Surveys show that almost 50% of American workers want to join a union. Yet just a bit more than 10% of those workers actually belong to one. Why?
One regular answer is that the law only allows a union where a majority of workers in a particular workplace vote to form one -- and it's extremely hard to jump from no union in the workplace to winning an election in the face of antiunion corporate tactics. So if a workplace starts with only a minority of workers committed to unionization, they have no legal ability to collectively bargain with an employer, even on behalf of those specific workers.
Or so goes the conventional wisdom in the labor world.
But as Charles Morris argues persuasively in his new book, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace, this conventional wisdom is dead wrong. Looking at the history of the drafting of our federal labor law, Morris argues that the original intent was that if, say, 30% of workers of an employer want a union, they have the right to form one -- and employers are legally obligated to bargain with them on behalf of the work conditions of the union members. No election is needed since the union is not claiming to represent all workers, just those who join the union and demand better conditions.
As labor explores new strategies, such "members only" unions could become an important new approach to organizing some of labor's bitterest corporate foes.
Given that a company like Wal-Mart will use scorched-earth tactics to prevent any individual store from unionizing -- even closing them if they vote for a union -- a strategy of starting by organizing a minority of workers at multiple stores seems like a far better approach. In fact, labor is actually implementing this strategy at Wal-Mart stores down in Florida in a pilot project, and the Steelworkers just passed a resolution to use "members only" unions at some of the companies where they have had trouble jumping straight to majority support.
Morris explains in his book that much of the initial union upsurge in the 1930s was based on such minority members-only unions. When US Steel was first unionized, most of the initial contracts were negotiated on behalf of unions who did not represent a majority of employees in US Steel workplaces. Only once those initial contracts were negotiated and the power of the union was demonstrated did a majority of workers then vote to join the union.
So if it worked for US Steel, why not use the same tactic against Wal-Mart? And why not bring unions to any company where a minority of workers are willing to band together to demand better conditions?
Morris blames the general failure of unions to use minority union strategies on a false "conventional wisdom" that descended over the labor law world as elections became the norm during World War II and afterwards, so much of the experience of the earlier history of minority union bargaining was largely forgotten.
He documents that the clear legislative intent of the National Labor Relations Act was to require collective bargaining by companies with minority "members only" unions.
Given that history, the National Labor Relations Board has the power to recognize a duty of companies to bargain with minority unions -- important since that means that unions could be supported in such a campaign without changes in federal labor law. Even if the NLRB refused to recognize such a duty to bargain, Morris makes a persuasive case that the courts would have to recognize the rights of minority unions based on the clear text of the law.
Even if the conservative courts don't require companies to bargain with members-only unions, unions can use strikes, boycotts and the other historic tools of labor to force the companies to voluntarily agree to bargain over work conditions for those employees.
Morris makes a good legal case for what the courts should do in recognizing the rights of minority unions, but in many ways his more powerful case may be to union leaders to revive tactics that helped build the labor movement back in the 1930s.
Nathan Newman is director of Agenda for Justice, an organization dedicated to supporting policy campaigns by progressives across the country. Email nathan@newman.org or see www.nathannewman.org.