“I write this book for people who will never buy it,” says the labor lawyer Thomas Geoghegan in his most recent essay on the American labor movement. “It’s for people who know little or nothing about—or care little or nothing for—labor unions.”
Interesting marketing strategy, that! The author has written a missive to a generation of liberal and left activists who look right past labor and count on increased immigration and new millennial voting patterns to win elections and propel social change. Geoghegan finds this posture myopic and maddening, believing firmly that a revived labor movement is a must—not just for the Democratic Party but for American democracy itself.
In Which Side Are You On? Trying to Be for Labor When It’s Flat on Its Back (1991), we met this young Harvard Law student as he inadvertently stumbled into the trade union world and, well, fell in love. He came to admire local union officers, organizers and shop stewards who defended their brothers and sisters from both the serious exploitation by Fortune 500 companies and the petty injustices of the knuckleheaded foreman. Geoghegan’s oeuvre, from Which Side to Only One Thing Can Save Us, reads like a long letter to his Ivy League friends, justifying the ways of labor to people who have never been written up for taking an unauthorized bathroom break.
It’s true that progressive politicians think less and less about organized labor, perhaps because there’s less and less organized labor to think about. Sixty years ago around one-third of private sector workers belonged to a union; today fewer than 7 percent do. Energetic and creative labor activists have cast about in many directions for avenues to rebuild the movement, and readers of Only One Thing Can Save Us will find a grand tour of the big ideas circulating at labor gatherings today.
Many of these ideas involve “minority” or “members only” unionism, a sharp break with customary union organizing. Under the conventions of the National Labor Relations Act (a k a the Wagner Act), American workers who want a union typically request an election in their workplace, with all eligible employees invited to vote. If the majority votes yes, the union represents everyone—even those who voted against it. If the majority votes no, no one gets a union—even those who want one.
In a society as individualistic as ours, I think this system of majority rule has much to recommend it. But as Geoghegan points out, many see it as unfair. Those who voted against the union resent its claims to represent them, and unless they live in a so-called “right to work” state that permits them to opt out individually, they resent paying union dues even more. On the other hand, millions of workers tell pollsters and organizers that they want to join a union but are denied the right in practice because they are a minority in their particular workplace.
Members-only unions bypass elections to offer an escape from this box. A group of workers, large or small, forms a union and demands to negotiate with the firm but only on behalf of the union’s members. Is this a practical way forward?
The strict language of the N.L.R.A. protects any group of workers acting in concert to improve the conditions of their work, not just a majority union. As Geoghegan puts it, “when two or three are gathered together, they have a lot of rights under the Wagner Act.” (Only One Thing is saturated with Geoghegan’s Catholic sensibility—not through explicit reference, but through prose that repeatedly paraphrases Scripture passages we know by heart from the lectionary.) Still, bitter experience has taught union organizers that minority unions face extraordinary obstacles. They have difficulty forcing employers to the bargaining table, and their activists are vulnerable to retaliation. Employers can usually smother an organizing effort by firing one or two ringleaders, knowing that a Labor Board investigation can take months or years, and the penalties at its disposal are trivial. Minority unions will need shelter to survive in this hostile climate, and Geoghegan suggests two places they might seek cover.
One is the Civil Rights Act. In recent years, the Century Foundation fellow Richard Kahlenberg and the labor lawyer Moshe Marvit have campaigned to add union status to the Civil Rights Act alongside race, gender and creed. With this amendment, Americans might begin to see the right to organize in a new light, as an expansion of the fight for civil rights and equality. (Martin Luther King Jr., after all, was a strong union supporter and was killed while supporting striking Memphis sanitation workers.) And as a practical matter, workers could avail themselves of the law’s private right of action. A worker fired for union activism would not have to await a cumbersome Labor Board investigation but could file suit on his own behalf seeking triple damages.
The other possible refuge is the one employed by “members only” unions in continental Europe, where the law mandates worker representation while leaving union membership itself optional. Geoghegan especially admires the German Works Council system, under which large enterprises are required to accommodate worker representation from the shopfloor up to the corporate board. Trade union membership is voluntary, and the unions are almost akin to political parties that seek election to these seats. (In some nations, including France and Italy, this character is explicit—rival unions with different political affiliations and platforms campaign for these positions).
Geoghegan pins his hopes for the civil rights approach on a grand political bargain with union opponents, one that would swap a federal “right to work” law for the desired civil rights status. That sounds like a dangerous gamble for existing labor unions that still protect living wages, health care and occupational safety for some 16 million represented workers—and it is hard to envision that right-to-work advocates, who believe they are winning their fight, would take the bait in any event.
A U.S. law establishing works councils seems even more farfetched, but Geoghegan hopes that globalization might do U.S. workers a favor for a change. A large group of Volkswagen assembly workers in a Tennessee plant have signed up with the United Auto Workers, and the German firm (with a good, hard shove from its domestic union, IG Metall) is exploring a works council-inspired structure to accommodate the minority union. Germany’s dynamic manufacturing sector and resilience in the face of the euro crisis have captured the attention of the world. Might U.S. firms be inspired by this experiment in the volunteer state?
This article also appeared in print, under the headline “Redefining Union,” in the May 11, 2015, issue.