Portside

Labor advocates and scholars often feel like we won’t be taken seriously unless we say how awful things are. The more dire our analysis, the more listeners will nod and say it must be right, with labor insiders so self-critical. But our critical thinking shouldn’t devolve into despair.

Workers won’t join a movement that constantly proclaims it is going down the tubes and is going to disappear in ten years. Legislators won’t pass pro-labor laws because they feel sorry for unions. Workers want to see power, and legislators need to feel power. Unions won’t regain it by complaining.

Get a grip; the labor movement is stronger than it looks. We can’t deny or minimize problems and challenges. But we often go too far in decrying unions’ fate. Get a grip; the labor movement is stronger than it looks. A lot of good organizing is going on, and most unions are doing an effective job at the bargaining table. Unions are a force in important regions and industrial sectors, still politically potent, and still bringing new groups of workers into their ranks.

Most headlines cite national “union density” figures—the percentage of union members in the labor force—as evidence of labor’s decline. Latest figures show it at 11.1 percent, down from a high of 30 percent in the 1950s. But the United States is a big country. Union density is in many ways a regional phenomenon with big variations, from 25 percent in New York to 2 percent in North Carolina. In New England, around the Great Lakes, on the West Coast, and other states, union density is substantially higher than the national average.

California has seen a big increase in unions, led largely by health-care employees and Latino workers. As in many areas of American life, California is a harbinger for labor. As the health-care sector continues to grow and policy changes increasingly squeeze health-care workers, the organizing option will grow in importance. As the Latino population grows, so will union membership. And immigration policy shifts that bring millions of undocumented workers out of legal shadows could lead to solid union growth.

Official union density data are also skewed by the millions of workers in the labor force who have no possibility of organizing and collective bargaining. They are self-employed workers, supervisors and managers, independent contractors, public employees in states that prohibit collective bargaining, farmworkers, household domestic workers, labor supply agency employees dispersed among many workplaces, even college professors who are “Yeshiva-ed” (an ungainly reference to the 1980 Supreme Court case ruling that full-time faculty—unlike adjuncts—are “managers” who cannot organize). If we take these tens of millions of workers out of the denominator, the percentage of union-represented workers among those who can organize is substantially greater than the official figure, probably closer to 20 percent.

Collective bargaining is still deeply rooted in transportation, communications, food processing, health care, manufacturing, service, entertainment, hospitality, and many other sectors—even the public sector, notwithstanding recent travails in Wisconsin and elsewhere. Unions are a political force in many states, too. President Barack Obama owed his re-election in part to on-the-ground efforts of trade unionists in Ohio, Pennsylvania, Florida, and other battleground states. Unions are also a fighting force for social policies benefiting all workers, not just union members. They are leading movements to raise the minimum wage, protect pensions, advance health insurance, reform corporate governance, ensure labor protections in trade agreements, and more.

Workers Are Responding

This is not meant to minimize the challenges that unions face. Obviously there is no going back to a Golden Age of stable jobs in huge mass production sites making union organizing easier than it is today. Unions now have to respond to workers’ concerns in a more fluid economic environment.

The labor movement’s embrace of non-traditional sectors of the workforce augurs well for such a change. New forms of “alt-union” collective action are surely an exciting and important development. We need a scorecard to tell the players: National Day Laborers’ Organizing Network (NDLON), National Domestic Workers Alliance (NDWA), National Guestworkers Alliance (NGA), Food Chain Workers Alliance (FCWA), United Workers Congress (UWC), and local and regionally based groups like Restaurant Opportunities Centers (ROCs) in many cities, Coalition of Immokalee Workers (CIW), New Orleans Workers’ Center for Racial Justice (NOWCRJ), Southwest Workers Union and more.

But let’s be frank: Even with great people doing great work, converting these movements into sustainable, self-financing membership-based organizations is still a work in progress. In most cases, the established labor movement is a major source of financial, logistical, and organizing support for these new formations. Trade unions and their 15 million members are still an indispensable base for these organizations and for others that will emerge in years ahead.

Facts on the ground belie a common journalistic refrain that workers are not interested in unions any more. Probably the biggest new organizing group today is that of adjunct professors at colleges and universities. Tens of thousands of them have won organizing drives in the past couple of years, and hundreds of thousands more are ripe for replicating those successes. The unions’ biggest problem, in fact, is getting enough organizers into the field to meet demand and following up with enough experienced negotiators to help new academic bargaining units get good first contracts.

After earlier election losses in 2009 and 2011, over 2500 pilots at JetBlue turned around and voted by a 3-to-1 majority in favor of union representation in a 2014 ballot. In October, the International Association of Machinists and Aerospace Workers won an election among 1,000 employees of the engineering, design, and construction company URS. This came shortly after winning an election among another thousand workers employed by L-3 Communications, like URS a major federal contractor. Both victories came in the heart of anti-union Texas.

In January 2015, the International Brotherhood of Teamsters made a vital breakthrough among port-based truck drivers in Los Angeles and Long Beach. Backed by legal decisions on drivers’ eligibility for overtime pay, the union convinced Shippers Transport Express to convert its 100 drivers from independent contractor status to that of company employees. Given the chance, workers voted 80 percent in favor of union representation. And behind them are tens of thousands more port truck drivers who might go the same route.

Their numbers are relatively small, but the Transport Workers Union has had a string of election wins among hundreds of bike share company employees in New York, Boston, Chicago, and Washington, D.C., in recent months. Their success signals good organizing prospects in the new sharing economy. Look out Uber, here we come.

Other wins in recent years reflect the same organizing impulse among workers. In the last five years, more than 30,000 school bus drivers around the country have gained bargaining rights in First Student, the nation’s biggest private school bus contractor. Responding to an innovative campaign invoking the company’s commitments to international labor standards, the U.K.-based multinational firm pledged non-interference and no reprisals in employees’ organizing efforts, and compelled local managers to behave accordingly.

In Tar Heel, North Carolina, 5,000 workers at the world’s biggest hog-slaughtering factory chose to be represented by United Food and Commercial Workers International Union in an election overseen by the National Labor Relations Board (NLRB) at Smithfield Foods in 2008, after more than a decade of seeing their organizing drives smashed by unfair labor practices. A comprehensive campaign involving civil rights, human rights, religious and consumer allies backed up workers’ own determination to have their union.

In 2011, 300 workers at an IKEA supplier factory in Virginia, another anti-union stronghold, won an NLRB election by a 3-1 margin after the Machinists union built an international support alliance and pressured IKEA’s top officials in Sweden to halt their U.S. management’s American-style anti-union campaign. Later hundreds of workers in IKEA distribution centers in other states joined them.

Careful What We Wish For

We must be careful not to be so frustrated with problems and so enamored of novelty that we undermine hard-won foundations in our labor law system. It often is more interesting to do pioneering work than plow old ground, so we tend to focus on non-standard “fissured” employment and innovative legal and policy responses.

Understanding and coming to grips with these trends is surely important. But at the same time, we should remember that the vast majority of American workers still report to work for a single employer at their usual worksite for a regularly scheduled workweek. If they are going to join unions, for many it will be through a National Labor Relations Board election under the National Labor Relations Act (NLRA).

Let’s talk about how to restore the Act’s effectiveness rather than disdaining it. The NLRA put labor law on solid pillars: the right to organize and bargain, the protection of these rights by defining and prohibiting unfair labor practices, trade union independence from management, exclusive representation, employers’ duty to bargain, the right to strike and other core features. Let’s talk about how to restore the Act’s effectiveness rather than disdaining it.

Pushing for the Employee Free Choice Act, designed to make it easier for workers to organize in their workplaces through a system known as “card check,” was a strategic error. (Card check would allow workers to simply check off their preference on a card regarding whether or not to call an election for union representation.) Labor insiders understand the problem with the NLRB system, but it was impossible to sway public opinion to favor card-check certification over secret ballot elections, no matter how chilling the horror stories that advocates could muster, and no matter how clearly they explained why labor board elections are not analogous to political elections. The aura of a secret-ballot election gave the employer side an undeserved but unshakeable advantage in the hearts-and-minds battle.

Even though we likely cannot make card-check recognition mandatory, unions and public policy still should nourish it as a means of worker organizing—but not to the point of scorning labor board elections. The NLRA is not going to go away, and a labor board election is not a lost cause.

Unions Can Win NLRB Elections: Here’s How

For several years, unions have won a majority of labor board elections. In the first half of 2014 (the latest official figures), unions won 70 percent of elections. The Machinists had an unprecedented 90 percent win rate. The Smithfield Foods, First Student, IKEA, and adjunct professor organizing victories noted above all came via labor board elections.

Unions can win NLRB elections. The key is making them ratification votes for a union that workers have already formed and put into action, not a speculative vote to see if they have a union or not. This means that unions have to develop effective organizers, usually with a healthy mix of activists from the ranks and university-trained activists, and get them out of offices and into the field. These organizers in turn have to identify and cultivate leaders who emerge in the organizing process, then build an internal committee that makes the union visible and active at work to show hesitant employees that they’ll have strong leadership.

In the end, unions don’t organize workers. Even organizers don’t organize workers. Workers organize themselves, and organizing drives are won or lost on the person-to-person relationships among employees inside the workplace. The organizers’ job is to nurture that process.

In the period leading up to an NLRB election, unions should make more use of “Section 7 rights” at the workplace. Section 7 of the NLRA protects workers from management retaliation because of actions “for mutual aid or protection.” Employees can engage in collective actions such as lunchtime meetings, presenting group-based demands to managers, even brief work stoppages to create a “we are the union” spirit.

Building alliances is equally vital for union organizing. Workers cannot achieve their goals alone, even with high degrees of union strength and solidarity, in a political and economic system stacked against them. It’s also important now to develop a network of community support and pressure that takes in human rights, civil rights, immigrant rights, religious, feminist, and other allied forces in support of organizing efforts. And increasingly, with the growing presence of foreign-based multinational companies operating in the United States, unions and workers have to build international coalitions of labor rights advocates.

A Modest Reform Agenda

Instead of the political impossibility of radically supplanting the NLRA (also known as the Wagner Act), a tight package of administrative reforms within the Act’s existing framework is more feasible. They can also lead to real gains for unions.

We can start with demanding a General Counsel and an NLRB that consistently enforce workers’ rights under existing law. They can make expanded use of injunctions to get fired workers quickly back on the job and expanded use of bargaining orders forcing recognition and bargaining when employers’ intimidation undermines unions’ majority status. They can expand the concept of the "bargaining unit" to encompass the rights and interests of contingent workers, temp-agency workers, contract workers, dependent contractors and others involved in new occupations and industries. They can revise election rules to prevent employers’ strategic delaying tactics. In fact, the General Counsel and the NLRB in recent months have taken significant steps in this direction.

When we have a more favorable balance of forces in Congress, proposals for legislative reforms should emphasize fairness for workers, rather than payoffs to unions. They might include:

Equal opportunity for workers to hear from union as well as management representatives inside the workplace, and when employers force workers into captive-audience meetings at the workplace, letting union representatives meet workers under equivalent circumstances. Tougher remedies requiring employers to give illegally fired workers full back pay regardless of interim earnings (which is all that the NLRA requires employers to pay), and substantial fines and debarment from government contracts for repeat labor law violators. First-contract arbitration as a remedy for employers bad-faith bargaining (not just when no contract is reached in good faith bargaining—that was an overreach in EFCA). Not Dead Yet

We hear regular reports of the death of the labor movement. Usually they contain some variation of the argument that unions were needed in the bad old days, but modern, enlightened management and the need for economic competitiveness make them obsolete.

In 1932, the president of the American Economic Association proclaimed that unions were finished. Membership had dropped steeply from a hight point hit just after the First World War. He argued that human resources management and the emergence of new technologies requiring higher-skilled workers made unions unnecessary, and predicted the disappearance of unions, except in a few archaic pockets, in the ensuing 10 to 15 years.

Within the next 15 years, the size of the labor movement tripled. History does not repeat itself, and conditions now are not the same as those that spurred the great organizing drives of the 1930s and '40s. Still, American workers have shown deep resourcefulness over long cycles of trade union growth, decline and regeneration. The importance of freedom of association, the impulse to stick together, and the need for "somebody to back me up" in the face of employer power never go away. Trade union advocates should keep that in mind when we talk about the future of the labor movement.

Lance Compa teaches labor law at Cornell University’s School of Industrial & Labor Relations. Previously, he worked many years as a union organizer and negotiator for the United Electrical Workers (UE) and the Newspaper Guild.