Pope, Bruno, and Kellman lay out the case for how organized labor is being strangled by existing labor laws and employer repression. One of their principle concerns is to reform the system of exclusive representation that shapes unions in the United States. Exclusive representation was introduced into the National Labor Relations Act in response to fear by legislators of industrial chaos or civil war. Such chaos was believed to be possible if there were multiple unions competing with one another and attempting to bargain with an employer. The authors offer a useful critique of exclusive representation and question whether a different system should be introduced. At the same time, they do not address what I believe to be the preeminent concern, particularly in times such as these: the possibility of the introduction of company “unions” in the absence of exclusive representation.
Employers’ ability to involve themselves in their workers’ right to choose how they organize undermines the possibility of real democracy.
Abandoning exclusive representation creates conditions in which there could be not only competition from other unions, but also attempts by employers to create organizations positioned as allegedly representing workers, but which in fact prioritize the interests of the employer class. This could significantly undercut legitimate workers’ organizations, most of which could never match the resources that employers could shower upon their own sanctioned organizations.
For this reason, Pope, Bruno, and Kellman should incorporate a very strong stand against any employer involvement—including but not limited to interference—in workers’ choices of whether, when, and how they should be represented. In fact, the matter of employer involvement must become a sharper element in today’s fight for workers’ rights. The threat of national right-to-work laws has made this need more urgent than ever.
The employer class should not have any involvement in the decision by workers to join or form their own organization. This includes employers expressing preferences about how their workers should organize. To claim this as a matter of free speech is a canard because of the profound and fundamental power imbalance between workers and employers. Because of this imbalance, employers’ expressions of preference inherently contain an element of coercion. The employer has the advantage of being able to carry out policies that penalize workers for their choices. The employer can close down, reorganize, and terminate workers—or, should exclusive representation be eliminated, establish sanctioned “employee associations” that are actually instruments of the company.
Employers’ ability to involve themselves in their workers’ right to choose how they organize undermines the possibility of real democracy. This is for the same reason that in elections, it is so important that there be no intimidations at the polls to guarantee that voters choose freely and fairly. In a worker’s choice for representation, however, while said rules should apply, in reality they do not. Employers are able to carry out various forms of intimidation with either no or limited ramifications. The penalties for most violations of the National Labor Relations Act are so minimal that it is actually in the interests of employers to break the law to chill efforts at worker organization.
For these reasons, altering labor laws without denying employers the right to involve themselves in a worker’s choice of whether, when, and how to be represented will not address the fundamental power imbalance in the workplace and might even worsen it.
At bottom is the authoritarian nature of the U.S. workplace. This is a point that Barbara Ehrenreich has emphasized for years. The average worker enters the workplace and, in the absence of a union or collective bargaining, finds herself in a dictatorial environment, losing her basic rights, including the rights to freedom of association, freedom of speech, and freedom of the press. She exists in an environment where she is presumed guilty rather than innocent in the face of any infractions because, in the absence of collective bargaining or a legally enforceable personalized contract, most workplaces have no just cause provisions.
Why do unions almost never explicitly address the authoritarian nature of the workplace?
In the early 2000s Ehrenreich began asking why this fact is not central to the mission and message of organized labor. Why do unions almost never explicitly address the authoritarian nature of the workplace? In other words, why is organized labor not a rights-based movement? Underlying this crisis is a failure to engage the notion of union transformation, and specifically, the need for what Fernando Gapasin and I have termed “social justice unionism.”
This shortcoming is not only the result of the Taft-Hartley–amended NLRA, which greatly restricted the powers of unions, but also that organized labor has long accepted the framework established by American Federation of Labor’s first president, Samuel Gompers, a framework even further contracted by the Cold War. Gompers envisioned trade unions as instruments for securing wages, better hours, and safer working conditions, not as instruments for overall social and economic justice. The Cold War repressed and altered the trade union movement, narrowing its vision. Major unions, including the United Auto Workers, came to accept the notion that collective bargaining should be the principal means for addressing the broad concerns of workers, such as health care. Rather than standing firm for societal entitlements and the expansion of democracy, organized labor slowly but noticeably turned its attention inward in order to focus upon those who were already represented by unions. During this time efforts by left-led unions to expand the parameters of trade unionism were crushed and treated as antithetical to the goals of allegedly legitimate trade unionism.
During the Cold War, organized labor turned away from broad democratic goals toward narrowly representing those already in unions.
As a result organized labor retreated from a social vision. In part because of this, it was increasingly unable to address changes in the workforce and methods of work, as well as the evolution of global capitalism. Instead of leading a broad social movement for progress, trade unionism turned away and focused on industrial jurisprudence. Organized labor, in most cases and with certain notable exceptions, rather than being perceived as an instrument for broader justice—including but not limited to racial and gender justice—was viewed as either irrelevant or an obstacle.
Even should labor laws change for the better, if organized labor does not first shift its paradigm, it will fail to seize upon the new possibilities. An warning sign of this can be found in the attraction that some labor leaders have for Donald Trump because of their belief that he will bring about new (or old) employment. Despite the fact that Trump ran a racist, sexist, xenophobic campaign, some trade union leaders feel this is either irrelevant or that it can be ignored in the name of increasing employment. Such a vision sets unions against the interests of huge sections of the working class. It also puts organized labor at odds with other social movements, including the environmental movement. This means condemning organized labor to being not a social movement but, to borrow from Ronald Reagan, a special interest or a minority constituency.
Pope, Bruno, and Kellman correctly challenge the restrictions inherent in the Taft-Hartley–amended National Labor Relations Act. They are on point in demonstrating that the existing labor laws place significant, if not undemocratic, restrictions on the possibility for workers to exercise their right to freedom of association and collective bargaining. That said, in the absence of a shift in the vision of trade unionism, statutory changes are insufficient to address the impact of neoliberal globalization on the working class.