Unasked Questions and Unasked for Answers on the State of Labor Today
by Ellen Dannin
In those heady days when John Sweeney was running for president of the AFL-CIO, a decade ago, change was in the wind. Suddenly there was a rejection of the tight control and narrow viewpoint of the Lane Kirkland administration and a welcoming openness to new ideas. Then, as now, the concern was the decline in union membership and what this meant for union power.
That openness to new ideas is gone now, replaced by a narrowed focus only on organizing more members and passing the Employee Free Choice Act (EFCA), proposed legislation that is intended to make it easier to organize private sector unions and to negotiate first contracts after organizing.
EFCA is not my concern here. Rather, I am concerned by the narrowing of strategies to a sole focus on EFCA. The danger is: what if EFCA cannot provide a complete remedy for everything that ails unions? What if this sole focus means that unions are not addressing problems that are also responsible for the decline in union membership? From where I sit, I see danger signs that important union problems are not being addressed, and that should concern us all.
Here, then, are a few issues, critical for union survival, that are not being targeted, let alone discussed.
First, what about the public sector? Public sector employees are the most highly unionized workers in the country. If it were not for public sector union members, total union membership in the United States would be in single digits.
Today public sector jobs are under siege at every level of government. In some cases that attack has been direct. For example, after the 2004 elections, and almost before he was sworn in, Governor Mitch Daniels joined Republican governors in Missouri, Maryland, and Kentucky who unilaterally eliminated public sector workers' right to bargain collectively. These governors rescinded collective bargaining agreements and imposed inferior working conditions. Governors or legislatures in Iowa, Mississippi, and California attempted to do the same. President Bush has been relentless in trying to prevent employees of the Department of Homeland Security from having the rights to union representation and to bargain collectively.
Public sector unionization at all levels of government have also been under assault as a result of an unprecedented campaign to privatize government. When these jobs are contracted out to the private sector, a unionized public workforce can be quickly converted to an unorganized workforce overnight. Public sector unions may not realize they have the right to demand continued representation of their members when the public employees are shifted to the payroll of the private employer. As a result, union membership declines. Or the private employer replaces the public employees with its own employees, and these employees are unlikely to have union representation. As a result, union membership declines.
This is a serious problem for the union movement.
Yet, despite this, there is no focused union campaign against privatization or to protect the jobs of public sector workers. Many of the public sector unions are engaging in highly creative campaigns that, with the return of Democrats to the majority, are now having some effect in stemming the hemorrhage of public jobs. They could do better were the union movement as a whole to take up this cause. Unfortunately, it has not. Private sector unions may have plausible reasons not to join this cause. They are feeling besieged and overwhelmed with the magnitude of challenges they face. They may look to the far higher percentage of union membership in the public sector and conclude that the issues that beset public workers are not serious.
Public sector union leaders, however, are using opportunities to speak to general audiences to promote EFCA, legislation that has no application whatsoever to the public sector. For example, a couple years ago when Gerald McEntee, president of the American Federation of State, County and Municipal Employees (AFSCME) gave a major talk at the University of Toledo, his topic was solely about EFCA.
There is nothing wrong with this sort of union solidarity and mutual aid and support. However, it should not go only one way. The mutuality of support that solidarity demands is important not just as a lofty principle but as a matter of survival. If unions are to retain any bargaining power, attention must be paid to the welfare of public sector unionism. That means that private and public sector unions need to speak out against the use of privatization to destroy unionization. They also need to speak out against the use of privatization as a conduit to send public tax dollars into private pockets, resulting in the corruption and misspent money that is everywhere these days.
Privatization is not just a public sector union problem, and it is not a trivial issue for unions as a whole. Unions fare better in collective bargaining and organizing when more workers are organized. The more workers who are organized, the easier it is to take wages out of competition and negotiate better terms. In this time of powerful attacks on and erosion of wages, benefits, and working conditions, unions desperately need to retain members they already have. Not making a visible fight against privatization is ceding territory that unions need to hold.
Second, it takes more than just organizing to build union power. Workers do not join unions just for the t-shirt. They join unions because they see collective power as the only way to get fair treatment at work, better pay and benefits, and respect.
But these days, collective bargaining is a minefield that unions enter at their peril. Rather than being an exchange of ideas leading to a reasoned set of compromises, collective bargaining these days can be the path to de-unionization and the loss of union members. This situation is the result primarily of two legal doctrines invented by judges. The first doctrine, allows an employer to permanently replace employees who strike. The second allows an employer to impose its terms if bargaining reaches an impasse. The two doctrines offer an employer who would rather go it alone than negotiate terms of employment an easy way out. First, it proposes concessionary terms the union will not accept. This will lead to an impasse. Then, impose terms, including lowering current pay and benefits. If the union strikes, permanently replace the workers, and, presto, the annoying union is gone.
There are actually more details, but this is the basic outline. Other alternatives exist, but most lead to de-unionization. To see the possibilities and the interplay between implementation upon impasse and striker replacement, think of the impact of these two doctrines as creating a branching tree of possible outcomes, including, in part: (1) the parties reach an agreement; (2) the parties reach an impasse but eventually resolve their differences; (3) the parties reach an impasse, the employer implements its final offer, and the parties then reach an agreement; (4) the parties reach an impasse, the employer implements its final offer, the parties then fail to reach an agreement, and the union becomes moribund leading to de-unionization ñ either by its walking away or through decertification; (5) the parties reach an impasse, the workers strike, the employer replaces the strikers (permanently or temporarily), the parties reach an agreement on workplace terms and on striker reinstatement, and many or all strikers are recalled to work; (6) the parties reach an impasse, the workers strike, the employer replaces the strikers (permanently or temporarily), the parties reach an agreement on workplace terms and on striker reinstatement, few or no strikers are recalled to work, and the union eventually becomes moribund and is decertified; (7) the parties reach an impasse, the workers strike, the employer replaces the strikers permanently, and after one year, when they are ineligible to vote, a decertification election is held and the union is decertified; (8) the parties reach an impasse, the employer locks out the workers and then replaces them (permanently or temporarily), the parties reach an agreement on workplace terms and on reinstatement, and many or all the employees are recalled to work; (9) the parties reach an impasse, the employer locks out and replaces the workers (permanently or temporarily), the parties reach an agreement on workplace terms and on reinstatement, few or no employees are recalled to work, and the union eventually becomes moribund and is decertified.
Other outcomes are possible, some of which lead to agreement, some of which lead to disempowering the union, and some of which lead to the end of collective bargaining. The mere existence of these doctrines means that unions enter negotiations worried about impasse, and employers enter negotiations knowing union negotiators are worried about impasse. The result is that worker bargaining power is undermined and unions are less effective in protecting workers and improving their lives.
This problem is not just an issue for the first contract negotiated. A study I did found that unions with relationships of over twenty-five years are especially vulnerable.
Unions who want to organize workers need to be worried about collective bargaining. After all, why would an employee risk joining a union if this is where it takes you -- no power and no job. That is worse than a lousy job and no power.
Third, unions are saying nothing about the major force that is mowing down those unions that were the strength of the union movement for decades. Why the silence about globalization and the havoc it has wreaked on industrial unions?
I have heard union leaders and representatives talk about globalization as if it were a force of nature.
Globalization is not a natural phenomenon. It is a force because people created the conditions that promote it. Globalization is promoted by groups and people with outsized power, but that does not mean unions should throw in the towel. This is precisely the sort of problem organization and solidarity were meant to fight. In fact, this is the sort of problem unions have taken on in the past. The powerful do not always win.
For example, the most powerful people in the United States decided they wanted to destroy the National Labor Relations Act when it was enacted in 1935. In its first months, they filed ninety-five injunctions in federal district courts to restrain the NLRB from functioning. This was a period in which this new agency was just getting set up across the nation. The Liberty League's leaders included Democratic presidential candidates such as John Davis and Alfred Smith, Republican governors and legislators, and industrialists connected with companies such as General Motors, DuPont, U.S. Steel, J.P. Morgan, Montgomery Ward, General Foods, Consolidated Gas, Weirton, and the Empire State Building. This was the gang of Hal Roach, the creator of the "Our Gang" movies. One member alone offered $15 million to the cause of the Liberty League. They had international ties to ultra-conservative groups in Europe who were then rising to power.
And yet by 1936 this powerful group was on the ropes, and by 1940 the Liberty League went out of business.
Globalization and powerful anti-union groups are not a new problem, but they are a problem that unions must once again face up to directly. In doing so, it is important that unions identify the causes of their problems and distinguish them from symptoms.
The most important example of where unions are confusing the two is the case of the National Labor Relations Board and the National Labor Relations Act. I have discussed this issue at length in Taking Back the Workers' Law - How to Fight the Assault on Labor Rights (Cornell University Press 2006). Here, I will raise just a couple of issues for your consideration.
As I talk with people, I find that many believe things about the National Labor Relations Act that are not accurate on a purely objective basis. For example, people complain that its remedies are weak and that it gives employers a right of free speech.
In fact, the NLRA does not prescribe any remedies. It does set out a standard that remedies are supposed to meet. That standard says that remedies must promote the NLRA's policies of promoting equality of bargaining power, mutual aid and support, and the right to organize and engage in collective bargaining to co-determine working conditions. No one, though, asks for remedies that meet these goals. The blame for this failure belongs both to NLRB attorneys who seek a standard set of traditional remedies that were created who know how and union representatives and lawyers who just accept this "tradition" and never ask for, let alone demand, remedies that do what the NLRA says they are supposed to do.
The NLRA does not have a speech right, and whatever it says about speech is written in neutral language that can apply to unions and employees as well as employers. The NLRA as applied has resulted in the judicial creation of an employer speech right. Unions could demand that the NLRB take those judge-made rights and demand that they now be applied to protect both unions and employees, a development that would better track the law as written.
This is an example of the price of failing to be vigilant about the rights one has: they get taken away.
But they can be retaken. If two generations back the powerless toppled the powerful, unions can now retake these rights and honor the struggles of our forebears who fought for these rights.
In doing this, unions must stop cheering for the demise of the NLRA and NLRB. They are not the enemy. They are territory that was created to be union and worker property. Unions have been failing to defend that territory with vigor by attacking the enemies of unions. Unions (and the employees who depend on them) can never get anywhere by retreating. It is time that unions fight to get this territory back and see what a difference it can make.
For example, consider the problem of delay in enforcing NLRA rights and in elections. Most people believe that all NLRB cases drag on for many years. First, about 90% of cases settle, and those settlements happen in a period measured more in weeks and months than years. Second, some cases do drag on. The issue is not that they do; the question is why they do and what unions can do to attack this problem. Here are some of the factors that promote delay.
The Republicans have made the NLRB contested territory on which they have been executing a scorched earth tactic. To look at events just since the Reagan Administration to now, we saw Republican administrations make every effort to slow cases down and change the interpretation of the NLRA to destroy worker rights. This is the equivalent of a neutron bomb attack. The law on the books is unchanged. But the law is effectively destroyed.
Their key tactics were and still are appointing NLRB members who are hostile to NLRA rights and refusing to fill vacant NLRB seats. The result of these two tactics is to pervert the law and to cause delay. Constantly changing the law's interpretation has also increased appeals and the time it takes to resolve a case. These tactics were also an invitation to those employers who are enemies to workplace rights to be aggressive. Reagan began these tactics and first saw results in 1984 when longstanding NLRB interpretations of the NLRA were overturned. This continued through the Bush I administration and has resumed during the Bush II administration. Clinton gave scant attention to unions and after 1994 and the election of an ultra-conservative Republican Congress, he was powerless. Throughout his administration, so many Board seats were vacant that cases could not be decided, and Congress vigorously opposed approving Board members who were sympathetic to worker rights.
In other words, for decades the cause of problems at the NLRB has been an all-out assault against NLRA rights and the NLRB's enforcement of them. The cause lay with congressional representatives and those who supported them and put them in office to destroy government. This was a radical, take-no-prisoners group who were so committed to their program to attack government that they actually shut down the government. They still exist, and they are still as willing as ever to attack worker rights.
This, then, was the enemy unions have been facing for the last twenty years. The NLRA and NLRB were not the cause. They were the battleground on which the struggle took place and were home to frustrated NLRB employees who went to work there because they believed in enforcing worker rights.
The attack should have been directed at the cause. Instead, there were calls for sit ins and demonstrations at NLRB offices around the country. The Republicans must have loved that.
Republicans must also love it when union leaders talk about not filing cases with the NLRB as if this were a union victory.
They must love it when unions talk about wanting the NLRA repealed. At a minimum, this will mean that at-will employment is restored as the fundamental law of the land, and employees have to survive in a free-fire zone. But far more important, that repeal would eliminate the only statute in the United States that declares it to be the policy of this country to promote the policy and practice of collective bargaining.
People fought and died for these rights. It took years, decades, centuries to gain that territory. Once lost, it may never be regained.
Workers saw the enactment of the NLRA as encouragement to organize unions. It can have that power again, but only if unions resolve to retake this territory and plant the flag there. Surely, union efforts to organize more workers and stop union decline will be meaningful and successful only when carried on in a country whose law still states that workers have the right to organize unions and bargain collectively to codetermine their workplace rights. To make that happen, the real enemies of unions must be identified and fought, the struggles of friends and allies must be supported, and we must retake the Workers' Law.
Ellen Dannin, Professor of Law at Pennsylvania State University's Dickinson School of Law, is the author of Taking Back the Workers' Law - How to Fight the Assault on Labor Rights (Cornell University Press 2006) and a former National Labor Relations Board attorney.