A Proposal to American Labor (Page 3)

To clarify the direction we believe labor should go, let's contrast the proposed open-source union model more explicitly with the existing one. Under the current model, workers typically become union members only when unions gain majority support at a particular workplace. This makes the union the exclusive representative of those workers for purposes of collective bargaining. Getting to majority status--in the trade, "50 percent + 1"--is a struggle. The law barely punishes employers who violate it, and the success of the union drive is typically determined by the level of employer resistance. Unions usually abandon workers who are unsuccessful in their fight to achieve majority status, and they are uninterested in workers who have no plausible near-term chance of such success.

Under open-source unionism, by contrast, unions would welcome members even before they achieved majority status, and stick with them as they fought for it--maybe for a very long time. These "pre-majority" workers would presumably pay reduced dues in the absence of the benefits of collective bargaining, but would otherwise be normal union members. They would gain some of the bread-and-butter benefits of traditional unionism--advice and support on their legal rights, bargaining over wages and working conditions if feasible, protection of pension holdings, political representation, career guidance, access to training and so on. And even in minority positions, they might gain a collective contract for union members, or grow to the point of being able to force a wall-to-wall agreement for all workers in the unit. But under OSU, such an agreement, which is traditionally the singular goal of organizing, would not be the defining criterion for achieving or losing membership. Joining the labor movement would be something you did for a long time, not just an organizational relationship you entered into with a third party upon taking some particular job, to expire when that job expired or changed.

OSU would engage a range of workers in different states of organization rather than discrete majorities of workers in collective-bargaining agreements. There would be traditional employer-specific unions, but there would likely be more cross-employer professional sorts of union formations and more geographically defined ones. Within any of these boundaries, the goal of OSU would not be collective bargaining per se but broader worker influence over the terms and conditions of work and working life. Because OSU unions would typically have less clout inside firms or with particular employers, they would probably be more concerned than traditional unionism with the political and policy environment surrounding their employers and employment settings. They would be more open to alliance with nonlabor forces--community forces of various kinds, constituencies organized around interests not best expressed through work or even class (here think environmental, feminist, diversity or work/family concerns)--that might support them in this work. As a result, labor as a whole would likely have a more pronounced "social" face with OSU than it has today.

How realistic is this vision? Nobody knows for sure. But there is evidence to suggest that it is feasible--evidence of unmet demand for unionism among workers, evidence of legal support for minority unionism and evidence that the Internet can be a vehicle for low-cost provision of information, communication and work-related services.

The Market

Approximately 100 million private-sector American workers--including 91 percent of the total--have no collective representation at work. Our mid-1990s survey of worker attitudes found that most workers want some organization--ranging from unions to workplace committees of various forms--speaking to their everyday concerns at work: wages and benefits, statutory rights, technology and training, safety, work/family scheduling conflicts, etc. Applying our results to today's work force, about 42 million workers want an organization with elected representatives and arbitration of disputes with management. Another 42 million or so want an organization more focused on information, career assistance or consultation with management, but still operating independent of management. Together these roughly 85 million workers--a group twelve times the size of present private union membership--are the market for open-source unionism. Capturing even a small share of this market could massively expand the American labor movement and vastly extend its reach.

The Law

Many union and business leaders believe that pro-union workers without a workplace majority have no collective rights--that they exist in a sort of legal black hole devoid of the protections our national labor laws afford concerted activity. That is not the case. In fact, all the basic rights and protections of that law apply to workers acting together in nonmajority situations: protection from discrimination against union activity, the right to strike without being discharged, the right to present demands and request negotiations with management, the right to designate union stewards and the right to bargain and make a collective agreement for members, among others. Not only does minority unionism have historical antecedents in the private sector, but it has strong roots in the public sector, which accounts for an ever larger share of the union movement. Most public-sector unions in the 1960s and '70s first developed from minority representation. Teachers' unions, for example, emerged through agreements negotiated only with members of non-majority associations.

To be sure, getting robust minority union presence in the private sector will not be easy, as employers may react with the same opposition to minority unions as to traditional ones. But there is nothing in the law that prevents or even discourages exploring what minority unionism might look like today.

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