In an excellent review of labor lawyer Thomas Geoghegan’s new book, Chris Maisano writes about the likely demise of the Wagner Act system of collective bargaining in the US and the possibility of replacing it with more mobile, militant forms of organization. Yet an accurate assessment of both the weaknesses and strengths of the current system is necessary if these new forms of organization are going to succeed.
The present system, which emerged out of the Great Depression, was based on the assumption that not just workers but the “public interest” as a whole were served by rising wages and stabilized labor markets. This was to be achieved by eliminating the grievances that led to mass strikes and disruptions of interstate commerce. The preferred remedy was routine collective bargaining between employers and union representatives whom workers freely chose.
Collective bargaining, which had previously been a purely private affair, was now vested with a public purpose. In return for fulfilling this public function, unions under the Wagner Act received federal support for the agency shop and union security.
To legitimate these privileges for private organizations (unions), the early National Labor Relations Board settled on the idea of majority representation — if a majority of workers expressed their desire to represented by a union, then the union could be treated as the legitimate bargaining agent for every worker. It could collect dues from all of them, since the contract it negotiated would apply to everyone equally.
It was supposed to be analogous to political representation, where the representative elected by the majority of voters represents the whole constituency, not just those who voted for her. And it was thought to be stabilizing, since competing unions tended towards wildcat strikes in order to prove their effectiveness to the workers.
But the whole edifice was vulnerable to a moment when routinized collective bargaining was no longer seen as serving the “public interest” — exactly what occurred in the 1970s with the onset of stagflation. Today, however, we are seeing a renewed recognition that inequality is bad for the economy as a whole, and that it will be impossible to reduce it without workers having greater bargaining power.
Yet workers and unions have been unable to generate anything like the scale of workplace disruption necessary to translate this growing consensus into organizational gains. Maisano is surely right that a new spirit of militancy in workplaces and neighborhoods is crucial. But is there really a straight path from the end of majority representation to the new disruption?
It’s true, as Maisano notes, that minority unions are common not just in Europe, but were prevalent in the pre-Wagner Act US labor movement. But in today’s world, can militant minority unions really cause enough shop-floor disruption to compel employers to negotiate in the absence of any legal requirement to do so? Even unions with some track record of success against private employers in recent decades, like UNITE-HERE, rely on comprehensive campaigns, in which building political is crucial in forcing employers to the table (often outside of the NLRB process).
The best unions put their mandatorily collected dues money to work devising and executing comprehensive campaigns of this sort, which require research, political organizing, and sometimes even international solidarity work.
Maisano may be right that the writing is on the wall and we should start figuring out what to do next. But I for one am terrified for the labor movement if the Right succeeds in dismantling what’s left of the Wagner Act regime, including mandatory dues.
Maybe a dramatic contraction of resources would force innovation. But with so few workers having any experience of unionism, and so few organic bases of solidarity in American society comparable to the craft, ethnic, and class solidarities of the years before the 1930s, we should take seriously the possibility that the demise of the Wagner Act might mean the demise of worker organization in America tout court.
If the Wagner Act does come under more direct attack (and there’s every reason to expect that it will), the labor movement will, and should, do everything it can to defend it — not because it will save the 1930s model of collective bargaining (probably nothing can do that) but because the Right doesn’t simply want to attack collective bargaining. It wants to destroy the basic associational and representational rights and the protections against employer retribution that the act guarantees.
Maisano is also right to be critical of Geoghegan’s romance with German labor relations. But in calling German union membership strictly voluntary, he neglects to mention that collective agreements are strictly mandatory for a huge number of employers in Germany.
Most large German employers are subject to sectorally negotiated minimum standards. Though only 18 percent of German workers are union members, some 60 percent are covered by collective agreements of one sort or another. Some 40 percent of German employees have shop-floor representation through works councils.
Both numbers are declining, and this is a major cause for concern. But many more German workers can take it for granted that they will always have some voice in the workplace. It is hard to imagine that we wouldn’t be better off having something similar in America.
On the other hand, just to say that is to appreciate how unlikely it is that American employers would ever agree to such a thing. We should of course remember that the only reason German employers ever did was because the American government made them do so after World War II to neutralize the Left. But then we should pivot and argue that every worker should always have a say over the terms of conditions of her work, period.
Even workers with no experience of unionism agree with this. In a world in which most American workers have never had a say over the terms and conditions of their work, insisting on this point can be a radical and radicalizing act. The fundamental unfairness of the wage relation under capitalism is that the boss has the power to make life and death decisions over your life, but you don’t have that power over his.
One further point. Unionists should be very wary of giving credence to the notion that unions are unpopular because mandatory dues are coercive. The minority unions of the pre-Wagner Act days had their own forms of coercion, like ostracism and sometimes even violence against scabs.
This can be justified only because liberal freedom of contract under conditions of drastically unequal bargaining power is coercive, too. Some people go on strike because they understand that collective struggle is the only way to beat the boss. Others go on strike because they don’t want their friends, family, and neighbors to think that they’re sellouts. Solidarity is not altruism, nor should it be.
It seems romantic to think that eliminating mandatory dues will make unions more popular. Unions are popular when they demonstrate that, through the union, workers achieve a higher level of freedom and self-determination. If mandatory dues are necessary to fund union victories, getting rid of them won’t improve morale in the long term.