There are two plainly political reasons why the ClO’s vision of union certifications won out. First, the CIO was an ally of the administration and increasingly important to the New Deal electoral coalition, whereas the AFL’s election activity was more muted. Second, employers preferred not to deal with multiple unions, particularly if they would be competing over who can make bigger demands and wage more militant job actions. Of course, a boss’s preferred number of unions to deal with is almost always zero. But one is their second favorite number.
The Political Costs of Exclusive Representation
Unions that win certification as the exclusive representative of a bargaining unit do not automatically win dues-paying members. They win the right to bargain on behalf of the workers, and with that the legal and political obligations that have built up over time. Today, where they are strong enough to do so, unions negotiate “union shop” clauses into collective bargaining agreements, which demand that workers hired into bargaining unit jobs join the union.
The prewar industrial unions were voluntary membership groups. They certainly aimed to get every member of the bargaining unit to join the union. (Again, that notion was simply in the DNA of American unions.) And they were mostly successful. Unions were winning. Every new agreement brought substantial improvements in wages and working conditions. Workers were still moved by the spirit of solidarity that came from supporting each other in job actions. A worker who didn’t join the union was a scab, a pariah, a social leper.
The Second World War changed everything. After the bombing of Pearl Harbor, the leadership of both labor federations immediately pledged not to strike for the duration of the war. Those newly organized steel mills and auto factories were converted into wartime production. America’s factories were the home front. The union leaders were being patriotic. It may be ironic to some, but the Communists, who led some unions and were on staff at many more, were the most militant enforcers of tamping down worker militancy. After all, this was a war to fight the fascists in alliance with the Soviet Union!
The NLRB was temporarily supplanted by a War Labor Board that had the authority to approve or disapprove tentative agreements negotiated between unions and their employers. That this had been the fear of the AFL craft unions in 1935 and that they were now okay with it was another little irony.18
Less than one year later, Roosevelt issued an executive order for a wage freeze to combat wartime inflation. This put union leaders in a real bind. Most union members shared the patriotic impulse of their leaders and wanted to aid the war effort at home. But they were also workers who were dealing with faster and more intense demands on the job and a rapidly rising cost of living. Now they were told they could not get a raise and that their union leaders and staff were legally compelled to stop them from engaging in any protest activity that could slow down production.
So, many workers stopped paying their union dues. This wasn’t scabbing. This was protest! Unions that had to expend significant resources maintaining labor peace and aiding the government and their employers in increasing productivity simultaneously faced the threat of a precipitous drop in their dues revenue.
In response, the industrial unions pushed hard in 1942–43 for closed-shop arrangements like the craft unions had long enjoyed. Employers resisted, and the resulting bargaining impasses wound up before the War Labor Board for arbitration. The government was keenly aware that without some guarantee that dues revenue would not continue to decline, there was a significant risk that some unions would abandon labor peace to win back lost members, imperiling wartime production.
The War Labor Board dictated a compromise that nevertheless set the stage for the union shop. “Maintenance of membership” provisions were inserted into collective bargaining agreements, thereby ensuring that anyone who was a member at the time the contract was signed had to remain a member for the duration of the agreement. With this endorsement of the union security principle from the federal government, most employers soon relented and agreed to “union shop” clauses in successor agreements.
This is a crucial point and a little understood distinction. From their inception, mandatory union fees were not intended to compensate unions for the financial costs they bear for bargaining and filing grievances. Mandatory union fees are the compensation for the political costs of representing all the workers in a shop and maintaining labor peace.
This remains true today. It is the combination of exclusive representation and the union shop that enables unions to agree to “shared sacrifice” or just plain old concessions and do the heavy lifting of selling them to the workers as being for the “good of the company” or the long-term viability of jobs. Unions wind up taking the heat for employers’ bad business decisions and their demands that workers pay for them.
In the 1980s, the United Autoworkers agreed to the first contracts that contained rollbacks of compensation and work rules, ostensibly to help the “Big 3” auto companies stay competitive with foreign imports. Workers in the Canadian shops responded by bolting to form a new Canadian Autoworkers union. They were taking advantage of the fact that there’s a separate body of Canadian labor law, and that protectionist trade policies and the difference in currency values gave them a better ability to resist the concessions.
Canadian workers dropped the UAW because they could. Imagine if the CIO had lost its push for the principle of exclusive representation. Imagine if American workplaces still had multiple competing unions. We’ll play with this thought some more later in this book. For now, let’s just say that the Big 3’s push for concessions would have been messier and more chaotic and that the bosses would certainly have taken more heat and more of the blame for the situation from the workers.
The Duty of Fair Representation and the Workplace Constitution
Unions have a legal obligation to represent all members of a bargaining unit. That doesn’t just mean bargain a contract that applies for everyone. It means that if a member of the bargaining unit comes to the union with a problem, the union must investigate and must expend resources on filing a grievance if the case has merit. And the union must do this regardless of whether or not the worker is paying dues.
This is called the duty of fair representation. It has the effect of bureaucratizing unions, to some extent, converting fighting organizations of workers into quasi-governmental workplace court systems. Workplaces need this kind of representation, but the way that we do this in the United States is unusual and, like so much of our labor relations system, was not entirely intentional.
The duty of fair representation developed partly in response to the shameful racism of some unions. In particular, the old railroad brotherhoods used their collective bargaining to try to maintain the workplace segregation that the bosses had fomented long before the unions came on the scene.19 They barred black workers from membership and then tried to negotiate closed shops, which would have totally barred blacks from employment. Later, when black workers managed to get jobs on the railroads, the brotherhoods negotiated racially stratified job categories and pay scales and tried to keep blacks out of the better jobs. Other unions, particularly in the South, attempted to maintain segregated locals and bargaining units by jointly petitioning the NLRB to represent workers on a kind of “separate but equal” basis.
This is all ugly stuff and naturally aroused the NAACP to launch legal campaigns to prevent it. Led by Herbert Hill, NAACP lawyers soon moved beyond merely trying to prevent union discrimination and began trying to use labor law to advance a broader civil rights agenda.20
The period that I’m talking about here is the 1940s and ’50s, when the idea of getting civil rights legislation passed was a very long term proposition (bordering on fantasy). But Hill and his allies saw the National Labor Relations Act as a pathway for getting constitutional rights into the workplace. Sophia Z. Lee has shone new light on this theory and the legal campaign that pursued