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Andy Zipser, The Guild Reporter, The Newspaper Guild/Communication Workers of America, February 2005

JUST AS LABOR LOOKS FOR RENEWED MEANING, TWO BOOKS REMIND US WHAT IT'S ALL ABOUT

By Andy Zipser, Editor, The Guild Reporter

The NUPsters are dead. Long live the NUPsters!—or, more precisely, the issues they raised and the questions they posed. And now, by sheer chance, arrive two books to provide the requisite life support.

The NUPsters, as they’re colloquially known, are five labor unions that created the New Unity Partnership as their way of goading the AFL-CIO into paying more attention to organizing. But the NUPster program is the very antithesis of an organizing model: rather than pushing for more grassroots activism, it advocates greater union consolidation, stronger AFL-CIO control over its affiliates and an agenda-setting style that owes more to Bismarck than to Jefferson.

But while the NUPster medicine arguably may be worse than the disease, its underlying diagnosis is undeniable: organized labor is dying. Unions represent a smaller slice of the private workforce than at any point in the past century, and paradoxically have been in steady decline ever since the AFL and CIO merged. Nor is this simply a matter of unions having outlived their usefulness: wealth and income disparities have grown as organized labor has weakened, to an extent now rivaling the excesses of the Gilded Age and the Roaring Twenties. In the perpetual struggle between capital and labor, capital has captured all the high cards, from political hegemony to nuanced control of the cultural zeitgeist.

Well, almost all. The two exceptions are encompassed within the covers of these two books.

The first, written by labor law scholar Charles Morris, begins with the observation that law, “more than any other factor,” controls American labor relations. And U.S. law, as Morris methodically establishes in The Blue Eagle at Work, has consistently affirmed that American workers have the right to bargain collectively with their employers through representatives of their own choosing. Period.

Not just if they win an election.

Not just if they hand in authorization cards representing a majority of workers.

All major Depression-era labor legislation affirmed this right, Morris points out, including the Norris-LaGuardia Act of 1932, the National Industrial Recovery Act of 1933 and the National Labor Relations Act of 1935. Indeed, the legal right to workplace representation extends back at least to 1918, when the National War Labor Board affirmed “the right of workers to organize in trade unions and to bargain collectively through chosen representatives.” And it remains national policy to this day, unrepealed and unchanged.

What has changed since 1935 is an emphasis—by unions and employers alike—on exclusive bargaining rights within a workplace: in other words, on determining whether a specific union may claim to represent all eligible employees at a specific worksite. That’s where all the contemporary wrangling about card-check and NLRB-supervised elections arises—but back in the day, says Morris, at least as many workers were represented by minority unions as by exclusive ones. Indeed, as he further notes, “when a union was not strong enough to obtain a closed shop or even full recognition, it often settled for a members-only collective agreement, for this was considered a logical step in the organizational process that would eventually lead to total employee recognition.”

What the NLRA of 1935 did was to create a mechanism to determine if “total employee recognition” had been achieved, thereby extending union representation to workers who might not have wanted a union in the first place. Moreover, elections were a means of determining which union would represent all employees. They were never viewed as resolving the question of whether employees who wanted union representation would get it; that was simply a given, explicitly affirmed in Section 7 of the NLRA.

But over time, the concept of collective bargaining pluralism was forgotten. Unions discovered that they could grow much faster by winning majority recognition, and with a National Labor Relations Board that sought to facilitate rather than hinder union recognition, unions racked up an 85.5% win rate in the board’s first decade of existence. Member-only minority unions slipped out of existence (although not in Europe, where they are still common), even at worksites with no union representation, despite continued affirmations of collective bargaining as U.S. policy. For example, even the anti-labor Taft-Hartley Act was recommended by Sen. Robert A. Taft with the observation that the conference committee “feels, almost unanimously, that the solution of our labor problems must rest on a free economy and on free collective bargaining.”

It therefore follows, Morris concludes, that employees in a workplace where there is no exclusive-majority representative never lost their right to minority-union representation; that a minority union is automatically “entitled to recognition and bargaining on behalf of its employee members”; and—here’s the kicker—that “an employer who refuses such recognition or bargaining is committing an unfair labor practice.” Moreover, an employer who refuses a minority union’s request for recognition and bargaining on behalf of its “members only” could be legally picketed, provided such picketing disclaimed any organizational purpose.

Best of all, by asserting minority union representation, employees can claim—in Morris’ view—a level of legal protection not available to union activists in typical organizing campaigns. Besides filing a ULP over the firing of a bona fide member, for example, minority unions “should also request that an employer engage in good-faith bargaining regarding the discharge, for discharges are mandatory subjects of collective bargaining.” An employer’s refusal to do so only opens the door to additional charges, of course.

Although some unions already use an approach described as “the nonmajority union strategy”—CWA has been doing this at General Electric through its Work At GE program, and WashTech may be viewed as another example—the strategy is more diffuse than asserting minority union status. Presented in the form of self-help organizations that solve problems by using workers’ rights to collective action, such as political lobbying, the strategy nevertheless has the long-term goal of creating a workplace environment that enhances the odds of winning a representation election. Neither WashTech nor WAGE has demanded collective bargaining on behalf of its members only—nor has any other union in recent memory.

Morris argues, however, that even without immediate prospects of winning a contract, minority unions stand to gain a great deal for their members—and, as in the 1930s and 1940s, in the process make unions more attractive to non-members. One notable example is the application of the Weingarten rule, which allows a union member facing possible disciplinary action to be accompanied by a steward; although this right was extended to non-union members several years ago, the NLRB reversed itself late last year.

More to the point, the existence of even a minority union restricts an employer’s freedom to unilaterally change working conditions. Common mandatory subjects of bargaining include layoffs, recalls, work rules and discipline, sick leave, safety and health, wage rates, merit increases, incentive pay plans, vacations and vacation pay, health insurance, pension plans, hours of work. . . .

Even a union too small to apply economic leverage against an employer has tools non-unionized workers don’t have, starting with its right to request relevant information. Equally as critical, Morris adds, is its right to have an outside union representative inside the workplace when grievances are being investigated or presented, conveying “a powerful pro-union message to wavering nonunion employees.”

While Morris, as befits his subject matter and training, views the law as the controlling element in labor relations, the troublemakers at Labor Notes have a different take: workplace power is developed through worker solidarity.

The law may enhance or hinder the exercise of that power. So may politicians, judges, corporate cartels, lobbyists, employer associations, union-busting consultants and a whole panoply of other groups and forces. But as A Troublemaker’s Handbook 2 argues, the only way workers develop control over their lives is by organizing themselves so they no longer have to stand alone against the economic and political forces arrayed against them.

“Organizing is an attitude,” explains Ellen David Friedman in an early chapter. “It’s the attitude that you and your co-workers together can do something to make things better. It’s the attitude that action is better than complaining. . . . If you have the attitude, you feel it necessary to respond to unfairness. You are committed to building power with your co-workers, not just talking about it. You believe in collective action, even if you’re just starting to understand it.”

Collective action, it goes without saying, increasingly is an exotic concept in a culture that emphasizes the virtues of solitary independence. Indeed, although American history is rooted in collective effort and mutual aid, the post-Eisenhower years—precisely the period when organized labor began its decline—have seen a growing fragmentation of society and a concomitant distaste for concerted activity. To seek the support of others is seen as weak, vaguely threatening—even un-American.

The first Troublemaker’s Handbook, published in 1991, tackled this debilitating mindset head-on by compiling a litany of examples to the contrary. Rather than issuing a laundry list of suggestions, the original handbook and its all-new successor are built around dozens of organizing campaigns. Some worked, some failed and many simply ended up—like most human endeavors— somewhere in the middle, with both victories and defeats. But all, regardless of outcome, provide object lessons for others in similar situations, and all underscore the reward of greater human dignity that even a losing campaign bestows on its supporters.

Whereas the NUPster prescription for organizing is built on a top-down command model, with union generals marshaling their rank-and-file troops in high-profile campaigns, the Troublemaker’s credo is that all union power begins on the shop floor or its knowledge-economy equivalent. That approach not only restores the “movement” part of “the labor movement,” but it ultimately proves more resilient and durable than the take-it-or-leave-it passivity engendered by business unionism.

It’s worth noting that the Troublemaker’s Handbook practices what it preaches. Edited by Jane Slaughter, a Detroit-based writer who has worked with Labor Notes since 1979, it nevertheless showcases the writing and experiences of dozens of labor activists, including several CWA members. (Full disclosure: I contributed the chapter on “Dealing with the Media” and proofread a chunk of the manuscript.) And as with most group collaborations, the result is richer and more diverse than any one individual could provide.

A survey of chapters and sub-chapters gives some indication of the terrain covered, from shop floor tactics, contract campaigns, strikes, corporate campaigns and inside strategies to community alliances, workers centers, reform caucuses and bringing immigrants into the movement. A chapter devoted to fighting discrimination covers such topics as contraceptive equity, defeating divide-and-conquer racism, building coalitions and getting a local to take discrimination seriously. One on health and safety describes mapping hazards, fighting “blame the worker” programs and enforcing contract language with on-the-job-actions.

There’s scarcely a lawyer mentioned (although several contributed to the text) and the National Labor Relations Act has only five index references—compared with 19 for “organizing new members,” 20 for “community support” or 21 for “education, union.”

The kind of big-picture debate that the New Unity Partnership triggered is essential, and in fact overdue. But as the AFL-CIO gets deluged by grand plans and blueprints for success, it becomes ever more important to remember what all the hubbub is about—and it’s not organizational flow charts or jurisdictional distinctions. It’s about the person working at the next desk, the next machine, the next assembly line station.

Insofar as The Blue Eagle at Work is a laser, precisely targeting a forgotten aspect of labor law that workplace activists can use to their advantage, The Troublemaker’s Handbook is a shotgun: up close and personal, illustrating the power inherent in a nice, tight grouping. Taken together, they counterbalance NUPster dogma by reminding us of the strength we have individually—and of how that strength can be leveraged through collective action.

The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace, by Charles J. Morris. Cornell University Press, 2005. 310 pp $35 (cloth) A Troublemaker’s Handbook 2: How to Fight Back Where You Work—and Win! edited by Jane Slaughter. Labor Notes, Detroit, 2005. 372 pp $24 (paper)

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