The Big Fix

The Big Fix

Bringing back a strong and healthy labor movement is everybody’s job—but to do it, we’ll have to change our corporate and political models as well.

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(Sue Coe)

This article is part of The Nation’s 150th Anniversary Special Issue. Download a free PDF of the issue, with articles by James Baldwin, Barbara Ehrenreich, Toni Morrison, Howard Zinn and many more, here.

As a labor lawyer, I hate it when people pat me on the head and say, “Do you think the labor movement will ever come back?” As if it’s my problem and not theirs. Or as if it’s something that “the unions” or “organized labor” have to do—not, as I think, an obligation that we all have as citizens.

I can give the usual, often hackneyed reasons for bringing back a labor movement. For starters, we need to raise wages—a lot—or there will be no middle class. From 2000 to 2012, the pay of the bottom 70 percent of Americans was flat or falling, even as non-farm productivity rose 30 percent. If we choose a longer time frame, it’s even worse: since 1979, pay for most workers has barely budged—but productivity has risen 75 percent. It is impossible to keep up aggregate demand without pay raises, unless middle-class people go recklessly into debt. We did that in the lead-up to the financial crisis of 2008, and without a labor movement, we will do something similarly disastrous again.

A labor movement will also help us recover our sense of citizenship by giving us more control over our lives. I used to complain that people no longer had unions. Now many of us no longer have employers, either. Even college grads with science degrees and high skills have to work as temps. We can’t carry the bad habits that we acquire in the workplace—disengagement, learned helplessness, unquestioned obedience—into a democratic society and then expect that society to work.

Is it even possible to bring back some kind of labor movement? Yes, it is—but we have to do three difficult things all at once:

First, we have to change our labor model. Here is a very difficult point to get across in this country: our labor model, based on “exclusive representation,” is just plain weird. In the United States, either the union represents every single person in a plant or shop, with mandatory collection of dues, or it represents no one. For the most part, that’s not the way it works in other parts of the world. In Belgium and Germany and just about everywhere else, the union represents the militant minority, the true believers, the men and women who really want to join. Since our model clearly isn’t working, why not try things the way they do in countries that still have unions?

Second, we have to change our corporate model. To give people more control over what they do at work, we have to move from a dysfunctional stockholder model, in which CEOs are not accountable even to shareholders, to a stakeholder model, where managers are at least partially accountable to workers. Indeed, to bring back the labor movement, we might need to change our corporate law more than our labor law. One way to do this is to put in place more European-style works councils. Such works councils—which are elected by everyone, union or nonunion, including the managers—have special rights to sign off on how the work is done. Another way is to bring co-determination to our bigger companies—that is, to let workers elect up to a third of the directors who sit on the board if the company has 500 employees or more.

Third, we have to change our political model. We need a stronger national government—one capable of passing and enforcing the laws necessary to put a labor movement in place. We need a state strong enough or independent enough of the business interests that have weakened ours.

But we can’t change our political model unless we restart a labor movement that brings more people to the polls. And that’s the problem: we need to change our political model to change the labor and corporate models, and we need to change our labor and corporate models to mobilize enough people to change the political model. Indeed, to fix any one of these models—labor, corporate or political—we have to fix them all at once.

* * *

Let’s start with the federal government. Yes, it’s hard to fix the Constitution, a virtually unamendable document that invites gridlock. The Senate in particular pushes the country so far away from “one person, one vote” that one might wonder if we truly have a republican form of government. But in defense of the founders, they didn’t invent the filibuster or gerrymandering, which has made labor-law reform impossible.

Some will ask, “What does the filibuster have to do with the labor movement?” Everything. Just as the filibuster was used to lock in slavery, today it helps lock in the status quo of low-wage America.

At least twice in my lifetime—first in 1978 and again in 1993—statutory labor-law reform proposed by a Democratic president passed a Democratic House and then died by filibuster in a Democratic Senate. The prospects have become so hopeless that during the Obama administration, no one even tried any statutory law. For the moment, with the Republicans holding the majority in the Senate, eliminating the filibuster wouldn’t even matter. But one day, it will be the biggest obstacle to labor-law reform.

For the same reason, we have to fix the gerrymandering of the House. Perhaps that will change after 2020, a presidential election year, when more Democrats could end up drawing the districts. Or perhaps the Supreme Court will outlaw it sooner, if the balance of the Court changes.

To do any of these things, we have to mobilize more voters—not just during the midterm elections, but in presidential election years as well. The base is simply too narrow for Congress to have the legitimacy to do much. Just 37 percent of the electorate showed up in the last midterm election. Even in 2012, we had a turnout far below that of most democracies in the world.

But if the federal government is so weak, how can we change the corporate model? Like the Progressives a century ago, we can start with the states. It’s at the state level that corporations get their charters. One or two states could get the ball rolling by requiring corporations to elect employees to corporate boards.

Wait—that’s impossible, right? Corporations facing this new requirement would merely relocate to some other state with weaker laws. And that’s true: many corporations are beyond our reach. But many nonprofits are trapped in their home states. Nonprofits may not be as big as Walmart or General Electric, but they’re big enough. And they can’t run off to Delaware to incorporate—or if they try, they could lose the all-important property-tax exemption within their home states.

It’s easy to imagine that with an elected janitor in the same room as a nonprofit CEO making $300,000 a year, that organization’s labor policies will start to change. Works councils might even sprout up.

Besides, there’s a good nonlabor reason to let the employees elect a few directors of the big nonprofits: they have no stockholders, and nonprofit boards are self-perpetuating. Electing a few nurses to the boards of big university hospitals, for example, might help them to hew more closely to their charitable mission. (It’s important to note that this is about corporate governance, not labor law. There’s nothing here about unions or collective bargaining.)

Once the idea of co-determination becomes real in the nonprofit sector, it will open up the chance to push it toward the for-profits. The president could encourage this development by using his procurement authority to issue an executive order saying, in effect, “Other things being equal, the government will prefer vendors that let employees elect at least a few directors to their boards.”

* * *

Finally, as mentioned earlier, we need to change our labor model. We should have a law that protects employees’ rights to join a union, freely and fairly, without being fired. In The Nation back in 2002, Barbara Ehrenreich and I made the case for a civil-rights act for labor. The idea is to enact a civil-rights law banning discrimination based on one’s support of a union, just as we do in the case of race, age or gender.

Such a law would open up the labor movement in ways we have not seen in decades. It would give individual workers—not just union organizations—more control over when and how to organize. Employees could retain a lawyer and press for remedies that even the strongest unions do not have right now. What would they get? Preliminary injunctions, punitive damages, juries, legal fees to help fund organizing drives—and, best of all, a discovery phase during which they could depose CEOs and more or less rifle through the corporate files.

* * *

The idea of such a civil-rights law is slowly moving out of the op-ed pages and into the congressional debate. In the House last summer, Progressive Caucus co-chair Keith Ellison and civil-rights icon John Lewis introduced the Employee Empowerment Act, which would enable workers to file civil complaints against employers who violate basic labor rights.

There is little hope for such a bill in the current political climate, of course. Many people believe that in the absence of significant labor-law reform, initiatives like the “Fight for $15” minimum-wage campaign and “alt-labor” movements like OUR Walmart are the best way to go. These are great causes, but they have limits. For one thing, they rely on foundation funding. In the long run, the money should come from unionized high-skilled workers. The more of them we can organize, the easier it will be to support efforts to organize lesser-skilled workers.

Even under current law, we could try organizing for the few rather than for the majority. We could give up the prize of “exclusive representation” and aim to represent the militant minority who want to join. As a labor staffer in Germany told me, “If we had to get a majority vote here, we wouldn’t have any unions either.” So forget 50 percent plus one—let’s go for 40 percent, or 30 percent.

Look at the approach of Volkswagen and the United Auto Workers in Chattanooga, Tennessee, in the heart of non-union Dixie. Last February, the UAW lost an election for exclusive representation. But it didn’t pack up and go home; it kept pressing. In November, Volkswagen said it would meet with any union that had the support of 15 percent of its employees—and pledged to meet every other week with a union that had 45 percent support. This followed a tentative pre-election deal in which Volkswagen agreed to a works council that would take the lead in negotiating plant rules and that the UAW would not control had it become the exclusive representative.

Some say it’s impossible to give up exclusive representation. Here’s one objection: “If there is no certification as exclusive representative, then the employer has no legal duty to bargain.” There are two responses to this. First, it’s likely that the employer has such a duty to bargain whenever workers exercise their right to act collectively under Section 7 of the Wagner Act, the basic labor right from which all others follow. Under Obama, the National Labor Relations Board might yet reach that interpretation. Arguably, Section 8(a)(5), which creates the duty to bargain, does not make it conditional on the union being the exclusive representative; it just precludes an employer ignoring an exclusive representative to bargain with someone else. Second, does it matter if there is such a duty anyway? Even when a union wins election and becomes the exclusive representative, the employer often refuses to sign the first contract. What matters is whether the union is able to disrupt. It may be easier for a key group of 30 percent to disrupt for two or three hours every week than to get a 100 percent walkout for six or seven months.

At the same time, it would be illegal for that 30 percent to negotiate for everybody else. But in the 1930s, as labor-law expert Charles Morris has pointed out, the first labor contracts applied only to union members. Naturally, if the employer didn’t extend those benefits to all, the others would join the union.

As the Chattanooga case shows, more in labor are thinking seriously about this approach. But this requires a different kind of labor movement—one that is not living off compulsory dues or even a fair share from everyone at work, but is getting its money from a more militant few. Instead of bargaining for 6.6 percent of the private sector, we’d bargain directly or indirectly for up to 30 percent or more. We would have to work a lot harder, even if we could reach more people. And the money might not be there for the researchers, staffers and lawyers (like me) in the relatively secure way it was before. But this new movement could spread across the country and mobilize millions of workers who have never heard of organized labor.

If we can mobilize that many people, our chances of changing the political and corporate models would be much stronger. We would be a big step closer to the goal that the great American philosopher John Dewey set for us: to extend everywhere and as far as we can a democratic way of life.

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