After Janus, Should Unions Abandon Exclusive Representation?

Kate Bronfenbrenner, Chris Brooks, Shaun Richman May 25, 2018

The SCOTUS Janus decision could have far-reaching consequences for the labor movement. (Photo by Drew Angerer/Getty Images)

The Supreme Court is set to issue a rul­ing on Janus vs. AFSCME, which could have far-reach­ing con­se­quences for the future of pub­lic-sec­tor unions in the Unit­ed States. The case has sparked a wide-rang­ing debate with­in the labor move­ment about how to deal with the free-rid­er prob­lem” of union mem­bers who ben­e­fit from col­lec­tive bar­gain­ing agree­ments but opt-out of pay­ing dues. We asked three labor experts to dis­cuss what’s at stake in the case and how they each think unions should respond.

Kate Bron­fen­bren­ner is direc­tor of labor edu­ca­tion research at Cor­nell Uni­ver­si­ty, Chris Brooks is a staff writer and orga­niz­er with Labor Notes and Shaun Rich­man is a for­mer orga­niz­ing direc­tor at the Amer­i­can Fed­er­a­tion of Teachers.

Chris Brooks: The way I see it, right-to-work presents two inter­lock­ing prob­lems for unions. The first is that unions are legal­ly required to rep­re­sent all work­ers in a bar­gain­ing unit that the union has been cer­ti­fied to rep­re­sent, and in open shops the Duty of Fair Rep­re­sen­ta­tion (DFR) requires unions to expend resources on non-mem­bers who are cov­ered by that con­tract. This is com­mon­ly known as the free rid­er prob­lem and it gets a lot of atten­tion, for good reason.

The sec­ond prob­lem is that open shops also under­mine sol­i­dar­i­ty by pit­ting work­ers who pay their fair share to sup­port the union against those who do not. This is the divide-and-con­quer problem.

So the free rid­er prob­lem is insti­tu­tion­al: the union has to expend all these resources fight­ing on behalf of work­ers who are not mem­bers and do not pay dues. And the divide-and-con­quer prob­lem is inter­per­son­al: when work­ers do not all sup­port the union this results in union and non-union mem­bers devel­op­ing adver­sar­i­al atti­tudes toward each oth­er which under­mines the abil­i­ty for col­lec­tive action.

If you believe that the source of a union’s strength is its abil­i­ty to unite work­ers in com­mon fights to bet­ter their con­di­tions on the job and in the com­mu­ni­ty, then the divide-and-con­quer prob­lem is a real imped­i­ment to union pow­er. Yet, the free rid­er prob­lem gets far more atten­tion from union lead­ers and activists than the divide-and-con­quer prob­lem. This is espe­cial­ly true in the dis­cus­sion around whether unions should ditch exclu­sive rep­re­sen­ta­tion and pur­sue a mem­bers-only form of unionism.

In my opin­ion, most argu­ments in sup­port of kick­ing out free rid­ers actu­al­ly rein­forces the employ­ers’ log­ic — turn­ing union mem­ber­ship into a per­son­al choice and unions them­selves into com­pet­ing vehi­cles for indi­vid­u­al­ized ser­vices rather than vehi­cles for broad class strug­gle. So by focus­ing on the free rid­er prob­lem to the exclu­sion of the divide-and-con­quer prob­lem, unions run the dan­ger of turn­ing inward and rep­re­sent­ing a small­er and small­er num­ber of work­ers rather than seek­ing to con­stant­ly expand their base in larg­er fights on behalf of all work­ers in an industry.

Shaun Rich­man: I had an arti­cle pub­lished in The Wash­ing­ton Post and I admit it was too cute by half part­ly because I was try­ing to ampli­fy what I think was actu­al­ly the strongest argu­ment that AFSCME is mak­ing in the case itself, which is that the agency fee has his­tor­i­cal­ly been trad­ed for the no strike clause and if you strike that there is the poten­tial for quite a bit of chaos. So I want­ed to put a lit­tle bit of fear to who­ev­er might poten­tial­ly have the ear of Chief Jus­tice Roberts, as crazy as that may sound. But I also want­ed to plant the seed of think­ing for a few union rebels out there. If the Janus deci­sion comes down as many of us fear then the prop­er response is to cre­ate chaos.

If the entire pub­lic sec­tor goes right to work, unions will nev­er look the same. So, then, the project of the left should be what do we want them to look like?” and what will dri­ve the boss­es cra­zi­est?” I’ve writ­ten about this before and Chris has respond­ed at In These Times. There are three things that I am sug­gest­ing will hap­pen — two of which, and I think Chris agrees, are sort of inevitable and not par­tic­u­lar­ly desir­able. The third part is not inevitable and depends a lot on what we do as activists.

If we lose the agency fee, some unions will seek to go mem­bers-only in order to avoid the free rid­er prob­lem, and that’s a lousy moti­va­tion. I’m not encour­ag­ing that, but I think it’s also inevitable. Once you have unions rep­re­sent­ing these work­ers over here but not those work­ers over there, it’s also inevitable that you wind up with com­peti­tor unions vying for the unrep­re­sent­ed. And the first com­peti­tor unions are going to be con­ser­v­a­tive. These already exist. They’re all over the South and they com­pete against the Amer­i­can Fed­er­a­tion of Teach­ers (AFT) and Nation­al Edu­ca­tion Asso­ci­a­tion (NEA) in many dis­tricts and they offer bare bones ben­e­fits and they pro­mote them­selves on we’re not going to sup­port can­di­dates who are in favor of abor­tions and we’ll rep­re­sent you if you have tenure issues.” That’s also bad but also inevitable.

The third step, which is not inevitable but we need to con­sid­er in this moment, is at what point do new oppo­si­tion groups break away from the exist­ing for­mal union? When do we just break the exclu­sive mod­el and com­pete for mem­bers and work­place lead­er­ship? Can we get to a point where on the shop floor lev­el you’ve got orga­ni­za­tions vying for work­ers’ dues mon­ey and loy­al­ty based on who can take on the boss in a bet­ter fight or who can win a bet­ter deal on the basis of we’re going to be less con­fronta­tion­al (which, I think, there are a lot of work­ers whom that appeals to as much as I don’t like that idea)? But the chaos of the employ­er not being able to make one deal with one union that set­tles every­thing for three or five years — that’s just the sort of chaos that the boss class deserves for hav­ing pur­sued this whole Friedrichs and now Janus strategy.

Kate Bron­fen­bren­ner: I have a dif­fer­ent per­spec­tive that has to do with hav­ing looked at this issue over a longer peri­od of time and also hav­ing wit­nessed the UK labor move­ment wres­tle with exclu­sive rep­re­sen­ta­tion when their labor law changed. First, I believe there is a third thing that right to work does that is miss­ing from your analy­sis. Right to work gives employ­ers anoth­er point to intim­i­date, coerce, and threat­en employ­ees about being part of the union, all of which employ­ers find much more dif­fi­cult to do in a union or an agency shop.

My research sug­gests that employ­ers will act the same way now they do in the process of work­ers becom­ing mem­bers as they do dur­ing an orga­niz­ing dri­ve. The his­tor­i­cal trade-off for unions was that the price of exclu­sive rep­re­sen­ta­tion was Duty of Fair Rep­re­sen­ta­tion (DFR) and unions saw DFR as a burden.

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. His­tor­i­cal­ly it was used to force the old guard had to give up dom­i­na­tion of unions and to fight for 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. And I think the fact that the two of you did­n’t think of that is prob­a­bly because you have not been using that in your roles, but it is cen­tral to those who are fight­ing if you are deal­ing with mem­bers who are fight­ing dis­crim­i­na­tion in your union, the whole DFR exclu­sive rep­re­sen­ta­tion is absolute­ly critical.

Brooks: Kate, am I wrong that the actu­al court case estab­lish­ing the DFR in exclu­sive rep­re­sen­ta­tion comes out of the Rail­way Act, where a local was refus­ing to rep­re­sent Black workers?

Bron­fen­bren­ner: His­tor­i­cal­ly, but it kept being rein­forced over and over again in cas­es involv­ing most col­lec­tive bar­gain­ing laws. It’s been rein­forced over and over again that the trade-off for exclu­sive rep­re­sen­ta­tion that the DFR is tied with exclu­sive representation.

Rich­man: Yeah, it was the entire thrust of the NAACP work­place strat­e­gy before the 1960’s — that the labor law could be a civ­il rights act as long as we could win DFR. Her­bert Hill wrote a great book about it (Black Labor and the Amer­i­can Legal Sys­tem). I would also rec­om­mend Sophia Z. Lee’s The Work­place Con­sti­tu­tion, which explores that his­to­ry and makes a com­pelling argu­ment for return­ing to a strat­e­gy of try­ing to estab­lish con­sti­tu­tion­al rights in the work­place through the labor act.

Bron­fen­bren­ner: Right. So union work­ers had pro­tec­tion for LGBTQ work­ers under DFR long before any oth­er work­ers did because you could not dis­crim­i­nate on the basis of any class under duty of fair rep­re­sen­ta­tion. Now whether work­ers knew that, whether their unions would rep­re­sent them, is anoth­er mat­ter but if you were a union work­er or a work­er who knew about it, this was where you fought it. So that was very important.

And the third thing that I want­ed to say that relat­ed to this was that there is a long his­to­ry in the pub­lic sec­tor of inde­pen­dent unions, of com­pa­ny unions, act­ing as if exclu­sive rep­re­sen­ta­tion did­n’t exist, where there would only be one mem­ber and employ­ers would rec­og­nize the union” estab­lish­ing a con­tract bar so no oth­er union could come in.

In the 1980s and 1990s, pub­lic sec­tor unions assumed that they were win­ning decer­ti­fi­ca­tion elec­tions rather than the inde­pen­dent unions and dis­cov­ered that they weren’t. Soon enough they real­ized that the prob­lem was that they weren’t doing a good enough job of rep­re­sent­ing their mem­bers. Work­ers were not vot­ing for the com­pa­ny unions, which were lit­tle more than law firms or insur­ance com­pa­nies. They were vot­ing against the poor representation.

The preva­lence of these inde­pen­dents is a long run­ning prob­lem that exist­ed before and after exclu­sive rep­re­sen­ta­tion, and it exists when there are agency fees and when there are not. Poor enforce­ment by the NLRB and the dif­fi­cul­ty of track­ing down these front groups that are not real­ly unions is a much big­ger issue that comes out of a divid­ed pub­lic sec­tor, and exclu­sive rep­re­sen­ta­tion has noth­ing to do with it.

Brooks: I think right-wing groups are try­ing to cap­i­tal­ize on the his­to­ry of com­pa­ny unions and frag­men­ta­tion in the pub­lic sec­tor. The State Pol­i­cy Net­work (SPN) has a nation­al­ly coor­di­nat­ed strat­e­gy that builds on right-to-work laws to fur­ther bust unions. One of the tac­tics their mem­ber orga­ni­za­tions, which exist in all fifty states, are pur­su­ing is so-called work­ers’ choice” leg­is­la­tion. This leg­is­la­tion allows unions to main­tain a lim­it­ed form of exclu­siv­i­ty, but with no duty of fair rep­re­sen­ta­tion. Unions must still win a cer­ti­fi­ca­tion elec­tion to be the sole orga­ni­za­tion bar­gain­ing with the employ­er, but work­ers can opt out of the union and seek their own pri­vate con­tract with the boss out­side of the col­lec­tive bar­gain­ing agreement.

Requir­ing a cer­ti­fi­ca­tion elec­tion for col­lec­tive bar­gain­ing also saves employ­ers from hav­ing a sit­u­a­tion where mul­ti­ple unions can simul­ta­ne­ous­ly pur­sue sep­a­rate bar­gain­ing agree­ments for the same group of work­ers, a legal can of worms that cor­po­ra­tions don’t want to open. SPN affil­i­ates tout this leg­is­la­tion as a solu­tion to the free rid­er prob­lem for unions, since they have no duty to rep­re­sent non-mem­bers, but it also incen­tivizes employ­ers to bribe and cajole indi­vid­ual work­ers away from the union.

Employ­ers could offer bonus­es to work­ers if they drop union mem­ber­ship and call it mer­it pay.” I don’t think that cor­po­rate advo­ca­cy groups like the SPN would be pro­mot­ing this leg­is­la­tion unless they believed it would fur­ther weak­en unions and frag­ment the labor movement.

The SPN is also active­ly orga­niz­ing these mas­sive opt-out cam­paigns, where they encour­age work­ers to give them­selves a raise” by drop­ping union mem­ber­ship. They even have a nation­al­ly coor­di­nat­ed week of action called Nation­al Employ­ee Free­dom Week that eighty orga­ni­za­tions par­tic­i­pate in. In fact, the SPN think tanks work hand-in-glove with a host of inde­pen­dent edu­ca­tion asso­ci­a­tions — which are basi­cal­ly com­pa­ny unions, pur­port­ing to rep­re­sent teach­ers while advanc­ing the pri­va­ti­za­tion agen­da. In Geor­gia, Mis­sis­sip­pi, Mis­souri and Texas, these inde­pen­dent edu­ca­tion asso­ci­a­tions claim to be larg­er than the AFT and NEA affiliates.

So in those places where unions are real­ly strong, there is a high like­li­hood that we will see an increase in com­pa­ny unions that are work­ing close­ly with State Pol­i­cy Net­work affil­i­ates to fur­ther divide work­ers on the job.

Rich­man: Chris, what you’re describ­ing are things that are most­ly going to hap­pen any­way, if we lose Janus. That SPN opt-out cam­paign is going to hap­pen. The leg­is­la­tion you describe is not inevitable. I agree we dig a hole for our­selves if the only rea­son we want to kick out the scabs” is so we don’t have to rep­re­sent them in griev­ances. Because that lays the ground­work for mak­ing a union-bust­ing bill seem like a rea­son­able compromise.

If we lose Janus, unions will nev­er look the same. It’s at moments like this when we have to crit­i­cal­ly eval­u­ate every­thing. What do we like about unions and our cur­rent work­ers’ rights régime? What don’t we like and what oppor­tu­ni­ties has this cre­at­ed for us to at least chal­lenge that?

For me, the oppor­tu­ni­ty is to think about hav­ing mul­ti­ple com­pet­i­tive unions on the shop floor. I don’t think of this as a mod­el that will lead to mul­ti­ple con­tracts. It might lead to no con­tracts. Every­thing that I’ve writ­ten on this sub­ject so far has been with the assump­tion that ULP pro­tec­tions against dis­crim­i­na­tion remain in place so that the boss can’t give one group of work­ers a bet­ter deal because they picked one union over anoth­er (or no union at all). If a boss makes a deal with any group of work­ers or impos­es new terms because a union got bar­gained to impasse, every­body gets the same thing.

Under a com­pet­i­tive mul­ti­ple union mod­el, I think no strike claus­es become basi­cal­ly unen­force­able. And these no strike claus­es have become real­ly dead­ly for unions in ways we don’t want to acknowl­edge. Cur­rent­ly, the work­ers who should be the most embold­ened at work, because they’re pro­tect­ed by a union, have a con­tract that rad­i­cal­ly restricts their abil­i­ty to protest. It’s not just strikes. It cur­tails the abil­i­ty to do slow down actions, and mali­cious com­pli­ance, and it forces the union rep to have to rush down to the job and tell their mem­bers, you have to stop doing this. And they end up feel­ing bit­ter toward the union lead­er­ship as much — if not more — than the boss for the con­di­tions that were agi­tat­ing them still being in place. And then their my union did noth­ing for me” sto­ries car­ry over to non-union shops. Every orga­niz­er has heard them.

We need to bring back the strike weapon. And that’s far eas­i­er said than done. But it’s real­ly hard to do when you’re severe­ly restrict­ed in your abil­i­ty for empow­ered work­ers to set an exam­ple for unor­ga­nized work­ers in tak­ing action and winning.

And, Kate, I have con­sid­ered the DFR. I can’t imag­ine a world of mul­ti­ple com­pet­i­tive unions in a work­place where there would­n’t be at least one union that says we’re going to be the anti-racist union, we’re going to be the fem­i­nist union, and we’re the union for you. With­out DFR, you’re right, there’s no legal guar­an­tees. But some­one steps into the vac­u­um and my hope is that at least cre­ates the poten­tial for mil­i­tan­cy when mil­i­tan­cy is called for in the work­place. With all the oth­er messiness.

There’s going to be plen­ty of yel­low unions and the boss is going to bring back employ­ee rep­re­sen­ta­tion pro­grams and com­pa­ny unions and all of that. But that mess is exact­ly what they deserve. They’ve for­got­ten that exclu­sive rep­re­sen­ta­tion is the mod­el that they want­ed — we didn’t, nec­es­sar­i­ly — in the 1940s and 1950s.

Bron­fen­bren­ner: I would­n’t be ready to throw out DFR. I think that there is too lit­tle democ­ra­cy, and too much dis­crim­i­na­tion in the labor move­ment. At this time, we already have right to work in most of the pub­lic sec­tor and most of the pub­lic sec­tor does­n’t allow strikes, but work­ers still strike. We see that work­ers are will­ing to strike even if they are not allowed to strike, as evi­denced by all these teach­ers, and we have to remem­ber the strike sta­tis­tics in this coun­try only report strikes that are over 1,000 work­ers and most work­places are under 1,000. We have a lot more strikes than are reported.

The labor move­ment is not going to strike more just because you get rid of no strike claus­es. Team­sters had the abil­i­ty to strike as the last step of their griev­ance pro­ce­dure for decades and they nev­er went on strike. I think what is more impor­tant is the ques­tion of what is going to change the cul­ture and pol­i­tics of the labor move­ment. I don’t think chang­ing the right to strike is going to do it.

What is going to make unions actu­al­ly fight back even on some­thing like fight­ing on Janus? They’re not even get­ting in the streets on Janus, so what makes you think they’re actu­al­ly going to strike on issues in the work­place? We need to think about why work­ers and unions are so hes­i­tant to strike. I do not believe that chaos nec­es­sar­i­ly is going to hap­pen. I think employ­ers are much more pre­pared for this. I think what will hap­pen is that the unions that have been effec­tive and have been work­ing with their mem­bers and edu­cat­ing their mem­bers and involv­ing their mem­bers will be fight­ing back and the ones that have been sit­ting back and not doing any­thing will con­tin­ue to sit back and not do any­thing and some will die.

The prob­lem with get­ting rid of exclu­sive rep­re­sen­ta­tion is that some unions are going to think aha this is what I’m going to do, this is an easy way out,” the same way peo­ple used to think oh it’s eas­i­er to orga­nize in health care, oh it’s eas­i­er to orga­nize in the pub­lic sec­tor, so rather than orga­nize in my indus­try, which is hard, I’m going to go try health care or the pub­lic sec­tor.” But they found that why can’t I win orga­niz­ing teach­ers the same way that AFT does” or why can’t I win orga­niz­ing in health care the same way SEIU is doing” and they dis­cov­ered that it’s not quite as easy as it looks.

Brooks: Yeah, I think Kate’s point is real­ly impor­tant: in a right-to-work set­ting, the employ­er anti-union cam­paign nev­er ends. The boss is con­stant­ly try­ing to con­vince and cajole work­ers into drop­ping union mem­ber­ship. And employ­er anti-union cam­paigns are real­ly effec­tive, which is why unions don’t win them very often.

If the Supreme Court rules against unions in Janus, anti-union cam­paigns are only going to gain strength. So, my fear, Shaun, is that you are being over­ly roman­tic. I just don’t think left-wing unions are going to sud­den­ly emerge and step into the void left by busi­ness-as-usu­al union­ism. If that was the case, then why has­n’t that already hap­pened with the 90 per­cent of work­ers that don’t have any union at all?

Rich­man: The struc­ture is a trap, and exclu­sive rep­re­sen­ta­tion is part of that. I don’t think we have a cri­sis of lead­er­ship. I want to turn to the pri­vate sec­tor because most of the poten­tial hope in aban­don­ing exclu­sive rep­re­sen­ta­tion is in the pri­vate sec­tor. Look at the UAW and their strug­gles at Volk­swa­gen and at Nis­san, which Chris is inti­mate­ly famil­iar with. I think all three of us could find fault in their orga­niz­ing strat­e­gy and tac­tics. Kate, I think you have more grounds than any­one in the coun­try to be frus­trat­ed because you’ve sci­en­tif­i­cal­ly proven what it takes to win and most unions have ignored that research for decades! But a third of the work­ers at Nis­san want to have a union. To do so, they have to win an exclu­sive rep­re­sen­ta­tion elec­tion where the entire pow­er struc­ture of the com­mu­ni­ty comes down on their heads argu­ing keep the UAW out of the South.

If they had eked out an elec­tion win and man­aged to win a con­tract a year down the line, at the end of the day they get the oblig­a­tion of hav­ing to rep­re­sent every­one and prob­a­bly the one-third of the work­ers who want­ed the union all along are the only ones that join. That’s insane. Charles Mor­ris threw out this the­o­ry a decade ago, in The Blue Eagle at Work, about how the NLRA was not intend­ed to have these win­ner-take-all exclu­sive rep­re­sen­ta­tion elec­tions. The point of the NLRA was mere­ly to say to employ­ers any­where there’s a group of work­ers that say hey we’re a union you must bar­gain with them in good faith. He argues that path­way is still open to unions. To the best of my knowl­edge a few unions polite­ly asked the NLRB for their opin­ion on that a cou­ple of times rather than all of us demand­ing that should be a valid path­way for union representation.

If you can win that exclu­sive rep­re­sen­ta­tion elec­tion, you should win it, and you should also be sad­dled with the bur­dens of DFR. But why can’t, and why should­n’t, the UAW file a peti­tion at every auto fac­to­ry in the coun­try right now and say we have mem­bers here and you need to bar­gain with us over their work­ing con­di­tions? And why should­n’t oth­er unions jump into the fray and claim to rep­re­sent their por­tion of the work­ers and dri­ve those non-union com­pa­nies nuts with a bunch of unions plac­ing demands on them, and orga­niz­ing to take action?

I think the work that Orga­ni­za­tion Unit­ed for Respect (OUR) is doing at Wal-Mart is a good exam­ple of that. They by no means have a major­i­ty of the work­ers at Wal-Mart. They are in a few strate­gic loca­tions. They are a nui­sance to the com­pa­ny. They just won a right that work­ers are allowed to wear union but­tons on the shop floor. Wal-Mart has giv­en work­ers rais­es in response to their agi­ta­tion. I’m not sug­gest­ing that that mod­el is per­fect or what we should all be doing, but I am say­ing that this should be an avenue open to us. And it only becomes open to us if we’re will­ing to exper­i­ment more with aban­don­ing exclu­sive rep­re­sen­ta­tion where it does­n’t work for us.

I would argue that in 90% of pri­vate sec­tor work­places where win­ning these elec­tions is not pos­si­ble it’s not work­ing for us currently.

Bron­fen­bren­ner: The com­pre­hen­sive cam­paign-orga­niz­ing mod­el should be part of every orga­niz­ing effort. Work­ers are pro­tect­ed under the NLRA when they engage in con­cert­ed activ­i­ty and, as I say in all my orga­niz­ing research, the union should be act­ing like a union from the begin­ning of the cam­paign. Unions should also be orga­niz­ing around work­place prob­lems and going to the employ­er and engag­ing in actions dur­ing the orga­niz­ing cam­paign. I’ve been say­ing for 30 years that you don’t wait to start act­ing like a union until you win. But there is seri­ous push­back against that ele­ment of my mod­el from many organizers.

Unions are very hes­i­tant to start tak­ing on the employ­er before they win the major­i­ty. But there are unions that do that. It’s not just OUR. It’s Ware­house Work­ers Unit­ed, SEIU 32BJ, RWD­SU, Com­mu­ni­ca­tions Work­ers, the Team­sters. All have run cam­paigns where they begin tak­ing on the employ­er before the union has been rec­og­nized or cer­ti­fied. The unions that have been doing com­pre­hen­sive cam­paigns are doing it in bar­gain­ing and it’s being done in orga­niz­ing by the unions who are win­ning in orga­niz­ing. So they’re not wait­ing until they win.

Rich­man: Thir­ty or forty years into peo­ple get­ting real­ly seri­ous about orga­niz­ing as a sci­ence and as a craft, the fact that most unions still haven’t embraced an orga­niz­ing model…

Bron­fen­bren­ner: Peo­ple have been seri­ous about orga­niz­ing as a craft from the begin­ning. It’s just that no one wrote very good books about what they did. The IWW and the UAW orga­niz­ers, and the tex­tile orga­niz­ers, they were orga­niz­ing using the same strate­gies that are being done now. No one wrote good books about what they did.

Rich­man: Sure, that’s fair. But the fact that unions are not fol­low­ing an orga­niz­ing mod­el that’s informed by your research and oth­er unions’ best prac­tices sug­gests it’s not a mat­ter of cul­ture but the legal frame­work that we find our­selves trapped in. Most of the pres­sure on a union leader is to bring back good con­tracts for the mem­bers you cur­rent­ly rep­re­sent and keep win­ning re-elec­tion. So that puts more resources into griev­ance han­dling and bar­gain­ing and it leads to the cost cut­ting in orga­niz­ing campaigns.

Bron­fen­bren­ner: I dis­agree. For the last three decades ser­vic­ing and edu­ca­tion bud­gets have been cut while huge amounts of the labor movement’s finan­cial and staff resources have been shift­ed into labor law reform. And I can tell you because I’m part of the debate they don’t want to have about what they they need to do to change to orga­nize. But most either think they are doing every­thing they can, or it is too hard to do any­thing dif­fer­ent. It is the law that is the problem. 

Either way the shared under­stand­ing is that unions should put resources into pol­i­tics and in get­ting labor law reform because try­ing to do com­pre­hen­sive orga­niz­ing cam­paigns we’re ask­ing them to do is too dif­fi­cult.” But they’re not putting resources into griev­ance han­dling any­more. They are putting it into pol­i­tics and labor law reform.

Rich­man: The approach to labor law reform has been too much about try­ing to pre­serve the sys­tem. The oppor­tu­ni­ty of the moment is to think beyond the bound­aries of the work­place. Enter­prise lev­el bar­gain­ing has been killing us since the 1970s. As long as union mem­ber­ship is tied to whether or not some group of work­ers vot­ed to form a union some­time in the past with­in the four walls of your work­place, that just incen­tivizes the off­shoring and con­tract­ing out that’s real­ly what has dec­i­mat­ed the labor movement.

Hump­ty Dump­ty is sit­ting on the wall and if Neil Gor­such and John Roberts kick him off I am not par­tic­u­lar­ly inter­est­ed in being one of the king’s hors­es and men try­ing to put him togeth­er again. At that point the sys­tem is fun­da­men­tal­ly bro­ken and we need new demands about what kind of sys­tem we want and new strate­gies about how we exploit the bro­ken­ness of the sys­tem to make them regret what they have done.

Exclu­sive rep­re­sen­ta­tion — com­bined with agency fee and DFR — worked for a long time. But if you knock one piece out, it all falls apart. We should­n’t be pin­ing for bygone days. We need to be think­ing for­ward about what oppor­tu­ni­ties this cre­ates. I hope that some peo­ple get inspired to try some­thing as crazy as the IWW say­ing fuck it, we’re going to orga­nize in dif­fer­ent work­places and agi­tate for work slow­downs and try to gain a few mem­bers in a few places we don’t care about expen­di­tures of resources and dues. We’re going to cre­ate some chaos.

Brooks: I share Kate’s con­cerns, I believe that many unions have devolved into high­ly legal­is­tic orga­ni­za­tions. So the solu­tions they are pur­su­ing to our cur­rent prob­lems are high­ly tech­ni­cal and legal in nature, which means that lob­by­ing and elect­ing Democ­rats often becomes their top pri­or­i­ty. Laws are impor­tant, but unions should spend far more time and resources on orga­niz­ing com­pre­hen­sive cam­paigns that build sup­port among large majori­ties of work­ers, win­ning them over to a plan for col­lec­tive action that can change con­di­tions on the job and in the community.

Instead of this kind of orga­niz­ing, what we’ve seen over the past few decades is the increas­ing con­fine­ment of class strug­gle to small­er and small­er seg­ments of work­ers. Few unions these days aim to rep­re­sent all work­ers in an indus­try. How many unions are engaged in pat­tern bar­gain­ing and set­ting con­tract stan­dards across an indus­try or open­ly orga­niz­ing toward a mas­ter agree­ment? To your point, Shaun, unions have become lim­it­ed to firm-lev­el rep­re­sen­ta­tion. Or even just a bar­gain­ing unit with­in a firm, since many do not even try to orga­nize every­one who works for the same employer.

Mem­bers-only union­ism just con­tin­ues this trend as unions move to rep­re­sent an even small­er frac­tion of work­ers, not as a step­ping stone to build­ing a major­i­ty, but as a strat­e­gy to get out of pro­vid­ing ser­vices to work­ers who don’t pay dues. Ulti­mate­ly, I believe this is a capit­u­la­tion to the employ­ers’ right-to-work frame­work and a retreat from the kind of broad-based orga­niz­ing that the labor left has been his­tor­i­cal­ly com­mit­ted to.

Bron­fen­bren­ner: We can no longer talk about the work­place sole­ly through a U.S. frame­work. Own­er­ship struc­tures are so large, dif­fuse, and com­plex that what we should be doing is orga­niz­ing and bar­gain­ing and build­ing rela­tion­ships between work­ers across the entire cor­po­ra­tion world-wide, com­pa­ny-wide, and indus­try-wide. That requires get­ting work­ers to under­stand that they need to build pow­er to take on whomev­er the deci­sion-mak­ers in the com­pa­ny are. It is not the boss that they see once a year at the annu­al hol­i­day par­ty. It is who­ev­er has the mon­ey and real­ly makes the deci­sions in the ulti­mate par­ent com­pa­ny. And that requires build­ing alliances local­ly, nation­al­ly, and inter­na­tion­al­ly, and build­ing a much broad­er labor movement.

It also means under­stand­ing that the per­son who does­n’t pay union dues in their shop is not the prob­lem. The prob­lem for work­ers is that now what they have is the cham­ber of com­merce fight­ing against their right to bar­gain and the state at all lev­els is inter­fer­ing with eco­nom­ic and union rights. Their boss is now some investor some­where who has decid­ed to buy and sell their com­pa­ny and their jobs who does not care what they make or whether they stay open or not.

You have to fig­ure out what they care about because that is what gives unions lever­age. That’s why work­ers in Amer­i­ca have to get to know work­ers in Mex­i­co and work­ers in Europe, those kinds of rela­tion­ships, that is what the labor move­ment needs to spend their ener­gy on. That’s what I’m going to spend my ener­gy on. The U.S. labor move­ment can­not afford to be pick­ing pet­ty fights between work­ers who are pay­ing dues and work­ers who aren’t pay­ing dues because they need each other.

Rich­man: The struc­ture is a trap part­ly by forc­ing unions to focus on indi­vid­ual bar­gain­ing units, indi­vid­ual work­places and some­how win­ning them one-by-one. What we should be doing is not retreat­ing from our bar­gain­ing units, but claim­ing to rep­re­sent the will­ing work­ers in every com­pa­ny in every indus­try. I’m try­ing to inspire any­one who is out there read­ing this to think about an oppor­tu­ni­ty to spread out wider — in a much more bare bones, scrap­pi­er way — but one that puts the union idea in many more work­places. To get the word out now, rather than we’ll get to you after we some­how win Nis­san or Volk­swa­gen. Because that’s not working.

Bron­fen­bren­ner: But you’re not going to get labor law changed unless you have pow­er. It takes polit­i­cal pow­er to get labor law changed. You can’t get polit­i­cal pow­er until you orga­nize a lot. You’re ask­ing for a labor law change. The point is that focus­ing on labor law is back­wards. We only get labor law reform after we do a great deal of orga­niz­ing. First you have to orga­nize and build power.

Dur­ing the whole Employ­ee Free Choice Act (EFCA) fight every­one stopped orga­niz­ing and spent all their ener­gy on EFCA. That’s the dan­ger of labor law reform.

Kate Bron­fen­bren­ner is direc­tor of labor edu­ca­tion research at Cor­nell Uni­ver­si­ty, Chris Brooks is a staff writer and orga­niz­er with Labor Notes and Shaun Rich­man is a for­mer orga­niz­ing direc­tor at the Amer­i­can Fed­er­a­tion of Teachers.
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