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Nothing better illustrates the crippling impact of law on today’s labor movement than Janice Fine’s account of the planning sessions for the recent attempt at a May Day general strike. Fine observes the sharp distinction between the unions and the alt-labor organizations. The unions, with more resources, were “in a much stronger position to weather a strike institutionally,” but they demurred. They felt that they had to respect the no-strike clauses in their collective bargaining agreements. Alt-labor organizations, on the other hand, had avoided the NLRA collective bargaining “straightjacket” precisely so they could engage in militant tactics, including the strike. They forged ahead with May 1 preparations. Despite some material assistance from progressive unions, the strike fizzled in all but a few localities.
This is our labor movement today. Unions with resources and members, blocked by law from effective action, and alt-labor organizations full of fire but trapped in the unbearable lightness of outside funding; the law excludes them from the institutionalized collective bargaining relationships that could provide a stable membership base.
This is our labor movement today. Unions with resources and members blocked from effective action by law, and alt-labor organizations full of fire trapped by limited funding.
Nonetheless, in the thoughtful responses to our essay, contributors from both sides of the divide downplay this problem. On the alt-labor side, Andrea Dehlendorf and Dan Schlademan of OUR Walmart rightly celebrate their escape from the “constrictions of the NLRA.” They also make light of their exclusion from collective bargaining which, they urge, is not the only way to improve working conditions. We applaud their creative tactics but wonder why, given that they seem to have no plan for establishing a self-funding membership base in the absence of collective bargaining, they decline to engage our long-term strategy for undermining and replacing the NLRA.
On the union side, Bob Master of the Communications Workers of America (CWA) evinces no urgency about legal constraints. His union stands as a demonstration that it is possible to pursue a genuinely progressive agenda despite the law. With its core of skilled, difficult-to-replace workers, the CWA remains capable of striking. We have tremendous respect for Master’s work both in the union and in the Working Families Party, but he dodges our proposal by distorting it into a straw man. We did not advocate “mass ‘political strikes’ and civil disobedience as realistic short-term tactical options for labor’s revitalization.” Like Master, we hold that the development of working-class militancy happens over time. We believe that rights consciousness can be central to that process, especially when workers confront oppressive laws. For the overwhelming majority of American workers, effective concerted action is blocked by law. Accordingly, we proposed that the labor movement move decisively to support workers who do exercise the rights to organize, strike, and act in solidarity in defiance of oppressive laws, and that labor’s legislative program be shaped to foster the exercise of those rights.
Several respondents challenge our emphasis on the right to strike. They argue that the strike has withered to such an extent that it no longer makes sense to prioritize its revival. It is true, as Cynthia Estlund points out, that a workers’ victory in a strike in the United States today is exceedingly difficult.
Why not give up and accept the decline of the strike as a fact of life? Because as long as there is any chance of reviving it—and there is—the right to strike is too important to be conceded. Staughton Lynd puts it simply: “The right to strike is the foundation of all other workplace rights.” In Reviving the Strike (2011), Joe Burns explains that strikes foster working-class power in ways that alternative tactics such as consumer boycotts or lobbying cannot. Victory hinges foremost on generating and sustaining worker solidarity across lines of race, gender, nationality, and immigration status—and not on the beneficence of middle-class allies or politicians. Master’s response echoes this conviction. “The experience of a long strike,” he writes, “forges an enduring sense of workers’ collective power and élan, and lifts up battle-tested leaders.” As a result, “unions shaped by a culture and history of striking are easily distinguished from those that are not.” We (especially Bruno and Kellman) can also attest from experience that work stoppages provide a unique opportunity for workers to gather and discuss big-picture issues ranging from politics to international laboring-class solidarity.
Our critique of exclusive representation provoked an especially lively and wide-ranging set of reactions. Estlund strongly agrees that it has debilitated unions, adding some compelling reasons that had escaped our notice—for example, that it channeled the struggle for unionism into local bargaining units “where employer power over employees was greatest.” On the other hand, Master is skeptical that, “absent a substantial layer of politicized rank-and-file members and leaders,” getting rid of exclusive representation will make unions more militant or socially conscious. We are not so sure. Imagine if, during last year’s primary campaign, members of Clinton-endorsing unions had had the option of joining Master’s CWA, which backed Sanders. True, more unions might have endorsed Trump, but unions would have become sites of politicization instead of fiefdoms of silence for union officials seeking access to politicians. We admire CWA’s ability to implement a progressive strategy despite exclusive representation, but we wonder why Master is not more interested in the possibility that pressures generated by that system might explain why no other major international union is charting a similarly consistent progressive course.
Stephen Lerner suggests that exclusive representation has contributed less to union decline than the unholy combination of free-trade globalization, neoliberalism, financialization, privatization, and outsourcing. He cites the general decline of unionism throughout the industrialized world, including in countries with sectoral bargaining and multiple unions. Point taken. However, Lerner does not attempt to explain why the decline started much earlier in the United States, or why it has proceeded much further, almost to the point of extinction. Elsewhere Lerner has suggested an answer, namely that U.S. unions have been too cozy with corporations and establishment politicians to challenge corporate power. Exclusive representation not only explains why, but it also presents a far more vulnerable target than broad global trends such as neoliberalism or financialization.
The labor movement should support workers who exercise the right to organize, strike, and act in solidarity in deiance of oppressive laws.
Bill Fletcher persuasively warns that if exclusive representation is to be repealed, employers must not be permitted “any involvement in the decision by workers to join or form their own organization.” Sophia Lee spins out the potential connections between abolishing exclusive representation and embracing the right to work. Her incisive contribution contains much to think about, but we do not believe that our proposal entails acceptance of the right to work. Although we would bar any particular union from using government or employer power to exclude other unions, we would not require that workers enjoy the “right to work” in the sense of declining to pay a representation fee or its equivalent to some organization.
Other respondents draw our attention to issues that we neglected or that fell beyond the scope of our essay. Alicia Garza criticizes us for failing to confront the ongoing problem of union racism. She is right that union racism remains a serious obstacle to labor movement revival, and—although our article does not propose a solution—it does bear on the problem. When the NLRA was under consideration, the NAACP strongly opposed exclusive representation on the ground that it would place black workers at the mercy of white union leaders. This objection proved prescient, as exclusive representation has indeed weakened black workers’ organizations and empowered white union leaders to block collective action by workers of color. In a system of multiple unions, workers of color could form a union that prioritizes racial justice.
Isabelle Ferreras and Alex Gourevitch join us in urging a focus on workers’ rights, but go far beyond labor movement revival to offer important insights on the implications for corporate governance and the transformation of capitalism. Ferreras traces the denial of workers’ rights to the exclusion of workers from corporate governance, and offers a promising proposal for bicameral industrial government, while Gourevitch persuasively argues that an effective right to strike for semi- and unskilled workers would necessarily entail tactics, such as mass picketing or sit-down strikes, that are incompatible with the dominant liberal ideology of capitalism. Tom Kochan recommends that unions put more resources into servicing individual workers and developing labor-management partnerships, a proposal that we believe is ill-timed given today’s merciless corporate onslaught against workers and unions.
Finally, we would like to highlight Fletcher’s critical insight: “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.” Rightslessness fosters fear, paralysis, and submissiveness. Fletcher has long pushed organized labor to break with Gompers-era business unionism and to embrace what he and Fernando Gapasin call “social justice unionism,” the transformation of the labor movement into a rights movement. As we read Fletcher, this transformation begins in the workplace, with the rejection of bread-and-butter unionism. Drawing on the work of Barbara Ehrenreich, Fletcher urges that the struggle against workplace authoritarianism and for rights should be “central to the mission and message of organized labor.” We fully agree.
James Gray Pope Professor of Law and Sidney Reitman Scholar at Rutgers University. Before joining Rutgers in 1986, he worked in a shipyard and represented labor unions at the Boston law firm of Segal, Roitman & Coleman.
Ed Bruno is the former director of the United Electrical Radio and Machine Workers of America, and past southern director for the National Nurses Union.
Peter Kellman is past president of the Southern Maine Labor Council and is currently working with the Movement Building/Education Committee of the Maine AFL-CIO. His books on labor history include Building Unions: Past, Present and Future, Pain on Their Faces, and Divided We Fall: The Story of the Paperworkers’ Union and the Future of Labor.
Unions are being strangled by laws that block workers from organizing, striking, and acting in solidarity. Becoming a rights-based movement is the only way to save labor.
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