The Promise and the Peril of Members-Only Unions

Shaun Richman November 4, 2015

At a time when unions are increasingly under threat, some bold experimentation could be the right step forward. But we should understand that that experimentation will be risky. (vintspiration / Flickr)

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

In their report for the Cen­tu­ry Foun­da­tion, Moshe Mar­vit and Leigh Anne Schriev­er high­light case stud­ies in mem­bers-only” orga­niz­ing, where unions can­not reach major­i­ty sta­tus for legal cer­ti­fi­ca­tion but main­tain a work­place orga­ni­za­tion made up of a minor­i­ty of work­ers that press­es issue cam­paigns against the boss. Charles J. Mor­ris, in his 2005 book The Blue Eagle at Work, reminds us that in its first few years, the Nation­al Labor Rela­tions Board (NLRB) used to cer­ti­fy minor­i­ty unions as the bar­gain­ing agent for that union’s mem­bers only, and that such a mech­a­nism still exists (although the mod­ern Board has dodged efforts to get a rul­ing to respond to Mor­ris’ asser­tion). Some unions in right to work” states are con­tem­plat­ing mem­bers-only” cer­ti­fi­ca­tions as a solu­tion to the free rid­er” prob­lem, that work­ers can choose to opt out of join­ing (and pay­ing dues to) a union, but the union is still legal­ly com­pelled to rep­re­sent them. You want the con­tract? Join the union,” goes the sim­plis­tic (albeit attrac­tive) logic.

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

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

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

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

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

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

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

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

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

If labor cedes exclu­siv­i­ty, we can expect more inde­pen­dents like ACE to fill the void. We should also expect the Horse­shoers and Hod Car­ri­ers and the whole cot­tage indus­try of cor­rupt unions that were long ago thrown out of the AFL-CIO for unprin­ci­pled raid­ing to troll around for dis­grun­tled dues pay­ers. And nobody should be sur­prised if Koch broth­ers-fund­ed, States Pol­i­cy Net­work affil­i­ates like Michigan’s Mack­inac Cen­ter shop around the legal and mem­ber ben­e­fits ser­vices of new, explic­it­ly anti-union unions.”

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

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

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

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

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

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

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

Shaun Rich­man is an In These Times con­tribut­ing writer and the Pro­gram Direc­tor of the Har­ry Van Ars­dale Jr. School of Labor Stud­ies at SUNY Empire State Col­lege. His Twit­ter han­dle is @Ess_Dog.
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