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2004 The American Labor Movement's Struggle to Remain Relevant Chris Cobleigh University of Rhode Island

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THE AMERICAN LABOR MOVEMENT’S STRUGGLE TO REMAIN RELEVANT Chris Cobleigh University of Rhode Island

“Organized labor. Say those words and your bargaining. Consequently, some workers believe heart sinks.” So begins Thomas Geoghegan’s they stand a better chance of achieving gains in the account of his experience as a labor lawyer in an workplace by means of individual negotiation with era when organized labor is in decline. their employers rather than collective bargaining. Geoghegan portrays labor’s struggle to regain a It is argued that this is because workers have lost prominent place in American society as a noble confidence in the ability of unions to secure cause, one worth fighting for, but sees the window workplace gains and/ or because employers have of opportunity closing. Indeed, he predicts, “One made efforts to accommodate workers’ needs in an day I will wake up and the unions will be gone, effort to avoid unionization. (Yates 1998: 135- completely gone…I look in my open grave and see 137). a future of workmen’s comp. I see old skulls, old The internal causes of labor’s decline are said bones of workers” (Geoghegan 1992: 1). The to relate primarily to its willingness to enter into a state of organized labor in America clearly gives cooperative relationship with capital in the years Geoghegan reason to worry. When his book was following World War II. In an effort to establish published in 1992, the percentage of eligible labor peace during that period, corporate leaders workers represented by unions had dropped agreed to recognize the legitimacy of labor and precipitously from a peak of 32.5 percent in 1953 bargain in good faith over key issues such as to approximately 16 percent. That figure was wages and hours. For its part, labor agreed not to down from 20-25 percent in 1982, and as interfere with management prerogatives, thus Geoghegan surveyed the future, he lamented, giving it relative autonomy in day-to-day business “Maybe it will drop to 12. Once it drops to 10, it operations, and to refrain from striking during the might as well keep dropping to zero” (Geoghegan life of the collective bargaining agreement. This 1992: 1). In the intervening 12 years, the overall so called “corporate agenda” enabled unions to percentage of unionized employees has dropped to achieve substantial gains for their members in 13.5 percent, and in the private sector, the terms of core issues such as wages, hours, and percentage has shrunk to 9 percent. (Wheeler fringe benefits, but it forced them to abandon the 2002: xiii). wider mission which had been the root of their What has caused such a monumental decline? success in the first place. Instead of continuing to There is widespread agreement that the causes push for widespread social reforms that would have been both external and internal. Externally, strengthen the rights of all workers, unions there has been a fundamental shift in the American focused on servicing their own members’ interests. economy from manufacturing to service-based This led them to abandon their efforts to organize jobs. Since labor has heretofore achieved its most new members and created union bureaucracies significant gains by organizing production dedicated to maintaining the status quo. The workers, it appears to be having difficulty leaders of these bureaucracies became politically transitioning to large-scale, service sector powerful and began to distrust those within the organization. Globalization has made capital more labor movement who sought to disrupt the balance mobile, thus allowing employers to transfer high of power established between labor, management, wage American jobs to countries with lower wage and government. Labor was no longer sure it rates and fewer government regulations. The wanted an active rank and file advocating strikes political environment has increasingly favored and other forms of direct action. Whereas capital, so that labor laws originally designed to economic action had been a key component of protect labor against the excesses of capital have labor’s success during the first half of the been gradually amended to impede the right of twentieth century, such ideas were suddenly seen workers to organize and engage in collective

© Chris Cobleigh, 2004 Cobleigh – Labor Movement Struggle 2

as too radical and potentially harmful to the gains alternative would be complete employer labor had won for its members. dominance. Which of these views is correct? For nearly a quarter century following World Have unions in America become obsolete? Have War II, the compromise between labor and they lost their ability to represent workers’ management produced positive economic results. interests in a meaningful way in the current The higher wages gained by workers produced a political and economic environment? What, if burgeoning middle class, and the resulting anything, can they do to return workers’ rights to increase in economic consumption lead to a the forefront of the American political and social corresponding increase in production. When the agenda? These questions are the focus of this post-war economic boom ended (as a result of paper. overproduction and increasing global In determining whether organized labor is competition), capital began to look for a way to capable of adequately representing workers’ offset falling profits. It attempted to cut the wages interests, it will first be useful to try to define and benefits it had freely given workers as part of those interests, both from labor’s perspective and the so called “labor-management accord” and from the perspective of workers themselves. In a initiated campaigns to impede new unionization 1994 report entitled, “The New American efforts and destroy existing unions. Having Workplace: A Labor Perspective”, the Executive developed cumbersome bureaucracies fully Council of the AFL-CIO presented its view of committed to “service unionism”, labor was ill- workers’ priorities and the role of organized labor equipped to respond to capital’s retreat from the in facilitating those priorities: accord. Its ineffectiveness in opposing capital’s “The moment has come for unions to insist anti-union campaigns eventually lead workers to upon the right of workers to anticipate in shaping believe they might be better off negotiating with the work system under which they labor and to their employers individually. Thus, it is suggested participate in the decisions that affect their that the shift in labor’s internal organization from working lives. Unions have an equally important being an engine for social change to being an anti- role to play in assuring that workplace change democratic bureaucracy has been a key factor in plants strong roots. Unions provide a check on its decline (Yates: p.135-143). managers and owners who waver in their In light of these developments, there has been commitment to the new work order or who seek to widespread debate concerning the future of revert to old ways” (AFL-CIO 1994: 14). organized labor in America. Like Geoghegan, Clearly, then, the AFL-CIO argues that many are resigned to labor’s extinction. Labor workers want a greater voice in determining the scholars have begun to ascribe to the theory long terms and conditions of their employment. It espoused by the business community that the rise further asserts that unions have a vital role to play of organized labor was a necessary response to the in checking or limiting capital’s ability to excesses of the industrial age, that it was highly maximize profit at the expense of workers. In a successful in establishing basic workplace rights recent interview, AFL-CIO president John and raising the standard of living for millions of Sweeney provided a more detailed explanation of working class Americans, but that it has become labor’s goals for the future, identifying several key obsolete in an era where individualism and a areas of concern and laying out strategies to deal global economy rule the day. Others assert that with them. Concerning the effect of globalization labor has historically experienced periods of on American workers, Sweeney explained: decline but has always been able to revive itself “The essence of our fight is to promote the when economic conditions force workers to Declaration of Fundamental Principles on consider the merits of collective action. The optimists argue that as long as the employer- Rights at Work, the International Labor employee relationship exists, employees will be Organization standards that include the rights compelled to keep their employers in check to collective bargaining, not to be through some form of collective action; they will discriminated against in employment, to reject never abandon unionism entirely because the child labor, and to refuse forced labor. Our Schmidt Labor Research Center Seminar Research Series 3 aim is not to impose our standards on other phenomena of job relocation and outsourcing. countries, but to make sure that human beings Given labor’s seemingly limited objectives, it may are treated as having rights, and have the be reasonable to assume that at least some of opportunity to join unions if they desire to” Sweeney’s goals are attainable in the near future. (Wheeler 2002: 218). For example, it is not hard to imagine imminent success in the political arena. The American Commenting on the AFL’s political goals, economy has experienced a recession in the last Sweeney noted that labor has helped Democrats three years accompanied by significant job loss, gains seats in Congress in every election from and although recent economic indicators suggest 1996 to 2000 and predicted that increasing that a recovery is in the offing, job creation political activism on the part of union members continues to lag behind. The other key issue in the would bolster labor’s efforts to achieve electoral current election season is the ongoing war on victories in the future (Wheeler 2002: 217). At an terror and the occupation of Iraq. Given the AFL-CIO labor lawyers conference in April of American public’s mixed feelings about these 2004, Sweeney once again stressed the need to issues, a political shift is possible. Where mobilize union support for Democratic candidates Republicans have managed to hold onto their and get out the vote on election day. He presented political power base since the landmark election of a ten-point strategy for achieving these goals, 1994, it is conceivable that labor’s electoral efforts including: 1. Recruiting key contacts at local and will pay dividends in November 2004. worksites, 2. Distributing leaflets at all union It is also reasonable to envision a scenario in worksites, 3. Maximizing contact through union which the AFL’s efforts to bring the Declaration publications, 4. Mailing frequent communications of Fundamental Principles on Rights at Work to from local union presidents and other leaders, 5. the attention of employers around the world are Updating local member lists, 6. Increasing voter successful. Many nations throughout the world registration by 10 percent, 7. Conducting a currently recognize and abide by the five massive get-out-the-vote effort, 8. Building rapid principles enunciated in the Declaration, and response networks in the workplace, and 10. because labor’s stated goal is simply to increase Linking politics to organizing. (AFL-CIO 2004: 1- awareness of the Declaration (rather than trying to 5). enforce it), the goal may be reachable. Finally, Sweeney alluded to what has clearly The AFL’s success in meeting its organizing been the centerpiece of his reform agenda since he goals is less certain. In order to effectively assumed the presidency in 1995: the need to move organize 1 million new members annually, labor away from the “service and bargaining model” will have to overcome several longstanding (wherein unions focus primarily on servicing the problems. It will have to wage a successful public needs of their members through the collective relations battle to dispel the notion that American bargaining process) and toward an intensive effort unions are too bureaucratic and corrupt, that they to organize new members. He noted that if the are, in effect, just another corporation whose AFL-CIO could achieve its goal of organizing 1 leaders seek to benefit themselves at the expense million new members annually, it would be able to of their members. Further, it will have to convince “hold its own as a percentage of the workforce.” workers that it can be a more effective vehicle for He then noted that it was currently close to promoting workers rights and achieving gains in organizing about half that number, or 500,000 new the workplace. members annually (Wheeler 2002: 218). Even assuming that labor can achieve these Sweeney’s comments on labor’s objectives are goals, the next question becomes whether they are significant because they reveal what could be consistent with the needs and desires of workers. viewed as a relatively conservative reform agenda. What do American workers want, as defined by Certainly, Sweeney is not advocating a radical the workers themselves? An extensive survey of departure from the way labor does business or a worker preferences published in 1998 reveals that full-scale revolt against corporate America in workers want a system of labor-management response to decades of union-busting, wage and relations somewhat different from the one that benefit cuts, plant closings, and the more recent Cobleigh – Labor Movement Struggle 4

now exists. First, they want a greater ability to have fully embraced the notion of individualism in participate in decisions that affect their lives at the workplace. They assert that the conditions work; they believe that such participation will which contributed to the meteoric rise of unions in make them happier as individuals and make the the 1930s and 40s have vanished, never to return, organization for which they work for more because workers have more individual bargaining productive and profitable. They believe that power than they did half a century ago and worker participation should take several different employers have learned how to deal with their forms. On some issues, such as sexual harassment employees in ways that makes unions unnecessary and general workplace grievances, they prefer (Wheeler 2002: 5). However, the data collected dealing with their employers individually rather by Freeman and Rogers also clearly shows that than as a group of employees. On issues such as workers do not feel they have an adequate voice at wages, benefits, and health and safety in the work, do not have faith in management’s workplace, they show a preference for collective willingness to share decision-making power, and action. Though about one third of workers believe support changing the system by which workplace their employers are unsympathetic to their needs decisions are made. Those statistics support the in the workplace and strongly resist sharing power, view that unions are unlikely to become totally they nevertheless seek a cooperative relationship extinct. Indeed, many labor analysts suggest that with their employers. They believe that “as long as people procure their livelihood by developing an openly hostile labor-management working for wages and salaries, they will relationship is counterproductive for them as recognize, sooner or later, the futility of appealing individuals and for the enterprise as a whole. to their employers as individuals” (Aronowitz They further believe that any kind of workplace 1998: 7). organization will be more successful if it enjoys The data indicates that 90 percent of current management participation and support. While union members are confident in and satisfied with some express a preference for unionization, others their union. The data further indicates that one prefer some form of labor-management committee third of non-union members see the formation of in which workers and managers make joint the union as a viable option and would vote in decisions regarding workplace rules and favor of one (Freeman and Rogers 1999: 69). An procedures. Included in such a committee additional 12 percent of those who would vote structure would be a mechanism for resolving against the union cite management opposition as workplace disputes through independent their reason for doing so. Absent such opposition, arbitration rather than management discretion. they said they would change their position and Furthermore, they believe such a committee vote in favor of the union (Freeman and Rogers system would better allow them to achieve gains 1999: 87). Combining these numbers, Freeman in the workplace than additional government and Rogers estimate that approximately 44 percent regulation. Essentially, then, workers want a of all private sector workers would like to be varied system of participation and representation represented by a union (Freeman and Rogers with a more cooperative and equal relationship to 1999: 89). And as Aronowitz points out, at least a management, but a majority appear to want it portion of those who currently believe they can get without government interference or a union. In what they want from their employers by other words, they believe they can get what they negotiating with them individually are bound to be want from their employers without significant help disappointed when they discover their employer’s from external forces (Freeman and Rogers 1999: intransigence. Add to that the fact that not all 4-8). employers will agree to establish labor- These statistics appear to validate the view management committees featuring joint decision- held by some commentators that organized labor making on key workplace issues, and the has become obsolete. Pointing to the fact that inevitable conclusion is that at least some portion roughly two thirds of all non-union employees of the American workforce will see the need to would choose not to vote for a union, and citing organize a union in an attempt to force the the statistics regarding the desire for less external employer to recognize certain basic worker rights. interference, they argue that American workers If nothing else, the idea that union contracts Schmidt Labor Research Center Seminar Research Series 5 require the employer to show just cause before it to affect significant change in wages, hours and fires someone is sufficient reason for workers to terms of employment, but believed that any favor unionization. Thus, it appears unlikely that attempt to include the growing class of unskilled the basic concept of unionization in accordance and semi-skilled workers would detract from this with the rules set forth in the National Labor goal. Relations Act will vanish entirely from the The demise of the Knights of Labor stemmed American workplace. However, the larger primarily from the fact that their goals were too question is whether labor is capable of achieving broad and unfocused to wage an effective battle its stated goal of helping workers participate in the against capital. They sought to educate their decisions that affect their working lives and workers on economics and politics so they would provide a check on capital when it oversteps its be prepared to lead society, and their ultimate goal bounds. I argue that to meet these objectives, was the formation of worker cooperatives in which labor must achieve greater parity with capital; workers would share ownership of the means of however, that will be impossible to do in the production. The Knights believed that without absence of a dramatic economic collapse similar to worker cooperatives, organized labor would not be the Great Depression. The fundamental principles able to successfully achieve its goals because it of capitalism are too firmly embedded in the would forever be in opposition to the most American consciousness. The American people powerful force in American society: capital will only question the validity of the capitalist (Wheeler 2002: 98). The Knights ultimately failed ideal if it completely collapses. Therefore, absent because they could not make the idea of worker some sort of cataclysmic economic event, labor cooperatives a reality. Attempting to organize and will most likely be relegated to its familiar role of educate unskilled, semi-skilled, and skilled an anti-establishment organization which will have workers was a monumental task. The AFL only a marginal effect on the operation of presented a better alternative for skilled workers capitalist principles. Perhaps the most effective because they had more bargaining power which way to support this theory is to undertake a brief with they could force employers to grant examination of the history of the American labor concessions. And the Knights lack of focus and movement. organization made them an easy target for Beginning in the latter half of the 19th century, employer attacks. Indeed, one of the key factors several influential labor unions competed with contributing to their decline was the media’s each other for the allegiance of the nation’s portrayal of the Knights as the primary cause of working class and, in so doing, defined the limits the Haymarket Riot of 1886, in which several of American unionism. In the 1880s, The Knights Chicago police officers were killed. Though it of Labor rose in response to the infusion of was later discovered that the riot was lead by a unskilled and semi-skilled workers into a newly group of anarchists who had no affiliation with the industrialized workforce. Rapidly expanding Knights, the press targeted them as the markets caused employers to engage in cutthroat perpetrators and succeeded in turning public competition characterized by lower prices and, opinion against them. Ultimately, the Knights’ consequently, lower wages. This downward idea of comprehensive social change was defeated pressure on wages lead unskilled and semi-skilled by forces which favored the proliferation of workers, many of whom were newly arrived capitalism. Conversely, the AFL continued to immigrants, to demand a labor organization which grow during this period because they sought to would address the growing imbalance between work within the capitalist system to achieve gains labor and capital. The Knights of Labor took up for skilled workers. their cause. During the same period, the American The competition between the Knights and the Federation of Labor focused exclusively on AFL provided an early indication of the extent to organizing skilled workers, who had been which labor could affect change in its relations intermittently successful in gaining wage and hour with capital. However, it was the historic political concessions from their employers but were not shift that occurred in the aftermath of the Great organized under a single umbrella. The AFL Depression that truly defined the limits of labor’s sought was to harness the power of skilled workers Cobleigh – Labor Movement Struggle 6

influence. When Franklin Roosevelt was elected was the largest and most profitable corporation in to the presidency in 1932, he promised a America, with 110 manufacturing plants revolutionary economic and political agenda that nationwide, a quarter of a million employees, and would lift American out of the Depression. As half a million stockholders. It was, in short, “the part of this agenda, he openly challenged big perfect exemplar of how and why American business and sought to replace laissez-faire business (was) big” (Lichtenstein 2002: 48). By economics with a system of government regulation physically occupying more than a dozen GM that would put a floor on prices and wages and a plants across the nation over a six-week period, ceiling on hours. Upon signing the National the strikers were successful in halting production Industrial Recovery Act, Roosevelt proclaimed, and inflicting significant financial damage on the “No business which depends for existence on corporate giant. Eventually, GM reached a paying less than living wages to its workers has settlement with the UAW in which it agreed to any right to continue in this country.” recognize the union as the exclusive bargaining (Lichtenstein 2002: 25). In 1935, Congress passed representative of its employees and negotiate on a the National Labor Relations Act, which gave multiplant basis. More significantly, workers workers the right to “form, join or assist labor gained the right to complain to management about organizations, bargain collectively through arbitrary supervision and onerous work rules representatives of their own choosing, and engage without fear of retribution. The phenomenal in concerted activity for (their)…mutual aid or success of the GM strike created sense of protection.” It enforced those rights by requiring optimism and self-confidence among workers employers to bargain collectively with their nationwide, and union membership swelled. From employees and proscribing employer unfair labor 1933 to 1937, American unions recruited 5 million practices (Hardin 1992: 28). The following year, new members, 3 million of which joined in the during his 1936 re-election campaign, Roosevelt several months following the GM strike continued his assault on corporate America: (Lichtenstein 2002: 51). “Organized money are unanimous in their hatred Despite the tremendous momentum of the for me, and I welcome their hatred. The forces of labor movement during this period, its growth was selfishness and of lust for power have met their hampered by internal divisions and the retaliatory match” (Lichtenstein 2002: 46). Such rhetoric actions undertaken by capital. The Congress of emboldened organized labor not just to push for Industrial Organizations had taken up the cause of the usual improvements in wages and hours, but to unskilled and semi-skilled workers in the think in terms of much larger social change in aftermath of the Knights of Labor and aligned which “the responsibilities and expectations of itself closely with the Roosevelt administration. American citizenship-due process, free speech, the The AFL opposed the CIO’s brand of unionism right of assembly and petition-would now find because it believed labor should remain their place in the factory, the mill, and the office” independent from government. It objected to the (Licthenstein 2002: 32). Surveying the newly NLRA’s intrusion into labor-management formed political landscape, CIO president John L. relations because it did not believe government Lewis confidently challenged capital: “Let him should have the right to determine the appropriate who will, be he economic tyrant or sordid size and makeup of a union’s bargaining unit or mercenary, put his strength against this mighty mandate elections to determine the will of workers upsurge of human sentiment now being in that unit (Lichtenstein 2002: 65). As a result, crystallized in the hearts of thirty million workers the AFL initially denounced the NLRA as “left who clamor for the establishment of industrial wing” and actually aligned itself with conservative democracy and for participation in its tangible politicians and businessmen in an effort to revise fruits” (Lichtenstein 2002: 32). the Act. The AFL also bought into the aggressive In 1937, the newly formed United Auto anti-Communist sentiments of these conservative Workers seized upon the momentum created by groups, and together they began to attack the CIO the New Deal and Roosevelt’s re-election to stage for including radical communist elements within a “sit-down” strike at the General Motors its ranks. Corporation in Flint, Michigan. At the time, GM Schmidt Labor Research Center Seminar Research Series 7

Corporate America was understandably involvement is less appealing. Indeed, workers alarmed by the success of the labor movement and who are skeptical about union representation sought to neutralize its gains at every turn. Alfred believe, in varying percentages, that collective Sloan, president of GM, characterized capital’s representation is often inferior to handling view of the labor insurgency, saying, “It took 14 workplace problems on their own, that having a years to rid this country of prohibition. It is going union creates too much tension in the company, to take a good while to rid the country of the New which they don’t like the way unions operate, and Deal, but sooner or later the ax will fall and we’ll that unions are too weak to help workers (Freeman get a change.” The change came in the form of and Rogers 1999: 86). As noted earlier, because Republican majorities in both houses of Congress management is bound to resist the idea of ad hoc in 1946, followed by the passage of the Taft- collective bargaining or labor-management Hartley Act in 1947. By banning secondary committees in which decisions are made jointly by boycotts, establishing the right of workers not to workers and managers, traditional unionism will join unions (which lead to the enactment of right- remain an option for some workers, but its to-work laws and the elimination of closed shop incompatibility with many workers’ ideal and union shop agreements), overturning the workplace organizational structure may make it a Norris-Laguardia Act (which restored the courts’ second alternative rather than a preference. authority to issue injunctions to enjoin certain Turning to the goals themselves, it appears types of union activity), and establishing that labor’s relatively conservative reform agenda procedures through which employers could may be inadequate to address the needs and decertify unions which had previously won an desires of American workers in the current election, Taft-Hartley was a welcome first step in economic environment. Though labor’s list of capital’s drive to re-assert its dominance over initiatives to protect and strengthen worker’s rights labor. The fact that labor ultimately failed to is extensive, it may be useful to consider the three maintain its position of power despite the major goals mentioned by AFL-CIO president overwhelming economic and political advantages John Sweeney in his June 2001 interview. Since it it derived from the Great Depression and the New formed an alliance with the Democratic Party Deal indicates that its chances for revival in the during the Roosevelt Administration, a primary current environment are slim. goal of labor has been to elect Democrats to state In addition to the weight of historical trends, and local legislatures as well as Congress and the there appear to be inconsistencies between the White House. This has been a particularly urgent traditional structure and function of American priority since the onset of labor’s decline in the unions and the workplace organization currently early 1970s because labor has blamed the decline, preferred by many workers. Though labor has in large part, on the glaring deficiencies in correctly identified the primary complaint of most American labor law. As such, labor believes legal workers (lack of the ability to participate in the reform is the key to turning the tide against anti- decisions that affect their working lives), the union employers and reviving the movement. A preference of many workers to be able to negotiate brief overview of the NLRA and the procedures individually on some issues and collectively on through which it governs labor-management others with minimal interference from external relations will be instructive in understanding groups such as government and unions creates an labor’s complaints about the current state of the obvious conflict. Many workers simply do not see law. the need for a union as long as they believe some In 1935, a progressive Congress passed the alternate form of collective action is possible. If National Labor Relations Act to enable workers to workers believe they can come together informally organize and assert their rights against dominant to negotiate with management on certain key employers. A decade later, a more conservative issues, the alternative of formally establishing a legislature sought to neutralize the effects of the union through the NLRB, creating a perpetually NLRA with the passage of the Taft-Hartley Act. adversarial relationship with their employers, and Since then, labor has discovered that the paying dues to support a collective bargaining framework established by these two bills puts process in which they have little or no Cobleigh – Labor Movement Struggle 8

workers at a distinct disadvantage in organizing disposal, both legal and illegal, to hinder the workers and resisting management’s efforts to election process before a single vote is cast. The divide and conquer them. mere fact that the employer can significantly The difficulties begin before an election is disrupt the process before it has begun may ever held. Union organizers will first ask convince some workers that organizing will be employees to sign authorization cards showing more trouble than it’s worth. their support for the union. If less than a majority If the union somehow avoids all these of employees agree to sign, the union must obstacles and is successful in holding and winning petition the National Labor Relations Board for an an election, the employer may then hinder the election to determine whether the union will be collective bargaining process by refusing to certified as the employees’ official representative engage in constructive contract negotiations. An for collective bargaining purposes. If a majority employer’s outright refusal to bargain with the sign cards, the employer has the option of union constitutes an unfair labor practice, but it is accepting the union as the employees’ official free to be as obstinate as possible during representative without a certification election. negotiations to ensure that no agreement is However, it may also decline to accept the cards as reached on subjects that may be essential to the proof of employee support and may ask for an formation of the contract. By engaging in these election. Employers routinely refuse to tactics, particularly while negotiating the first acknowledge union authorization cards, even if contract between the two sides, the employer may 100 percent of the employees sign, because they be successful in destroying the employees’ are able to delay union certification by contesting confidence in the newly elected union’s ability to the legitimacy of employee support for the union operate effectively for its members. If member (AFL-CIO 2004: Employee Free Choice Act). It support begins to erode, the employer may call for may further delay the election by challenging the a decertification election. If, after all this, the appropriateness of the bargaining unit. The longer employer is unsuccessful in breaking the union, it the employer is able to delay the election, the more has the option of punishing or firing union time it has to convince workers that they are better supporters. Again, while such tactics clearly off without the union. In making its case, the contravene the NLRA, employees must wait employer is permitted to disseminate anti-union months or years for the NLRB to resolve their information suggesting that bad things will happen cases. And even if the employer is found to have if the union is elected. It may hold captive committed an unfair labor practice, the remedy audience meetings in which the negative aspects simply entails reinstating the fired employee with of unionism are highlighted while simultaneously back pay. The NLRA provides no mechanism for prohibiting union organizers from entering the punishing offending employers. premises for the purpose of presenting pro-union The multitude of tactics at the employer’s information. It may not legally threaten workers disposal to prevent the union from forming or with dismissal or fire them for supporting a union successfully achieving gains for its members has drive, but the Board imposes no penalty for such convinced labor that American labor laws need to illegal actions. A worker who is threatened or be changed to put unions on equal footing with fired for union activity will eventually be management. It has supported an expedited reinstated, but determining whether the employer NLRB hearing process so that workers who are has acted illegally may take months or years. In punished or discharged as a result of union activity the meantime, the worker is without a job. (Yates are enumerated or reinstated more quickly. 1998: 137). If the employee decides to return to Violating employers would be charged with unfair his job following reinstatement, he may be labor practices in a more timely fashion so they punished by the employer for bringing his are less willing to continuously violate the law. complaints to the Board in the first place and may Labor has also focused on lobbying Congress to eventually be fired again for his union activity, pass legislation imposing substantial financial though the employer’s official explanation will be penalties on employers found to have willfully that he was fired for something else. Essentially, violated the NLRA by punishing workers for then, the employer has a host of options at its Schmidt Labor Research Center Seminar Research Series 9 participating in union activity, hindering the reforms, groundbreaking though they would be, election process, or refusing to bargain in good would reverse the tide of employer dominance in faith. labor-management relations. Why? The history Labor’s most recent legislative effort, of labor law reform since 1947 provides insight on introduced in Congress in November 2003 and this question. sponsored by Senator Edward Kennedy (D-Mass.) Following the passage of the Taft-Hartley and Congressman George Miller (D-Calif.), seeks amendments, labor strongly condemned them as to remedy three key problems. The Employee “Slave labor laws” and worked steadfastly for Free Choice Act would provide for certification of their repeal. When Harry Truman won the a union if the NLRB finds that a majority of presidency in 1948 and the Democrats swept both employees in an appropriate unit has signed houses of Congress, labor concluded that authorizations designating the union as its conditions were ripe for the extinguishment of bargaining representative. It would ensure that if Taft-Hartley. Despite the favorable political an employer and a union are engaged in landscape, labor’s absolute insistence on a bargaining for their first contract and are unable to complete repeal of the amendments rather than the reach agreement within 90 days, either party may more moderate set of reforms proposed by refer the dispute to the Federal Mediation and President Truman proved too much for Conciliation Service for mediation. If the FMCS mainstream members of Congress. As a result, has been unable to bring the parties to agreement Taft-Hartley remained on the books (Hardin 1992: after 30 days of mediation, the dispute would be 46-47). Aside from the Landrum Griffin Act, referred to arbitration and the results of the which addressed corruption in organized labor and arbitration would be binding on the parties for two amended several minor provisions of Taft-Hartley, years. Finally, it would impose stronger penalties the next major attempt to enact labor law reform on employers for violating the NLRA while did not occur until 1978. The Labor Law Reform employees are attempting to organize a union or Bill sought to address several of the most negotiate a first contract. Specifically, it would egregious inequities in the law by speeding up require the NLRB to seek a federal court schedules for conducting union representation injunction against an employer whenever there is elections and stiffening penalties for employers reasonable cause to believe that the employer has who opposed union organizing by illegal means. discharged or discriminated against employees, The law would have required employers to threatened to do so, or engaged in other conduct compensate illegally discharged employees with that significantly interferes with employee rights double back pay and would have barred flagrant during an organizing or first contract drive. offenders from receiving government contracts. Additionally, it would increase the amount an Though the bill had the support of President Carter employer is required to pay when an employee is and Democrats controlled both houses of illegally discharged during an organizing Congress, members of the Senate who opposed the campaign or first contract drive to triple back pay. reforms conducted a five-week filibuster. After Civil penalties of up to $20,000 would also be six unsuccessful attempts at invoking cloture, the imposed on employers found to have willfully or legislation was recommitted to the Senate Human repeatedly violated employees’ rights during an Resources Committee and died (Hardin 1992: 67- organizing drive or first contract drive (AFL-CIO 68). 2004: Employee Free Choice Act). Clearly, then, labor has been unsuccessful in Despite the inequities in the law and labor’s affecting meaningful labor law reform, even when consistent support for proposed legislation such as the political climate appears to lean in its favor. the Employee Free Choice Act, I argue that These failures indicate that even Democrats, long Congress will not likely enact major labor law said to be the political ally of organized labor, reform now or in the foreseeable future. Further, have thus far been unwilling to abandon the even if labor was somehow successful in passing capitalist ideal in favor of a more socially meaningful reforms like those proposed in the progressive labor agenda. Indeed, as previously current legislation, it is questionable whether such alluded to, the Democratically controlled Congress Cobleigh – Labor Movement Struggle 10

of 1948 considered labor’s demands for complete the notion of freedom of association, which has repeal of Taft-Hartley too radical to entertain. been recognized as a fundamental human right by In a 2000 Discussion Paper entitled “Toward a governments and humanitarian organizations New Labor Law,” the Labor Party of America around the world, including the International concluded that labor’s failure to enact labor law Labour Organization, the Organization for reform “will not be reversed with more money, Economic Cooperation and Development, and the better lobbying, or stronger electioneering. The World Trade Organization. In 1998, the ILO fact is that, absent very extraordinary published the Declaration of Fundamental circumstances, business interests hold a veto Principles and Rights at Work, which lists five power over labor rights legislation in this country. core rights as fundamental human rights. They This is because business occupies a ‘privileged are: freedom of association, effective recognition position’ in our political system. Public officials of the right to collective bargaining, the need cooperation from business, and they cannot elimination of all forms of forced compulsory afford to take it for granted. In short, government labor, the effective abolition of child labor, the leaders can usually afford to stiff unions, but they elimination of discrimination in respect of must do what it takes to obtain the cooperation of employment or occupation. Adams suggests that business” (Labor Party 2000: 2). the freedom to associate and the attendant right to The Labor Party’s solution to this problem is collective bargaining have been universally to circumvent the political process by invoking recognized as human rights because of the belief constitutional principles. It argues that rather than that work is a fundamental tenet of human engaging in the futile process of trying to pass existence which should not be subject to reform legislation, labor should rely on well exploitation and control by those who own the established democratic principles that supersede means of production. Consequently, he argues legislation and will never be repealed, namely the that workers have an inalienable right to have a First Amendment rights of free speech and voice in determining the terms and conditions of assembly. It asserts that if these rights were their employment, and such a right should not be properly applied to workplace issues, the subject to choice. Adams makes the analogy to a impediments to organizing, collective bargaining, nation that has chosen a democratic form of and economic action that currently exist under government, asserting that once democracy is national labor legislation would be swept away by established, “no representation as an option should the freedoms guaranteed by the Constitution. not be given legitimacy.” Similarly, he argues that Workers would be able to form an organization the right not to engage in collective bargaining without interference by employers, card checks should not be presented as a viable option. and election procedures would be unnecessary Clearly, an individual can make his own decision because the freedom to associate would not not to participate in a democratic society or not to require them, and employees could freely strike or engage in collective bargaining, but once society picket their employers without fear of retaliation. has extended the right to engage in these activities Further, they could urge other employers’ workers and affirmed the value of such rights, it should not to boycott their employer’s goods until it agreed to then encourage people not to exercise them. settle their dispute fairly (Labor Party 2000: 2-3). Rather, societal institutions should do all in their This view is shared by a number of international power to facilitate the free exercise of conferred labor scholars and used to criticize the American rights, making the process so easy and so common system of labor relations. that it becomes a normal function of society (Adams 2001). In a paper entitled “Choice or Voice?: Rethinking American labor policy in light of the Defenders of the American system counter international human rights consensus”, Dr. Roy that collective bargaining need not be considered a Adams argues that collective bargaining can basic human right because it is not a necessity of rightly be viewed as a basic human right rather human existence; thus, people should have the than a privilege conferred on workers by law. He freedom to choose whether to bargain collectively asserts that collective bargaining is consistent with or individually with their employer. Furthermore, it is argued that freedom of association means Schmidt Labor Research Center Seminar Research Series 11 having the right to choose not to associate. If which have long been proposed by American labor individuals are given the right to engage in advocates, including interim reinstatement of collective bargaining, they should have the discharged workers pending NLRB proceedings, freedom to choose whether they will exercise that increased workplace access for union organizers, right (Adams 2001). tougher penalties for unfair labor practices, Convention 87 of the International Labour procedures for quicker elections and the efficient Organization calls for freedom of association and resolution of election disputes, reversal of the protection of the right to organize. Convention 98 permanent-strike breaker doctrine, and first establishes principles with respect to the right to contract arbitration. There are two basic concerns organize and bargain collectively. The United with such reforms. First, while they would States is one of the few countries in the world that undoubtedly be welcome changes, evidence has refused to ratify either convention, which may suggests that they might have minimal effect on not be surprising given that it is one of the few union participation rates. Several Canadian countries that appears not to be in compliance. provinces have enacted reforms such as card check Clearly, the United States would take issue with certification, quicker election certification votes, this contention, citing the First Amendment to the first contract arbitration, and stiff and rapid Constitution and the National Labor Relations Act sanctions against violators of Canadian labor rules. as affirmative examples of its support for the ideas No Canadian jurisdiction permits permanent strike contained in the conventions. There are two replacements, and several forbid the employer to potential flaws in this line of reasoning. First, if hire strike replacements at all. Despite these one agrees with Adams’ assertions regarding the seemingly far-reaching reforms, 8 in 10 Canadian inalienable right of workers to have a voice in the workers are non-union. The union participation terms and conditions of their employment, the rate in the U.S. is 9 in 10 without such reforms right to bargain collectively should not be a (Adams 2001). choice. Second, even if a worker’s right to choose The second problem with such NLRA is considered a valid proposition, it can be argued adjustments is that they would not change the that the way in which American courts and the American view that workers should be able to National Labor Relations Board have interpreted choose whether to engage in collective bargaining. the NLRA leaves workers with very little real Without addressing the choice issue, collective choice. That is, because the NLRA has been bargaining in the U.S. will continue to fall short of interpreted to favor employers, workers do not see international standards. collective bargaining as a viable choice and are Solutions that would more thoroughly address thus deterred from attempting to form or join the choice issue are reflective of European unions. This inevitably leads them to choose collective bargaining models. Congress could individual bargaining as the most effective way to create employee representative councils comprised achieve optimal gains in the workplace. As more of delegates elected by employees in a particular and more people choose individual bargaining, company for the purpose of co-determining, with those observing trends in union participation management, a wide range of workplace issues. In conclude that people prefer bargaining Germany, for example, representative councils individually rather than collectively and that they work with management to create workplace policy are consciously exercising their freedom to choose on a wide range of important issues, including and associate. Having conferred on its people the training, health and safety, the implementation of right to choose whether to bargain collectively, it employment legislation, and the implementation of is argued that the American system of collective collective bargaining agreements negotiated on a bargaining is legitimate and in compliance with multi-employer basis by trade unions. Companies world standards. may not lay off workers without council consent Assuming that the American system violates (subject to arbitration), and individual discharges international labor standards, there are several may be vetoed by the council (again, subject to reforms that might help close the gap. First, the arbitration) (Adams 2001). United States could implement NLRA reforms Cobleigh – Labor Movement Struggle 12

Other collective bargaining practices rights) are either unachievable absent an commonly found in Europe that could improve extraordinary shift in economic circumstances or, collective bargaining in the U.S. include placing if achievable, are unlikely to reverse capital’s worker representatives on corporate boards, dominance over workers. However, many implementing a system of national multi-employer scholars disagree with this assessment and have bargaining, establishing statutorily wage councils predicted the resurgence of labor if certain (run jointly by management and workers) for the conditions are met. It is essential, therefore, to purpose setting wage policy, and establishing joint address the validity of these counter-arguments. health and safety committees. Finally, a First, it may be argued that the cataclysmic statutorily prescribed policy of instant recognition economic event which I deem necessary for of collective bargaining units would have a change is, in fact, upon us. Indeed, economic significant impact on the issue of choice in the conditions in America today are eerily similar to American system. those which lead to the Great Depression. As in Because the introduction of these kinds of the late 1920s, Americans are working an significant changes in collective bargaining policy increasing number of hours without experiencing a would undoubtedly be resisted at first, the key to corresponding rise in income. The disparity successful implementation is to promote them in a between rich and poor is growing, with the way that makes them an accepted part of the incomes of the wealthiest Americans occupying an collective bargaining system in America, just as increasing percentage of the nation’s overall they are in Europe. To do this, labor would have wealth. And falling incomes among the middle to abandon its allegiance to the American system and lower classes have resulted in diminished of labor relations and return to the socially economic consumption (Wheeler 2002: 26). Why, progressive agenda that characterized the then, is labor finding it difficult to promote a more movement in the late nineteenth and early socially progressive agenda and achieve greater twentieth century. But as history has shown, labor parity with capital? The answer may simply be has suffered its most crushing defeats when it has that we haven’t yet experienced the kind of adopted such an agenda; therefore, a return to economic meltdown that distinguished the progressivism is unlikely absent extraordinary Depression years. When three out of ten people economic circumstances which open the door for on the block have lost their jobs and fallen on hard such change. economic times, the remaining seven are not While the AFL-CIO supports the arguments prepared to rebel against a social and economic advanced by Dr. Adams and has endorsed both the system that has historically produced favorable International Labor Organization’s Conventions results. When everyone on the block is out of calling for freedom of association in the workplace work, they all have no alternative but to reexamine and the Declaration of Fundamental Principles and the wisdom of the system that has brought them Rights at Work, its goal is merely to make their current circumstances. employers around the world aware of the Notwithstanding a second Great Depression, Declaration’s provisions and convince them to what if labor could somehow overcome the operate their workplaces in accordance therewith. tremendous obstacles to enacting labor law reform Since there is no practical way to enforce and create a system with automatic card check democratic principles in the workplace, labor’s certification, first contract arbitration, a ban on promotion of the Declaration and other worker permanent strike replacements, and stiffer rights proposals as a response to globalization will penalties for labor law violators? Labor strongly inevitably be inadequate to meet the needs of argues that such changes in the law would enable American workers. it to achieve relative parity with capital and I have thus far argued that three of labor’s establish an environment conducive to workplace primary goals (organizing of 1 million new democracy and worker rights. However, as members annually, enacting meaningful labor law previously noted, the enactment of many of these reform, and softening the effects of globalization policies in Canada has only slightly increased through the promotion of international worker union participation rates. This may indicate that Schmidt Labor Research Center Seminar Research Series 13 greater government intervention, while certainly the slash and burn mentality so prevalent in the helpful in balancing inequities in labor- American economy is subordinate to the theory management relations, cannot completely nullify that peoples’ value as employees extends beyond the debilitating effect of strong employer the amount they produce on a daily basis. The opposition. It may be that government chairman of the Siemens Corporation, one of the intervention is only truly effective where world’s premier electronics companies, has employers have come to accept unions as part of reportedly stated that “the hire and fire principle the economic environment. does not exist here, and I never want it to.” (Gray If these assumptions about employer 1998: 169). opposition are correct, what if the American The most obvious problem associated with system of labor relations could be modified to implementing these kinds of labor relations reflect those found in Europe? In Sweden, for systems is that they are socialist. As Thomas example, government has ensured full Geoghegan notes in “Which Side Are You On”, employment through progressive taxation while “the whole thrust of organized labor is….well, not statutorily regulating many aspects of the labor- socialism” (Geoghegan 1992: 6). History shows management relationship. Government regulation that labor’s previous attempts to overthrow has provided workers with protection against capitalism and replace it with a socially arbitrary dismissal, accidents and illness at work progressive economic system have ended in (through health and safety regulations), and disaster. Consequently, asking whether the declining wages (through a standardized minimum American system can be modified to look more wage, wage indexation, social security benefits, like a European-style social democracy appears etc.). It also plays a vital role in the collective futile. However, if such a revolution were to bargaining process by regulating the terms and occur, organized labor in the United States would conditions through which unions and management most likely experience a level of strength similar negotiate employment agreements. Government to unions in Europe, and its goals of increasing involvement in the bargaining process essentially worker participation and strengthening worker provides workers with greater protection against rights would largely be realized. Again, the potential domination at the hands of employers. primary reason for such success would be the These additional protections for workers create a absence of employer opposition. level of socio-economic equality foreign to free In terms of organizing new members, what if market economies. In exchange, the government unions could successfully offset the devastating allows management broad discretion to manage membership losses it has suffered in the industrial their businesses as they see fit, and the private sector by organizing the burgeoning class of white ownership of capital is largely preserved (Gray collar and service sector workers? Would that 1998: 167). spur labor’s revival? White collar workers have In Germany, the market economy is traditionally been more difficult to organize characterized by a comprehensive welfare state because they have tended to view their interests and a business structure in which workers and abilities as being different from those of blue participate in deciding how the workplace with collar workers. They have traditionally identified operate. Such a business model creates greater themselves more with managers because they are equality among workers and employers than exists generally better educated and believe their in the United States. There is also industry-wide superior skill sets will enable them to rise to the collective bargaining over wages, benefits, and ranks of management or negotiate effectively with conditions of employment, and a high degree of management for what they want. That perception job security, both of which are secured through has been gradually eroded by increasingly limited national legislation. When German workers lose opportunities for advancement among white collar their jobs, the government pays them about two- workers and the outsourcing of these jobs to thirds of their incomes in unemployment benefits. cheaper labor markets. As a result, white collar Furthermore, the value of human labor is not workers are now more likely to identify with measured solely in terms of productivity. Indeed, traditional blue collar issues such as promotional Cobleigh – Labor Movement Struggle 14

opportunities and job security, and thus may be an distinction between mandatory and permissive ideal organizing target. (Wheeler 2002: 73) Still, subjects of bargaining (Hardin 1992: 595). It is their organizing preferences tend to differ from argued that the failure of the NLRA to require those of blue collar workers. Their emphasis on bargaining on permissive subjects such as the individualized rewards and promotions leads them basic policies of work organization makes it ill- to form unions that: 1. bargain only for minimum suited to collective bargaining for professional wage levels, leaving room for individual employees because it is those subjects with which bargaining for wages above these levels, 2. professional employees are most concerned. encourage other forms of participation along with Additionally, the Act’s rules establishing the union bargaining, 3. downplay seniority and put more as the exclusive representative of all employees emphasis on merit, 4. rarely seek finely specified runs counter to the preference of many workers to work rules, 5. minimize the strike in favor of bargain individually and create informal collective publicity and lobbying, and 6. are relatively bargaining arrangements as necessary (Wheeler decentralized (Wheeler 2002: 58). The practices 2002: 74). typical of these “associational” unions are A similar argument is made with regard to consistent with the organizational preferences “geographical/occupational unionism“, which identified by Freeman and Rogers in that they involves organizing workers along occupational emphasize individualism, cooperation, and lines regardless of their geographic location. decentralization. This presents two problems for While such an organizational tactic allows unions unions. First, unions would have to completely to expand the scope of their organizing campaign reinvent themselves by relinquishing control over and attract new members, the NLRA limits most aspects of the collective bargaining process. “network-based” or “multiemployer” bargaining. If they agreed to abide by the above principles, For this to be a viable organizing alternative, the they would no longer have the power to bargain Act would have to be changed to permit for premium wages, seniority, or specific work employees of different employers to bargain rules. They would be forced to abandon the jointly with those employers (Wheeler 2002: 52). collective bargaining process completely Given the difficulties labor has encountered trying whenever the members decide to bargain to amend the NLRA, such change is unlikely. individually and would be able to call a strike only as a last resort. Given the workers’ preference for CONCLUSION individual action and the union’s limited ability to “Labor thinks of itself, consciously, as being act on behalf of the members, workers might well as American as apple pie. But it is not. Go to any question the wisdom of having a union at all. And union hall, any union rally, and listen to the they would certainly question the wisdom of speeches. It took me years to hear it, but there is a paying union dues for so little benefit. As the silence, a deafening silence, on the subject of Freeman/ Rogers survey indicates, workers in this individualism. No one is against it, but it never situation might decide that they can just as comes up. Individualism is for scabs. This effectively engage in occasional collective action country is set up for scabs. Crossing a picket line, without the formality of a union. making your own deal. America is the land of The second potential problem with organizing opportunity. The subversive thing about labor is private sector professional employees on a large not the strike, but the idea of solidarity.” scale is that it would most likely require changes (Geoghegan 1992: 5). Thomas Geoghegan thus to the NLRA’s rules regarding subjects of encapsulates the premise of this paper. I have bargaining. Section 9(a) of the Act provides that argued that individualism will always prevail over representatives designated or selected by the the social progressivism embodied by the employees in an appropriate bargaining unit shall American labor movement. The latter is rooted in be the exclusive representative “for the purpose of the idea that “an injury to one is an injury to all”, collective bargaining in respect to rates of pay, but in America, it is simply more appealing to wages, hours, or other conditions of employment.” believe that each of us has the ability to get what The NLRB and the Supreme Court have we want on our own and that, once we get it, we subsequently used this language to establish a Schmidt Labor Research Center Seminar Research Series 15 shouldn’t have to share it with anyone. The Wheeler, Hoyt. 2002. The Future of the American history of the labor movement shows that any Labor Movement. Cambridge, Ma: Cambridge attempt to replace capitalism with social University Press. democracy will be met with defeat, even when the Freeman, Richard and Rogers, Joel. 1999. What very foundations on which capitalism is based Workers Want. Ithaca, N.Y.: Cornell University have collapsed. Consequently, the most viable Press. solution to the problem of employer domination Yates, Michael. 1998. Why Unions Matter. New may be a return to the idea of worker cooperatives York: Monthly Review Press. advanced by the Knights of Labor. If workers are able to assume ownership of the means of Hardin, Patrick. 1992. The Developing Labor Law. Vol. I. Chicago: American Bar Association. production, they are no longer in opposition to management because they are management. Labor Party of America. 2000. Toward a New Labor However, in a system where some are employers Law. and others are employees, the best labor can do is www.lpa.igc.org/documents/lpd_laborlaw.html. to continue advocating for the right of workers to Adams, Roy J. 2001. Choice or Voice?: Rethinking participate in the decisions that affect their lives at American Labor Policy in Light of the work and to promote a more equitable society. In International Human Rights Consensus. Employee ordinary economic times, it is not likely to fully Rights and Employment Policy Journal. Vol. 5, achieve these goals by organizing new members or no. 2: 521-548. electing pro-labor politicians or supporting AFL-CIO. 2004. Summary of the Employee Free fundamental workplace rights abroad, although it Choice Act. must try. In extraordinarily hard economic times, www.aflcio.org/aboutunions/voiceatwork/efca.cfm. it must take advantage of its elevated position in AFL-CIO. 2004. 10 Steps to Campaign Success. society to establish basic workplace rights that www.aflcio.org/aboutaflcio/magazine/0404_10step cannot be taken away, even when the economy s.cfm. recovers and labor is once again relegated to underdog status. The minimum wage, the eight hour day, unemployment insurance, and workplace health and safety laws are proof that labor has the ability, under certain circumstances, to strengthen workers’ rights. As Geoghegan notes, “A union movement in America will always be a scandal. But, at the very least, we want to be cut in on the deal” (Geoghegan 1992: 6). If labor cannot successfully change the system, it must do what it can to be “cut in on the deal.” REFERENCES Gray, John. 1998. How Global Markets Favor Capitalism. Industrial Relations: A Critical Perspective on Business and Management. Vol..V: 156-175. Lichtenstein, Nelson. 2002. State of the Union. Princeton, N.J.: Princeton University Press. Geoghegan, Thomas. 1992. Which Side Are You On?: Trying to Be for Labor When It’s Flat on Its Back. New York: Farrar, Straus & Giroux. Aronowitz, Stanley. 1998. From the Ashes of the Old: American Labor and America’s Future. New York: Houghton Mifflin Company.