Unions Are at Their Lowest Levels in Decades—To Gain Power We Must Stop Following the Rules

Shaun Richman

Because activists tend to conflate our legal rights with our actual human rights, we doggedly pursue age-old strategies because “it is what it is.” We must stop this. (Photo by Michael S. Williamson/The Washington Post via Getty Images)

If Don­ald Trump’s first week as pres­i­dent wasn’t depress­ing enough, Thurs­day brought a report that showed union mem­ber­ship fell in 2016. Union mem­bers are now just 10.7% of the over­all work­force and only 6.7% of the pri­vate sec­tor. Those are the low­est lev­els since the Bureau of Labor Sta­tis­tics (BLS) began track­ing them in the ear­ly 1980s — and pos­si­bly the low­est since the 1920s.

Boss­es and union haters will crow that unions are dying insti­tu­tions and even our friends may write eulo­gies. But this funer­al is for the wrong corpse.

What may be dying is the sys­tem of col­lec­tive bar­gain­ing that devel­oped in the years after World War II. That sys­tem is one where unions exclu­sive­ly bar­gain on behalf of work­ers on a com­pa­ny-by-com­pa­ny basis, not just for wages but also for an ever-expand­ing port­fo­lio of employ­er-paid ben­e­fits. These col­lec­tive bar­gain­ing agree­ments empha­size peace­ful res­o­lu­tion of dis­agree­ments through griev­ance pro­ce­dures, medi­a­tion and arbi­tra­tion and can cov­er many years at a time with guar­an­tees of no strikes and lockouts.

When it worked, it real­ly worked. The post­war peri­od is marked by an his­toric rise in com­pen­sa­tion and liv­ing stan­dards for Amer­i­can work­ers and a sus­tained reduc­tion in inequal­i­ty. Unit­ed Auto Work­ers (UAW) nego­ti­a­tions used to receive the same breath­less news cov­er­age that the stock mar­ket receives today. Wage increas­es won by the union affect­ed the wages of even non-union work­ers in total­ly unre­lat­ed industries.

But there were prob­lems with the sys­tem that made its down­fall inevitable. The empha­sis on employ­er-spon­sored ben­e­fits meant that new com­pa­nies could waltz in and instant­ly be com­pet­i­tive by offer­ing their employ­ees a stingi­er ben­e­fits pack­age (and by fierce­ly resist­ing union orga­niz­ing). This, in turn, drove union­ized com­pa­nies to out­source and sub­con­tract jobs, or ship them over­seas, to replace humans with robots and to over­work their exist­ing employ­ees to avoid hir­ing more work­ers. Arguably, such labor-sav­ing” mea­sures account for much of the decline in union den­si­ty in the last 30 years.

This col­lec­tive bar­gain­ing frame­work also sys­tem­at­i­cal­ly sapped unions of their mil­i­tan­cy. Con­gress made sol­i­dar­i­ty strikes and sym­pa­thy boy­cotts ille­gal. The courts stripped strik­ing work­ers of legal pro­tec­tions. And, as labor schol­ar and activist Stan­ley Aronowitz con­vinc­ing­ly argues in his book, The Death and Life of Amer­i­can Labor, the no-strike” and man­age­ment rights” claus­es of most col­lec­tive bar­gain­ing agree­ments box unions into a posi­tion where they are restrict­ed in what they can fight for and when. Most have a legal oblig­a­tion to tamp down spon­ta­neous work­er protest while con­tracts are in effect.

We saw a dispir­it­ing exam­ple of this when the union that rep­re­sents the Rock­ettes rushed to issue a state­ment to empha­size the dancers’ con­trac­tu­al oblig­a­tion to not refuse to work at Trump’s inau­gu­ra­tion. Iron­i­cal­ly, if the work­ers weren’t cov­ered by a col­lec­tive bar­gain­ing agree­ment, they would have had a far stronger legal right to refuse to dance.

Con­trast that with the inspir­ing exam­ple of the New York Taxi Work­ers Alliance (NYT­WA), which quick­ly orga­nized a strike Sat­ur­day night at the John F. Kennedy Inter­na­tion­al Air­port to protest Trump’s anti-Mus­lim ban. The taxi work­ers don’t have col­lec­tive bar­gain­ing rights so they don’t have a no-strike clause. (They also have few ben­e­fits or job pro­tec­tions and work long hours for very low pay; col­lec­tive bar­gain­ing does have its ben­e­fits.) But even though the NYT­WA is not legal­ly cer­ti­fied, it still man­aged to build an orga­ni­za­tion that is nim­ble enough to strike for bet­ter pay and for human rights.

Toward a more per­fect union

Because activists tend to con­flate our legal rights with our actu­al human rights, we dogged­ly pur­sue age-old strate­gies because it is what it is.” We must stop this, and pur­sue an inter­nal debate that is crys­tal clear about what we can’t con­trol at the moment — Con­gress, cap­i­tal mobil­i­ty and our psy­chot­ic president’s atten­tion span — and what we can — our strat­e­gy, struc­ture and demands.

Take for instance the fight for uni­ver­sal health­care. One of the flaws of Oba­macare was that it pre­served the employ­er-based health insur­ance sys­tem, which was devel­oped as an acci­dent of col­lec­tive bar­gain­ing. Dur­ing World War II, the gov­ern­ment froze wages to fight infla­tion, but did allow unions to nego­ti­ate for fringe” ben­e­fits. Many work­ers emerged from the war with health insur­ance through their job, but union lead­ers at the time viewed this as a stop­gap until Social Secu­ri­ty could be expand­ed to pro­vide uni­ver­sal healthcare.

All these decades lat­er, unions can and should lead the fight for Medicare for All.” Get­ting health insur­ance pre­mi­ums off employ­ers’ pay­rolls and replac­ing them with a pay­roll tax that all employ­ers pay equal­ly would take ben­e­fits out of com­pe­ti­tion (and get boss­es out of the busi­ness of deter­min­ing care and polic­ing their work­ers’ vaginas).

I know a lot of lead­ers and activists who view the ben­e­fits nego­ti­at­ed into con­tracts as the union advan­tage,” which makes mem­ber­ship attrac­tive and is an essen­tial part of what unions do. But offer­ing a com­pelling vision of uni­ver­sal rights and lead­ing fights to win and pre­serve them could also be what unions do, and is what unions do in most oth­er indus­tri­al­ized nations in the West.

The ghost of labor peace

The threats that labor faces from a Repub­li­can gov­ern­ment can­not be down­played, and could tempt one into a depres­sive funk. A bill to make right-to-work” laws the law of the land was intro­duced in Con­gress on Wednes­day. But if we lose that fight, there are some strate­gic choic­es that are still with­in our control.

The first is whether to aban­don exclu­sive rep­re­sen­ta­tion and kick out the scabs.

The com­bi­na­tion of exclu­sive rep­re­sen­ta­tion and agency fee is a unique­ly Amer­i­can frame­work, and it, too, arose out of World War II. That wage freeze described ear­li­er fol­lowed unions’ no-strike pledge to aid wartime pro­duc­tion. Work­ers who were frus­trat­ed with the lack of rais­es and with union lead­er­ship oblig­ed with pre­vent­ing job actions stopped pay­ing dues in protest. The gov­ern­ment grant­ed those wartime con­tracts a main­te­nance of mem­ber­ship” clause that pre­vent­ed work­ers from quit­ting the union that rep­re­sent­ed them, which evolved into today’s agency fee.”

It is that com­bi­na­tion — of exclu­sive rep­re­sen­ta­tion, agency fee and no-strike and man­age­ment rights claus­es — that make it pos­si­ble (and arguably nec­es­sary) for unions to agree to shared sac­ri­fice” when nec­es­sary (and some­times lop­sided sac­ri­fice when unnecessary).

This is a cru­cial point: Manda­to­ry union fees are not the com­pen­sa­tion that unions get for the costs they bear for bar­gain­ing and rep­re­sent­ing all the work­ers in the unit (although, those costs are sig­nif­i­cant). They are the com­pen­sa­tion for the polit­i­cal costs of rep­re­sent­ing all the work­ers in a shop and main­tain­ing labor peace.

If unions refused to be exclu­sive rep­re­sen­ta­tives, it would open the door to mul­ti­ple com­pet­ing unions at each work­place. It would make no-strike claus­es impos­si­ble to enforce. It would mean that in every major issue that gets set­tled with the boss, there could be a stub­born group of work­ers who go its own way to keep up the fight or raise larg­er demands. It would also mean a pletho­ra of less con­fronta­tion­al, employ­er-friend­ly asso­ci­a­tions could com­pete with unions on their own turf.

In essence, it would mean the end of labor peace. Since cor­po­ra­tions long ago decid­ed they weren’t inter­est­ed in labor peace, while we main­tained the illu­sion that we could con­vince them to give it a try, it might be time to give up the ghost.

A union of leaders?

Anoth­er key deci­sion that would be entire­ly with­in unions’ pow­er should mem­ber­ship become vol­un­tary is which work­ers to tar­get for recruit­ment. Cur­rent­ly, most open shop unions try to sign up all the work­ers they rep­re­sent. Often, they fall far short of that goal.

When a work­place has few mem­bers, it makes the first union mem­bers de fac­to rep­re­sen­ta­tives, if not the actu­al shop stew­ards. But what if that ear­ly join­er is not respect­ed by his cowork­ers? What if he’s a sex­ist? What if he’s bad at his job and his cowork­ers fre­quent­ly have to pick up the slack? In its rush to pick up dues-pay­ing mem­bers, a union could alien­ate 10 times as many poten­tial people.

This is not how we struc­ture new union orga­niz­ing cam­paigns. In those, we tar­get nat­ur­al lead­ers. We look for work­ers who are brave, who ask smart ques­tions, who are good at their jobs and respect­ed by their cowork­ers. Often, the first work­er to inquire about orga­niz­ing a union, and from whom we learn as much as we can about the work­place and its lead­ers, is kept off the orga­niz­ing com­mit­tee because he doesn’t fit the bill.

This is a rad­i­cal­ly dif­fer­ent way of view­ing a union­ized work­place for most Amer­i­cans. It is essen­tial­ly the way that French unions orga­nize. Union den­si­ty in France is even small­er than in the Unit­ed States, yet unions there are capa­ble of orga­niz­ing mas­sive gen­er­al strikes. There are many rea­sons for that, includ­ing the legal frame­work for bar­gain­ing, but the fact that French unions are lead­er­full” orga­ni­za­tions is also a factor.

We don’t con­trol the legal frame­work for col­lec­tive bar­gain­ing, but we can con­trol who we count as mem­bers. And that kind of dis­tinc­tion between what we can’t change and what we can must be ana­lyzed and sharpened.

Col­lec­tive bar­gain­ing, with exclu­sive union rep­re­sen­ta­tion and agency fee, but lim­it­ed to with­in the four walls of a spe­cif­ic employ­er, is what a union is” to most peo­ple. But it is not how unions look and func­tion in oth­er places, nor, indeed, in our own history.

Unions have been around since the ear­li­est days of our repub­lic, and the con­cept of work­ers band­ing togeth­er will out­live all gov­ern­ments. We get to decide what that looks like.

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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