But at least he read it and thought about it. I’m often disappointed that my former colleagues at AFT don’t read, or at least don’t read anything that’s critical about union strategy. It’s not because, as they claim, that they don’t have the time to read. It’s that nobody who works their ass off for a union wants to let a nagging thought in that their hard work, combined with everyone else’s at all the other unions, isn’t going to restore the labor movement.
We need those nagging thoughts. We need questions that agitate and annoy. We need to critically reevaluate structure, strategy, and history. We need to read more, and talk more across unions, across generations, and across disciplines. We need to get out of those airless rooms. We need to cook that pot roast dozens of different ways.
Using the Crisis
Finally, another shibboleth is that there will be no labor law reform until we create a crisis through militant demonstrations of worker power—like sit-down strikes. These are particularly unhelpful when paired with a macho pose, so it’s pointless to even think about or discuss labor law reform until that wave of sit-down strikes is in process.
In broad strokes, this is not wrong. But it misses some crucial nuance because there are really two kinds of crisis that can influence labor law. One is the crisis of capitalism, when the system, left to its own devices with no effective checks on its power, leads to political and economic turmoil that frightens a faction of the capitalist class into loosening some of the restrictions on unions in the hopes of stabilizing the economy and body politic. The other crisis occurs when we workers use the limited opening we’ve been provided to demonstrate our collective power—to ourselves and the bosses—to win a more accepted representational role in the workplace and in government.
The Great Depression of the 1930s was the first kind of crisis, and the Roosevelt administration provided an unanticipated opportunity. When Franklin Roosevelt was elected in 1932, unions were at one of their weakest points in history. Membership levels had declined from postwar highs, and strikes were uncommon. The American Federation of Labor did not endorse in the election, and there was no reason to expect the Democrats to do anything for labor.
And yet, one of the first acts of the New Deal administration, the 1933 National Industrial Recovery Act, guaranteed in Section 7 that “employees shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Now, the main purpose of the law was to get competing firms to engage in price collusion to stabilize big business. The sad reality is that the weak nod to labor in the NIRA was merely a sweetener to help get a few extra votes for its passage. But its tripartite industrial boards, consisting of one representative each from companies, unions, and “the public” for each major industry, did have the power to establish minimum wages and work rules. Strong unions like the Amalgamated Clothing Workers and United Mine Workers were able to press the boards to raise wages and spread union standards across non-union firms in their industries. Elsewhere, the boards gave little thought to working conditions except for their dogged determination to keep on union-busting.
This gets lost in a popular understanding of labor history. First of all, Section 7’s “right to organize” had no enforcement mechanism, yet workers nevertheless took it as a signal that the government would have their backs. John L. Lewis famously sent organizers into the coal fields with the message, “The President wants you to join the union!” and restored the United Mine Workers sagging membership and power before similarly turning his attention to the steel industry.7
There’s a lesson in this, in knowing what we have the power to change, and in being smart enough to recognize that the political environment has changed enough that our own approaches to the work should change too. Section 7 wasn’t worth the paper it was printed on but to just enough workers in 1933 it meant something. The sit-down strikes that started in 1934 and the Wagner Act (NLRA) of 1935 might not have happened without that earlier signal.
Today, capitalism is in a crisis that exceeds the Great Depression as an existential threat to our democratic institutions. It’s not just the rampant poverty and massive inequality but the resurgence of racist authoritarian violence. The decades-long attack on unions is a large contributor to these problems, a political reality that has not gone unnoticed among liberals and a large section of the centrist establishment.
The Democratic primaries saw almost all of the candidates, even those who were boosters of charter schools and other assaults on public education, fall all over themselves to endorse and support teachers strikes.8 And, prodded by SEIU, every candidate who remained in the race long enough put out detailed and robust labor platforms endorsing the union’s demand of “unions for all.”9 Even centrists like Beto O’Rourke10 and Jay Inslee11 endorsed some version of the proposals I will outline in this book. This is different from the usual vague platitudes that Democrats are expected to spout in order to vie for union endorsements. This is an opportunity. Now, I’m not holding out any Democratic president as labor’s savior, but what I am saying is that we’d be fools not to be debating legal reforms now that might be in consideration in the near future. What do we gain by abstaining?
Moreover, we must be much more strategically deft than we have historically been. The next few years are pregnant with possibilities. We should pursue reform as a dialectic. There are the changes that we have the power to make ourselves, and those that will be granted or imposed by the system itself. But every change—no matter how minor, no matter if it comes from above or below or if it’s imposed on us by our enemies—creates the possibilities for more change. We should be constantly debating strategy and reexamining the political environment and workers’ attitudes. We must be ready.
TWO
Our Peculiar Union Shop
IF THE SYSTEM IS A TRAP, then we need to understand what that system is and how it developed. Let’s start with the framework under which most union leaders and activists would consider a workplace “unionized.” It is a peculiar thing, from a historical and global standpoint. In the United States, a union shop is one in which one union, among many possible alternatives, serves as the exclusive representative of all employees within a legally defined bargaining unit based upon the majority of the affected workers’ preference. And all workers in a union shop are expected to join the union or pay an agency fee.
To union members, leaders, and staff this feels totally normal and desirable. It is what a union is. Even as the “Right to Work” laws passed now by a majority of the states and the Janus v. AFSCME Supreme Court decision have made this arrangement illegal in many workplaces, we still strive to turn as many workplaces into union shops as we possibly can, even if that means changing the law where we must. But the fact is that this is a totally unusual structure. Unions in other countries do not look like this! This isn’t even how unions have always been structured in this country.
We tend to assume that the collective bargaining framework was the product of active strategic choices. Surely Walter Reuther, Sidney Hillman, John L. Lewis and other leaders of labor’s great upsurge in the 1930s sat around a table, debated all the possible alternatives, and decided that this framework is what we should pursue. However, the reality is that much of our system was produced by accident, the result of differing and conflicting strategies.
The Closed Shop and the Roots of the Labor Movement
The idea that everyone in a workplace should belong to a union is in the DNA of the U.S. labor movement, like the vestigial tailbone is part of the genetic code in human DNA. It’s largely a holdover