Lighting Labor's Fire

by Barbara Ehrenreich & Thomas Geoghegan

The Nation December 23, 2002

The collapse of union membership in America, from its peak at 38 percent in the mid-fifties to 9 percent of the private work force today, is the one big reason for our roaring inequality. It's why the poor and middle class are still being cheated of pensions, healthcare and a fair share of the GDP. Yet we have no chance--for now--of reforming the labor laws that make organizing so difficult. There is little hope, for example, of giving the now toothless Wagner Act some bite, in the form of penalties for illegal unionbusting. Not in this Congress. Or the next. Or probably the next. What, then, is left for the American left? To give up on so many of the issues we care about?

The underlying reason for organized labor's decline is that our labor laws do not let people join unions, freely and fairly, without being fired. Yes, as the Service Employees International Union and others have shown, it is possible to do some organizing "outside" the Wagner Act, ducking the National Labor Relations Board and endless court appeals. But this kind of organizing seems to be only enough to keep labor from disappearing. To bring labor back, some change of law has to occur. Yet change of a good kind seems all but utopian. Even under a Democratic President, House and Senate, it was still easy for antilabor senators to stop a striker-replacement ban in 1993, and to do so with a filibuster that didn't even work up a sweat. And without a labor movement, what's left to us but to snicker at Bush and all the Bush clones to come? No one, not even labor, seems to have a strategy to bring labor back. And without such a strategy, it is hard to see how the American left, such as it is, can "dream responsibly" of, say, national health insurance, or even of a decent defense of Social Security.

What we need is a new approach to rebuilding the unions--and to labor law reform. There is a hint in Nelson Lichtenstein's recent book, State of the Union, as to what it might be. Lichtenstein argues that in many ways, organized labor missed out on the "rights revolution" of the 1960s and '70s, which won individual workers new protections based on gender and race. True, some unions took advantage of the civil rights movement to organize low-wage African-American hospital and other service workers in a number of cities; and grassroots feminism has certainly contributed to the unionization of women. But the language and, with it, the ethos of individual rights were quickly co-opted by management, with its stress on the "right to work" and the "right" to have a say in how one's dues are spent. Company anti-union propaganda, as at Wal-Mart, for example, claims that a union will deprive the individual of his or her individual access to management. Never mind that management retains its right to fire nonunion workers at will, for infringements as vague as a "bad attitude," or that, for the past two decades, corporations have steadily encroached on workers' privacy and rights through drug testing, personality testing, ever-more sophisticated surveillance and a proliferation of shop-floor rules such as "no talking."

The AFL-CIO has responded only weakly--with a "Voice @ Work" campaign, suggesting that the workers will be empowered individually, as well as collectively, through unionization. But by and large, it has ducked the issue of individual or civil rights other than the right to join a union. As a result, many workers, perhaps especially white males, perceive unions exactly as management would like them to: as overbearing bureaucracies in which the individual is easily lost or even crushed. This is still true even as workers now are angrier and more willing to take on their employers.

To bring a real labor movement back, we may need a more individualist, even libertarian approach, one that finally brings the "rights revolution" to American workers, regardless of gender or race. The ultimate goal is still to change our labor laws and bring back the old union spirit embodied in words like "solidarity" and the use of "brother" and "sister" as affectionate forms of address. But to get there, unions need to engage the individual worker directly, and not only as an atom within a potential bargaining unit. To this end, we propose a number of approaches and initiatives. Some have a libertarian flavor, at least compared with existing union culture. Others are more traditionally "collective." We realize, with humility, that in the field, at the local level, in universities, others may have similar or better ideas than the specific ones we discuss below. What these ideas have in common is that we can start working on them now. To begin with the biggest:

1. Individual Membership At present the only way for most workers to join a union is to pass through a kind of trial by fire--an arduous, often risky, organizing drive that may last for months. No such ordeal is required of people who would like to join, say, the National Organization for Women or the NAACP, who can simply send in their dues. In many European countries, like Germany, anyone can join a union individually, no matter who they are. Yes, it's true that labor law is different "over there," and labor can often bargain in workplaces that never voted in a union at all. (As a result, labor in Europe can more easily bargain for whole industries.) Still, the Europeans have a point. Why, they ask, do you keep all your "true believers" out? The first step toward the revitalization of American unions should be to create a form of membership accessible to any worker. Recently in The Nation (June 24), Richard Freeman and Joel Rogers took a step in this direction by suggesting that the AFL-CIO try what they called "minority" unions. These would be small groups of pro-union workers, without the collective bargaining rights of old-fashioned majority unions. We're sympathetic to this, of course. But remember, such people would be volunteers for only half a union. And would "half a union" really be half a union, or would it end up being less than zero? Think of a single Starbucks where only three of fifteen people join. They have no contract. The "minority union" members can be picked off and fired (that may be illegal, but there are stiffer penalties for jaywalking). And what can a union staffer do for them? Get them higher wages? No. Cut overtime? Of course not. Indeed, in many a workplace, the business agent, or BA, can't even get in the front door! Yet Freeman and Rogers are surely right about their big point: Labor has to find a way to let people sign up without necessarily going through an organizing drive.

What we have in mind, however, is a very different way of being an "individual" member. There would be no "group," not even a "minority" one. Also, the service being offered would be specific and well defined. Best of all, the AFL-CIO would have to do little more for our project than lend its name. We're not talking about an AARP-type membership, such as the AFL-CIO tried a few years ago. In that particular case, there was no union-type service that the individuals got. Nothing but VISA cards, hotel discounts, etc. The idea died of its own silliness. To make individual memberships work, the member has to get a real union-type service, somehow connected to wages, hours, working conditions. It has to be limited: a fee for a specific service, to be rendered now or even later. And it should offer the one thing that every American, stuck in a job, sooner or later longs to do--take the boss to court! Or at least, get to talk it over with your lawyer. That's the "service." Two hours a year of free legal services, i.e., a consultation with a real lawyer. About labor law? No, about the maze of special employment laws, civil rights laws, laws from disability to family leave to 401(k)s. What the individual gets, in the name of the AFL-CIO, would be a kind of legal referral off the premises: And if you don't need it this year, you can bank it for later. As we envision it, this service would not come from the union's own lawyers but from the private bar. It is long overdue for the AFL-CIO to connect with lawyer groups like the National Employment Lawyers Association, a network of progressive lawyers who do civil rights, Title VII, sexual harassment and ERISA (retirement benefits) cases. The unions and NELA would run the program, which would function like an Automobile Club card for your breakdowns at work. Best of all, if we want, we can sign up in secret. But people will feel like they are getting a union-type service and will know just what the service is. What's the payoff for the AFL-CIO? Millions of new members. Even traveling salesmen may start to join. Then think of all the people labor can mobilize on Election Day!

2. Start Memberships With Other 'Flavors' We suggest other forms of individual memberships for those who want a connection to the labor movement but do not want or need legal services for themselves. One possibility would be ACLU-type membership. The idea here is to have an ACLU within the existing AFL-CIO, ideally closely tied to the National Workrights Institute in Princeton, New Jersey, which is itself a spinoff of the ACLU. That is, set up an organization, member-based, that is very much like the ACLU, except that its focus would be on civil liberties at work. The issues: cameras in the bathrooms, personnel files, post-9/11 screening, drug testing, undocumented workers, racial profiling, etc. Outsiders can join. Existing union members can check a box that earmarks part of their dues to go to "labor's ACLU." In addition, we suggest an international-solidarity membership, open to existing members as well as interested outsiders. Dues could help support strikes and organizing drives in other parts of the world. One great thing that a member would receive is a monthly magazine (perhaps by e-mail), with country-by-country reports as to what the labor movement is doing in that country. Some may scoff at a mere magazine, but Seattle showed that there are some people, especially young people, who want some sense of connectedness with labor movements around the world.

3. Do a Few Tammany-Type Things for the Poor More than just sign up individuals, labor has to raise its profile, especially among the working poor. Long ago the unions thrived among the poor and worked alongside the old big-city Democratic political machines. Now those machines are gone, but the unions could pick up and carry out some of their useful services, albeit updated. We don't just mean that labor should keep reaching out to community groups. They should deliver community services. For example: the earned-income tax credit. According to a study in 2000 by Katherin Ross Phillips of the Urban Institute, half of those eligible for the EITC fail to get their money. They don't know, or don't submit the tax returns, or are too wary to go to H&R Block, which ends up taking much of the refund. The old urban machines would have put this money in the hands of people. Why not the unions? With help from the rest of us, the unions could scour up foundation money, train people and set up storefront offices to help people fill out the forms. The working poor would come to see the labor movement as a concrete source of help, even in cases where organizing is still only a distant possibility: "The union helped get me my money." We note, though, as Cesar Chavez often said, that the unions should not give away these services for free. Make people pay a nominal fee and give them individual memberships. Then bring them out on Election Day.

4. 4. Start Ten 'Labor Colleges' in Ten Cities Here is a sobering thought: What can labor give a twentysomething? In Britain, where it is relatively easy to join a union, the Trades Union Congress has found it difficult to persuade many young people that unions have much to offer. A national health program already exists. And with people switching jobs as often as they do in America, what does a wage increase, even of 2 percent or so, mean in a job you may leave in a few months? So some in British unions propose tying union membership to training: from basic literacy on up. Imagine if labor, not-for-profits and various schools joined together to create programs in the basic and not-so-basic skills. Imagine if, as part of one's union membership, dues allowed people to invest in themselves. To have such programs in the ten biggest urban areas could mean reaching in effect well over half of the work force. Especially at a time when unions can't raise wages very much, it helps to connect a union membership (in the minds of nonunion America) with a lifetime program of learning--from, say, welding to organizing and public speaking. All the above ideas are intended to make labor more appealing, to build up our dwindling individual union memberships. But once there are hundreds of thousands of individual members, how should labor use its new political clout?

5. 5. Make California, by Referendum, The Prototype of 'Europe' We assume for now there is no chance that Congress will enact any law prohibiting striker replacement or the like. But there is a side door to labor law reform: a referendum in California. Go to the people, or at least 25 percent of the nation's people. Seek a state law (which could not be pre-empted by federal law) that changes the state law or common-law rule of employment "at will," requiring instead that no one can be fired, union or nonunion, except for "just cause." Labor has always (unwisely, it seems) resisted such a law, because this kind of protection is supposed to be, at least in America, a benefit of union membership. But in most European countries, this is a right that belongs to everyone, and it is one of the reasons unions remain relatively strong there. It takes away the fear factor. People can put on a union button without fear of being fired. Such a law, since it extends rights to everyone, is likely to be very popular. Once in place, it need only spread to three or four other big states to become, in effect, the law of the land. Then the entire atmosphere or climate for organizing will change, and people can at least debate joining unions without risking their jobs.

6. 6. Use Soft Money to Organize The McCain-Feingold campaign-finance reform law has perhaps freed up for organizing some of the soft money that labor customarily gives to the Democratic Party. It is important for labor and progressive candidates everywhere to understand: Money for organizing is a kind of "soft money" contribution. Let's assume that the AFL-CIO statistic is right for white male voters: If they are nonunion, they voted 69 percent for Bush, 35 percent for Gore. If union, the ratio almost flips: 59 percent for Gore, 35 for Bush. Put another way, union organizing "flips" more votes, at least among white males, than any number of television commercials. Progressive politicians should demand such contributions when labor knocks on their door. "If you want my support, organize in my district." Likewise, unions should concentrate their organizing in swing districts and states. Any organizing, while it lasts, creates a blip, bringing more nonmembers and quasi members into the fold for a while.

7. 7. Push the Mail Ballot The biggest disaster for labor, and every labor cause (including labor law reform), is that the vast, vast majority of hourly workers, both women and men, simply don't vote at all. This is not just a matter of apathy and alienation: In the new American economy, with working mothers, suburban sprawl and two-hour-a-day commutes, many Americans have a workday that simply does not give them a fair or equal shot at getting to the polls. In a few states, such voters can get an absentee ballot, but that takes foresight and planning that most of us lack. So if people can't get to the polls, why not bring the polls to the people? By that we mean: Campaign for an Oregon-type mail ballot, sent to the home of every registered voter. When Oregon went to the mail ballot, it already had liberal absentee voting rules and, as a result, already had the highest voting rate in the nation. With the mail ballot, the voting rate shot up by 10-25 percent in some elections. The new voters? Hourly workers, the elderly--in other words, labor's constituency. As we mobilize more of these "quasi" members, this puts pressure on politicians to raise the minimum wage, spend more on childcare, etc., and generally raise working standards. By the way, in the 2002 election, Oregon had a turnout rate of 65 percent, almost equal to Minnesota's and South Dakota's, among the highest in the nation. Now we can turn, finally, to the subject of labor law reform.

8. For God's Sake, Come Up With a Labor Law Reform Americans Can Understand! Sure, we support a ban on striker replacement. Or repeal of Taft-Hartley's ban on secondary boycotts. (At one time these strikes allowed labor to shut down a whole industry, or an area like an airport.) But reforms like this won't win many hearts and minds. Indeed, how many people even understand what is being discussed? Let's assume there will be no labor law reform for now. At least let's come up with a form of it that ordinary people will understand and be willing, eventually, to fight for: Make the right to join a union a civil right, by adding such a right to those protected by the Civil Rights Act of 1991. The struggle for such an amendment would finally bring the "rights revolution" of the 1960s and '70s to the labor movement. Part of the appeal would be to American individualism: "We don't care if you join a union or not, but you should be able to put on a union button without being fired." And if we were to succeed in making the right to join a union a civil right under the act, anyone who is fired could go not just to the National Labor Relations Board, where such cases usually disappear without a trace, but directly to federal court. Just as in Title VII cases, plaintiffs could receive compensatory damages, punitive damages, preliminary injunctions, even temporary restraining orders--and, yes, payment of their legal fees. And with a chance of getting their fees paid, it would be a lot easier for the progressive lawyers of America to join the labor movement on the barricades. No, it will not pass now, but neither did McCain- Feingold, at first. But it was a bill that, for all its faults, was at least a vehicle for a reform movement. Amending the Civil Rights Act will not solve everything. But at least people would understand it. Women's groups, civil rights groups and others can organize around such a bill as they cannot organize around, say, striker replacement. The point is to frame a reform that in itself helps to build a grassroots movement. * * * Of course, it may be that even all the new ideas in the world can't bring back the labor movement. But let's suppose the chances are as bleak as one in four. If it were the bottom of the ninth, two out, our side losing, with a .250 hitter coming up, would our side say, "What's the point--the chances of a hit are only one in four"? In the midpoint of the Bush era, we can at least send up a few .250 hitters to the plate. We would love to see the AFL-CIO take up the reforms we've proposed. But ultimately, the labor movement is too important to be left to the AFL-CIO, however much we may admire John Sweeney and his administration. It's up to all of us, not just to them, to bring the labor movement back.