think tanks” in busting unions. Flush with cash, they’ve begun volunteering their efforts as union avoidance consultants where no one has asked for their services.
In 2013, I was part of a drive to organize the workers at Chicago’s United Neighborhood Organization Charter School Network, under the terms of a neutrality agreement. The employer was getting rocked by a financial and insider dealing scandal that was a daily cover story in the local media. The schools’ employees joining the Chicago Alliance of Charter Teachers and Staff (ACTS) was the only positive headline they had to look forward to when we launched the card drive.
That didn’t stop an SPN affiliate, the Illinois Policy Institute (IPI), from harvesting teachers’ email addresses and spamming UNO’s e-mail lists with condescending admonitions to “not sign any union petition or authorization card unless you are certain that you want union representation.”
These union busters seemed to assume that the “launch” of our card drive meant a bunch of beefy goons were about to descend on the schools to strong-arm teachers. In fact, the public launch of the card drive was the union organizing equivalent of a touchdown dance. The representative, democratic organizing committee we had spent weeks training, educating and empowering signed up over 90 percent of their colleagues in time for a May Day card count certification.
The Illinois Policy Institute is better prepared for the upcoming Supreme Court case, Janus vs. AFSCME. Originating from Illinois, the case is a blatant do-over of the craven attempt to turn the entire public sector labor movement “right-to-work,” previously pushed in the Friedrichs case.
Should the Supreme Court vote to make union fees voluntary, the IPI and its sister organizations are prepared to run the mother of all “open shop” drives. They will likely FOIA the names and as much contact information as possible of every union-represented public sector worker and inundate them with glossy materials encouraging them to “give yourself a raise” by quitting the union.
How to fight back
The revelation of the SPN’s nakedly partisan agenda should open every one of its affiliates to challenges over their status as tax-deductible educational charities. These challenges are worth pursuing, if only to delegitimize their role in public debates. But this won’t really affect their bottom line—their funders have so much money they hardly need the tax breaks for donating to their favorite political causes.
In preparation for the post-Janus attacks, public sector unions should behave more like Chicago ACTS and confound the SPN’s moldy old assumptions about the source of union power. To do this, we need to greatly increase members’ democratic involvement in their unions. The slick “give yourself a raise” pamphlets will do the most damage in places where members think of the union as simply a headquarters building downtown. If that’s the extent of their interaction, workers could fall for the cheap trick of blaming the union for the stagnant wages and reduction in benefits that are actually the direct result of the GOP’s corporate agenda.
But where members are involved in formulating demands and participating in protest actions, they find the true value and power of being in a union. That power—the power of an active and involved membership—is what the right-wing most fears, and is doing everything in its power to stop.
[This article originally appeared at In These Times.]
A New Bill of Rights for Workers: 10 Demands the Labor Movement Can Fight for and Win
ON A CLOUDY AFTERNOON IN APRIL 2006, ROGER TOUSSAINT LED A PROCESSION OF UNION WORKERS ACROSS THE BROOKLYN BRIDGE. Toussaint, president of Transport Workers Union Local 100 and an immigrant from Trinidad and Tobago, was on his way to surrender himself to the authorities to serve a 10-day jail sentence. His crime? He led the largely Black and Latino union membership in a 60-hour strike the previous winter, shutting down the city’s subway and bus system in violation of a judge’s injunction and New York’s 1967 Taylor Law, which bans public-sector strikes.
The court also slapped the union with a $2.5 million fine and suspended its ability to collect dues for a year. Individual strikers were fined two days’ pay for each day on strike.
Punishments this draconian are rare outside the world of labor law. Toussaint saw more jail time than any of the top bank executives responsible for the 2008 financial crisis.
To change the law—and the barriers to organizing the law poses—we have to change the way we think about it. The sweeping 1935 National Labor Relations Act (NLRA) and the many local laws it spawned are not the source of workers’ rights to organize.
Rather, those rights are rooted in the Constitution through the rights of free speech and equal protection, as well as freedom from involuntary servitude. Labor laws simply regulate those constitutional rights, much as election laws regulate the right to vote. And just as restrictive voter ID laws can violate citizens’ voting rights, bad labor laws can trample workers’ rights. While “corporate persons” have established free speech rights, for example, a union—a collection of actual persons—has no similarly recognized protections. This disparity would in turn seem to violate the 14th Amendment right to equal protection under the law.
Unions must reverse a half-century-long strategy of avoiding the courts and mount legal and political challenges to labor laws that infringe on workers’ speech, curtail their bargaining power and deny them the right to extend solidarity to fellow workers. This is a long-term strategy, one made longer-term by the inability to appoint progressive federal judges in the near future. But if we are ever to restore key protections for labor, we need to demand a workers’ bill of rights.
In a July report for The Century Foundation, I propose 10 such rights as well as strategies to advance them that can be adopted by both union officials and rank-and-file workers.
THE FIRST RECORDED COURT CASE INVOLVING WORKER ORGANIZING in the United States dates back to Thomas Jefferson’s second term. Shoemakers picketing for higher wages were convicted of using “threats, menaces and other unlawful means” to maintain a conspiracy.
That set the tone for jurisprudence of workers’ rights in the new republic, where conservative jurists treated union organizing as a criminal activity. As a result, unions spent the 19th and early 20th centuries decrying “judge-made law” and demanding the codification of their rights.
These demands resulted in a landmark victory. The 1935 NLRA encouraged collective bargaining by establishing a federal agency, the National Labor Relations Board (NLRB), to certify the existence of a union at a workplace and sanction employers who refused to deal with a bona fide union.
Another point of the NLRA was to keep labor disputes out of the courts. Most unions have stuck with the intent of the Act and shied away from pursuing rights and benefits that cannot be won at the bargaining table. Employers have shown no such reticence. They’ve attacked workers’ rights in the courts since the day the NLRA was passed, steadily chipping away at hard-won protections.
A fundamental flaw in the Act opened the door to these successful attacks. The NLRA’s authority derives from the Constitution’s commerce clause. Legal experts at the time argued that this framing had the best shot at withstanding legal challenges under a Supreme Court hostile to New Deal legislation.
Representatives of the American Federation of Labor (AFL) had, instead, pushed hard to base the Act on the 13th Amendment, which banned slavery and involuntary servitude. The AFL’s Andrew Furuseth warned of settling for short-term legislative gains while leaving unsettled the legal question of “whether or not that man or woman shall have a right to combine with others for the purpose of … doing collectively what you can’t do individually.”
His concern proved prescient. The NLRA’s grounding in the commerce clause means that when labor disputes go to court, they are judged by their potential impact on business. The last half-century has demonstrated that, by this yardstick, the courts consistently sympathize with business interests. As a result, unions are hampered by rules that would never be applied to corporations, or to any other form of political action.
Consider what happens when workers decide to form a union. The rules of union certification elections, set by a series of unfortunate court cases and NLRB decisions, permit employers to force workers to attend “vote no” presentations or be fired.
In a 2009 study, Cornell University’s Kate Bronfenbrenner found that employers utilized these captive audience meetings in nine out of 10 union elections. Employers threatened to cut wages and benefits in 47 percent of documented cases, and to go out of business entirely in 57 percent of cases. In one in 10 instances, bosses actually hired goons to impersonate federal agents and lie about the process. Not surprisingly, unions lose 57 percent of elections when employers run these “captive audience” meetings.
Ironically, corporations have argued for—and won—the right to hold these meetings on the grounds of their First Amendment rights as “persons.” Yet union advocates possess no equivalent right to hold their own “vote yes” meetings.
The captive audience meeting is but one of many areas in which labor law favors employers. Workers form unions because they want a say on the job. Yet employer-friendly court decisions have created a distinction between “mandatory” and “permissive” bargaining issues. Employers are required to bargain over the former, but can legally tell the union to go to hell when it raises the latter. Labor law thus removes from the bargaining table many of the issues that matter most to workers, including the decision to downsize, subcontract or shift work overseas.
The existing labor law regime even circumscribes solidarity, the lifeblood of unions. “An injury to one is the concern of all” is one of the oldest precepts of the labor movement, yet it is illegal for unions and workers to officially join others’ strikes and boycotts.
Corporations, by contrast, engage in so-called secondary boycotts all the time. Cable providers, for example, black out television channels to protest a network’s rate increase, instructing viewers to call the network CEO to complain. Why are secondary boycotts legal when used by media companies for profit, but illegal when exercised in solidarity by workers?
UNIONS HAVE BEEN PLAYING DEFENSE FOR SO LONG, they tend to accept the rigged rules. But a fresh look at the body of labor law reveals many restrictions on union activity to be constitutionally suspect.
There are several arenas where unions can advance a rights-based agenda. First, they can push the NLRB for rule changes. A group of leading labor scholars is currently petitioning the NLRB to re-establish a rule guaranteeing equal time for pro- and anti-union presentations in the workplace. Trump’s Republican-dominated NLRB won’t be sympathetic. The next Democratic NLRB should be keenly aware of what a limited window for action it may have.
In some cases, unions must be prepared to defy NLRB orders and push key questions into the courts. Labor groups might start by challenging the excessive restrictions on signal picketing (efforts to embarrass unfair employers without an explicit call for a boycott). Noxious hate groups such as the Ku Klux Klan and the Westboro Baptist Church have seen their pickets vigorously defended by the courts. Unions should argue that to restrict signal picketing is to violate workers’ First and 14th Amendment rights.
Of course, labor can’t rely on the courts and the federal government to save it. Advancing a workers’ bill of rights will also require protest and direct action, but this must be complemented by new legal and political strategies. Whenever public-sector unions defy state-level no-strike laws, as the New York City transit workers did in 2006, they should seek federal injunctions to stop the state from issuing crippling punishments, arguing for their right to strike on First and 13th Amendment grounds.
In all of these arenas, labor must be willing to make bold demands. The NLRA was drafted and passed within a matter of months, in part because it reflected the rights-based agenda that labor advanced for decades.
It is time for unions to return to demanding workers’ rights without apology.
[This article originally appeared in the September issue of In These Times.]
The Right to Organize at Work Deserves Constitutional Protection
On Labor Day, alongside stories about parades and final trips to the beach, we can expect to read the usual depressing statistics about the decline of labor unions in the United States. The problem with this coverage isn’t the facts, which are undeniable — it’s the tone of inevitability.
Today, less than 11 percent of workers, including just 7 percent in the private sector, are members of a union — a dramatic drop from the 1950s, when more than one-third of the workforce was unionized. The recent loss by the United Auto Workers at a Mississippi Nissan factory, where workers voted by a three-to-one ratio against union representation, is just the latest in a long string of defeats for the labor movement.
And this decline has a real effect on families’ financial security: Researchers have shown that nearly half of the decline in middle-class incomes is due to the shrinking rates of unionization.
Few articles probe deeply into the cause of the decline, but here’s a hint: It isn’t because unions no longer make sense in the modern economy, nor is it about American workers’ supposed skepticism toward unions (especially in the South). And it’s not more evidence that the white working class stubbornly insists on voting against its own interests.
Rather, the decline of unions is a direct result of our nation’s badly broken labor laws — specifically, the ways in which those laws and court decisions fail to acknowledge, much less protect, the constitutional rights of workers.
American courts have never been kind to labor. From the beginning of our nation’s history well into the 20th century, union organizing efforts were treated by conservative jurists as criminal conspiracies and interferences with employers’ sacrosanct contract rights. Unions spent the 19th and early 20th centuries decrying “judge-made law” and seeking, essentially, to get the government and courts out of labor disputes.
This approach did notch a few victories. The Norris-LaGuardia Act of 1932 prevented the federal courts from issuing injunctions against union picket lines (which were frequently enforced at bayonet point). Many states passed similar laws to keep their courts and local police out of the fray.
But the modern labor era began in many ways in 1935, with the National Labor Relations Act, which made it the official policy of the United States to encourage collective bargaining. The act established a federal agency, the National Labor Relations Board (NLRB), which would certify unions and punish employers that refused to deal with them. While well intended, passage of the NLRA in the form it took has had many unintended, and some extremely detrimental, consequences for organized labor.
A failure to ground labor laws in the Bill of Rights
The framers of the legislation, who at the time were leery of a conservative Supreme Court, made the pragmatic decision to root the law’s authority in the Commerce Clause, which grants Congress the right “to regulate Commerce with foreign Nations, and among the several States.” This was the subject of no small debate at the time.
Many advocates believed that labor’s rights should be based on First Amendment rights to free speech and free assembly; others thought that the Fifth Amendment right to “due process” — interpreted as a broad protection of citizens’ rights — made sense. Leaders of the American Federation of Labor had been arguing for a half-century that the 13th Amendment, which prohibited both slavery and, crucially, “involuntary servitude,” was the appropriate constitutional basis for labor rights. But the act’s framers were convinced that the Lochner-era Court that made laissez faire economics a virtual state religion would never go for more lofty human rights justifications.
Practically speaking, the court was motivated to accept the NLRA more by the wave of sit-down strikes roiling the country in 1937 than by legal theories. But conceiving of unionization as a matter of business regulation led to a very narrow interpretation of the act. Before the end of World War II, the court took away legal protections for sit-down strikers, denied striking workers the right to return to his job, and granted employers a First Amendment right to run vicious union-busting campaigns.
Much of this anti-union thrust was endorsed and enhanced by the Taft-Hartley Act of 1947, passed by a Republican Congress over President Truman’s veto. The law declared it illegal for union members to boycott or picket a “secondary” employer — that is, a company that they do not work directly for, but who has significant or even essential business dealings with their employer.
Most people think of the Taft-Hartley Act for its “right-to-work” provisions. The Act permitted states to allow workers to decline to join a union, or pay fees, even if they benefitted from union-negotiated contracts.
But it’s the prohibition against solidarity activism, the heart and soul of the labor movement, that’s been most devastating. A cable provider that gets into a fight with a television channel over revenue sharing can black that channel out. But if the workers at your local unionized grocery store want to keep Oreo cookies created at a scab factory off the shelves, they face steep fines, effectively banning the practice.
Restrictions on labor accelerated in 1949, when 10 unionized technicians at the Jefferson Standard Broadcasting Company, in Charlotte, North Carolina, were fired for distributing handbills criticizing their employer. Workers quickly filed a complaint with the NLRB arguing that they were participating in a legally protected activity, but the NLRB ruled that the technicians’ actions were not protected because they were not explicitly connected to the union contract campaign — they involved more general complaints.
Courts recognized “disloyalty” as lawful grounds for firing a worker
Upon appeal, the US Supreme Court issued Labor Board v. Electrical Workers, one of its most aggressively anti-labor decisions. The majority wrote, among other things: “There is no more elemental cause for discharge of an employee than disloyalty to his employer.”
Interpretation of the Jefferson Standard decision has led to decades of harsh and contradictory court decisions that chill the rights of workers to speak out. This past July, the Eighth Circuit ruled that six workers at a Jimmy Johns sandwich shop could be fired because they circulated memes suggesting that customers might be eating food made by sick workers. They were protesting the franchise owner’s refusal to provide paid sick days (ill workers also had find their own replacements).
The “poster attack” was “so disloyal” that it was not protected under the law, the court found. Unsurprisingly, the judges had little to say about the employer’s reciprocal responsibility to be loyal enough to its workers to let them take a day off when they get sick.
And consider the recent vote at the Mississippi Nissan plant, in which efforts to form a union were turned back. In order to determine whether workers had a legal right to form a union, the NLRB held an election with rules set forth by Congress and the courts. Among them was the requirement that only one side — the party that opposes unionization — can force employees to attend mandatory presentations of their arguments as a condition of employment. The union, according to the federal government, has no equivalent right of access or response.
Employers’ speech to captive audiences of employees is protected
As expected, managers at Nissan forced employees to attend multiple one-on-one and small group “captive audience” meetings, in which they threatened that the plant could be relocated, or shuttered, if workers voted for a union. That is nothing new. Across the country, employers make fake “economic predictions” to threaten workers’ jobs in two-thirds of all union elections, according to Cornell professor Kate Bronfenbrenner.
But restrictions on workers’ speech don’t end at rigged elections; the government also censors what unions can do at the bargaining table. Federal law requires employers to negotiate “in good faith,” but only on a tightly circumscribed set of issues — basically just wages, hours and some working conditions. A decision to relocate a factory, as Nissan managers threatened, is not an issue unions can negotiate.
This is what makes threats of plant closures such effective anti-union tactics. Workers want unions that have the ability to veto or amend management’s decisions to downsize, subcontract, automate or shift work overseas. But in the American system, unlike in much of Europe, such matters are the prerogative of management alone. When the law restricts unions from being what workers want them to be, of course there are going to be low levels of union representation.
Simply put, employees are hampered by rules that would never be applied to corporations, or to any other form of political activism. That the government can dictate to workers what they can or cannot write on a flyer, where and how they can march, and what they can and cannot boycott, is not just unfair — it ought to be illegal.
In March 2016, the Supreme Court considered the issue of speech in bargaining in Friedrichs v. CTA, a case that deadlocked 4-4 (without Justice Scalia’s vote); in that case, conservatives argued that public-sector unions violate workers’ speech rights when they collect mandatory union fees. The goal was to bankrupt the last of the big unions. The parties are suing for a do-over in the pending Janus v. AFSCME.
Union advocates should wrest the free-speech issue from conservatives, because we have the far better case: Every interaction between the government and a union is a matter of political speech. Unions and their allies should challenge unequal restrictions on free speech and assembly as the violations of workers’ constitutional rights that they are.
As economists scratch their heads this Labor Day about why the longest economic expansion on record is not translating to increases in most Americans’ standard of living, let’s take a good, hard look at precisely how the power of unions has been curbed. Just as laws permitting collective bargaining helped build the American middle class, a vigorous First Amendment defense of workers’ constitutional rights can help rebuild it today.
[This post originally appeared at Vox.]
The Cost, not the Cure
Chris Brooks has an excellent piece in the new issue of New Labor Forum that grapples with the question of whether unions should cede exclusive representation if the country goes “right-to-work.” As the title of his article, “The Cure Worse than the Disease: Expelling Freeloaders in an Open-Shop State,” suggests, he’s against it:
Ceding exclusive representation to “kick out the scabs,” as Richman would have it, might be okay for a high-functioning local with high union density, but a union with 60 percent membership is likely to create an entrenched, adversarial minority. A union representing Geoghegan’s “40 percent, or 30, or fewer” can easily succumb to being nothing more than a marginal minority. So long as unions are treated as third-party vendors of services, as Fisk and Sachs describe them, then it will be easy for yellow unions to provide the same insurance, professional development, and discounted movie tickets at a lower cost.
Members-only unionism might be a solution to the free-rider problem that unions face in an open-shop environment, but it is not a solution for the internal divisions between workers that unions must overcome if the labor movement is to grow. The labor movement is at its strongest when it is capable of fighting for all workers as a class, living up to the old refrain “an injury to one is an injury to all.” By advocating for members- only unionism, labor activists run the risk of unwittingly weakening the labor movement by narrowing the scope of union solidarity to a smaller grouping of dues-paying members and setting the stage for yellow unions to pit workers against one another and create further divisions. If the source of a union’s power is the ability of workers to take collective action on the job, then the Tennessee experience high- lights the struggles that confront an increasingly divided and weakened labor movement.
Brooks draws on his own dispiriting experience with multiple (right-wing, boss-friendly) competing unions in the school systems in Tennessee, and engages with some of my writing on the question. I feel like my thinking on the matter gets a bit lost in translation, but it’s my own fault. I’ve been too cute with the subject, dealing with it in asides that mostly avoid firmly advocating anything at all.
Partly that’s because I think the union shop is worth defending right now. While I’m playing with thoughts of what we should do if we lose it, I don’t want to appear as if I’m rooting for the loss of agency fee and the chaos that should follow it (Even though I tend to agree with Brooks that “The United States is likely to be an entirely open- shop country in the near future.”).
I do think unionists need to study our history and other countries’ labor movements. We should realize that our combination of exclusive representation at the enterprise level, the union shop and the duty of fair representation is historically and globally bizarre and the product of a series of accidents – not a strategically pursued model. It works when all of the pieces are in play. But if you knock anyone of them out, as “right-to-work” destroyers seek to do, then the whole system becomes unworkable. That unworkability is initially and acutely felt by the unions, which makes it incumbent on us to spread the pain and blow the whole system up if the union-busters win a national “right-to-work.”
One day, when I’m not promoting Labor’s Bill of Rights, I’ll deal with this subject at length. I’ve got 10,000 semi-abandoned words just dealing with how the current U.S. labor framework accidentally fell together waiting to be dusted off. In the meantime, I did want to quickly respond to Chris Brooks’ very good piece.
First of all, he’s right that when I write about this, I’m thinking of a high-functioning private sector contract. What I’ve studied most are the unions of the NYC hotel industry in the 1920’s and 30’s who competed for strike leadership every few years and drove the industry so batty that they eventually voluntarily recognized a merged union in 1939 to buy themselves some peace. I don’t think that the public sector in the south is the place to start an experiment like this.
But, I’ve also been very clear that if unions cede exclusive representation that other organizations will step into the space they’ve ceded and that those are likely to be company unions and right-wing outfits at first. My first piece for In These Times was actually on this subject. I was responding to a piece by Moshe Marvit that advocated organizing new “members only” bargaining units to side-step the rigged NLRB election process and win a union for the workers who want them. I thought it’s a fine idea but that we should all be clear that that would inevitably lead to multiple competing unions:
If labor cedes exclusivity, we can expect more independents like ACE to fill the void. We should also expect the Horseshoers and Hod Carriers and the whole cottage industry of corrupt unions that were long ago thrown out of the AFL-CIO for unprincipled raiding to troll around for disgruntled dues payers. And nobody should be surprised if Koch brothers-funded, States Policy Network affiliates like Michigan’s Mackinac Center shop around the legal and member benefits services of new, explicitly anti-union “unions.”
But the hope here is that eventually other real unions rise up to challenge each other for shop floor leadership in terms of who can pick the right issues, the best fights and lead the best protest actions. Here is where my point gets a bit muddled in Brooks’ re-telling:
Shaun Richman imagines a future in which employers bargain multiple contracts with separate unions representing different workers in the same workforce, creating the conditions for union competition and employer “chaos.”
I’ll be clear here: in a model of multiple unions competing in a workplace, the best case scenario is one contract for the unit. More likely is that this is a contract-less labor world where unions demand to bargain over changes in working conditions on a rolling basis. Now, I’m assuming here that the Unfair Labor Practice protections of the National Labor Relations Act remain in place (And that is a fairly major assumption in a right-to-work world where unions lose perhaps half of their membership and power in a few short years). That would mean that employers still have a duty to bargain “in good faith” with a union that demands it, and that an employer cannot discriminatorily apply work rules on the basis of union membership.
So, if one union raises an issue – a wage increase, a work quota reduction, etc. – and wins it, that settlement would have to be applied to all workers in the bargaining unit. And if a different union regards that settlement as a sell-out and continues to agitate and organize around it and somehow wins a better settlement, that would have to replace the old settlement as the new work rule for the entire unit.
In this scenario, I imagine that most unions will still see it as advantageous to seek a signed collective bargaining agreement, and that some employers might view signing one with a strong workplace leader as temporarily advantageous for getting a degree of peace. If they sign a deal, they’ll find ways to not negotiate with other unions during the terms of the agreement while the other unions spend the meantime shitting all over the deal to jockey for workplace leadership in the next round of bargaining.
With me so far? I feel like I’m writing the labor law equivalent of a sci-fi spec script.
Here, I think, is where the potential for chaos comes in to play. Those other unions? The ones that hate the contract and are organizing against it? Does the “no-strike” provision of the contract apply to them? Why? They’re not members of the union that signed it. That union made a promise to keep its own members from striking, with the enforcement mechanism being that any member who is a party to the agreement has signed off on the non-grievability of terminating someone who strikes during the term of the agreement. I think this would be the effective end of “no-strike” agreements, which have been one of the greatest inhibitors to labor militancy in the last half century.
The other major potential gain here is also where I think this experiment is more likely to get carried out: in new organizing. The loss of agency fee really ought to make unions ask themselves why they are losing elections at the NLRB to vie for the obligations of representing all of the workers in a bargaining unit with no promise of compensation for the political costs and the loss of resources. Back to that first In These Times piece:
Charles J. Morris, in his 2005 book The Blue Eagle at Work, reminds us that in its first few years, the National Labor Relations Board (NLRB) used to certify minority unions as the bargaining agent for that union’s members only, and that such a mechanism still exists (although the modern Board has dodged efforts to get a ruling to respond to Morris’ assertion).
The employers’ preference to deal with somewhere between zero and one unions has been enshrined in the legal preference for exclusive representation. As well, the civil rights thrust of the duty of fair representation make going back to members only certifications a steep hill to climb (made steeper still by the current occupant of the White House). But the loss of the union shop is an opening for unions to argue that the trade-offs are unjust and unsustainable and that the law should return to what we needed it to be in 1935: a guarantee that anywhere a group of workers have joined together as a union, the employer must deal with them as a union.
We don’t know where our breakthrough opportunities are going to arise. How we respond to and exploit anti-union legal pushes is within our control and where some potential for good change occurs. We’re not talking about “curing” an unjust “right-to-work” push; we’re talking about how to make the open shop onslaught cost the bosses in ways they never anticipated.