Portside

In December 2005 more than 30,000 New York City transit workers walked out over economic issues despite the state of New York’s Taylor Law, which prohibits all public sector strikes. Not only did the workers face the loss of two days’ pay for each day on strike, but a court ordered that the union be fined $1 million per day. Union president Roger Toussaint held firm, likening the strikers to Rosa Parks. “There is a higher calling than the law,” he declared. “That is justice and equality.”

The transit strike exemplified labor civil disobedience at its most effective. The workers were not staging a symbolic event; they brought the city’s transit system to a halt. They claimed their fundamental right to collective action despite a statute that outlawed it. For a precious moment, public attention was riveted on the drama of workers defying a draconian strike ban.

How did national labor leaders react?

AFL-CIO president John Sweeney issued a routine statement of support, while most others did nothing at all. To anybody watching the drama unfold, the message was clear: there is no right to strike, even in the House of Labor.

About a decade earlier in 1996, Stephen Lerner, fresh from a successful campaign to organize Los Angeles janitors, had warned in Boston Review that private sector unions faced an existential crisis: density could soon drop from 10.3 percent to 5 percent if unions did not expand their activity beyond the limits imposed by American law. He called for unions to develop broad organizing strategies—industry-wide and regional—and to engage in civil disobedience. Few embraced these radical strategies. Today private sector union density is about 6.5 percent, not quite as low as Lerner predicted, but down from a high of over 30 percent in the mid-1950s.

Union decline matters. For half a century, it has moved in lock step with the increase in income inequality. According to an International Monetary Fund study of twenty advanced economies, union decline accounted for about half of the increase in net income inequality from 1980 to 2012. In the heyday of American unionism, CEOs made about 25 times the annual compensation of the average worker; today, the multiple is more than 350. Meanwhile, as Thomas Edsell and others have warned for decades, the decline of unions has deprived the Democratic Party of its strongest link to white workers. The overwhelming majority of unions continue to endorse Democratic candidates (including Hillary Clinton in the 2016 election), but with ever-diminishing effect.

Until two decades ago it was possible to blame union decline on backward labor leaders, such as George Meany, who were so steeped in business unionism that they could not see the need to organize broadly, much less to ally with other social movements across lines of race, gender, and immigration status. Since then, however, we have seen continued shrinkage under leaders who are, for the most part, well intentioned and savvy

The problem is structural. National union officials are not well positioned to lead a challenge to corporate power. Institutions with big treasuries and tit-for-tat relations with establishment politicians cannot be expected to undertake risky and polarizing actions. Although leaders might see the need to build working-class power, the immediate incentives all point toward the narrow needs of their particular union’s members. This constraint is rooted in the American system of exclusive representation, which divides workers into thousands of bargaining unit boxes, gives unions property interests in particular boxes, and penalizes unions for doing anything other than defending existing boxes and acquiring new ones.

The prospects for union revival may seem bleaker than ever during the Trump administration, even as the triumph of right-wing populism makes more urgent what was already apparent: the need to build a labor movement that can fight for the interests of the working class in the face of corporate power.

But prospects are not as grim as they appear. Over the past decade, there has been an undeniable shift toward class politics, most visibly evidenced by Occupy Wall Street, the Bernie Sanders campaign, the Fight for Fifteen, and the rise of a Black Lives Matter movement that supports economic justice demands, including the right to organize. Building the labor movement in this period of danger and opportunity will require not only heeding Lerner’s call for a strategic shift and extralegal action; labor must also reclaim the right to strike and confront the deep structural disabilities that impede unions from challenging corporate power.

As Lerner diagnosed twenty years ago, U.S. labor law blocks unions and workers from effective organizing and striking. Then as now, the law’s protections for workers’ rights amount to little more than paper guarantees, while its restrictions are downright deadly. Indeed the Committee on Freedom of Association of the International Labor Organization (ILO) has held that the United States is violating international standards by failing to protect the right to organize, by banning secondary strikes and boycotts across the board, and by allowing employers to permanently replace workers who strike. The ban on secondary strikes is especially debilitating, because it prevents workers who have economic power, such as organized grocery workers, from aiding workers who do not, for example unorganized packing house workers. If the grocery workers support striking packers by refusing to handle food packed by strikebreakers, they are said to be engaging in an illegal secondary strike.

But the law cuts even deeper, deforming workers’ organizations at their inception. As amended by the Taft-Hartley Act of 1947 (tagged by unionists as the “Slave Labor Law”), the National Labor Relations Act (NLRA) confronts workers with a choice between two inadequate forms of organization: statutory “labor organizations,” popularly known as unions, and “others,” for example workers’ centers that organize outside the statutory framework. At first glance, the choice seems obvious. Only unions can demand and engage in collective bargaining. But unions are subject to so many restrictions that some workers’ organizations (such as the Restaurant Opportunities Centers United) are willing to forego collective bargaining in order to avoid them, while others (including the Coalition of Immokalee Workers) consider themselves lucky to be excluded from the NLRA altogether. In the 1960s Cesar Chavez of the United Farm Workers rejected NLRA coverage for farm workers on the ground that it would inscribe “a glowing epitaph on our tombstone.”

The obvious response would be to reform the law. But labor faces a double bind: American workers have never won a significant piece of workers’ rights legislation without first engaging in exactly the kind of strikes and other forms of noncooperation that current labor laws forbid. The Erdman Act of 1898, the Clayton Act of 1914, the Railway Labor Act of 1926, the Norris-LaGuardia Anti-Injunction Act of 1932, the Wagner Act (NLRA) of 1935, and the public sector collective bargaining laws of the 1970s were all preceded by dramatic strikes and mass disobedience.

By comparison, organized labor’s more recent legislative campaigns all failed despite Democratic ascendancy in both houses of Congress and the White House. The Labor Law Reform bill of 1978, the striker replacement bills of the early 1990s, and the Employee Free Choice Act (EFCA) of 2007–9 succumbed to a combination of tepid presidential support (Carter, Clinton, and Obama to labor leaders: “I’m with you; just wait until I’ve spent my political capital on other things”) and the filibuster. Even if enacted, those bills would have provided only modest protections for workers’ rights, well short of the far-reaching changes necessary to reverse union decline. Given the booming influence of money on politics, the skewed representation in the Senate, and the gerrymandered House, we simply cannot expect ordinary politics to produce the reforms that would give unions a fighting chance of revival. Organizing, it seems, must precede legislation.

The Service Employees International Union (SEIU) is the only big union to launch the kind of confrontational campaign urged by Lerner. For the past four years, SEIU has poured money and organizers into the nationwide Fight for Fifteen campaign. With its combination of sectoral organizing and civil disobedience, Fight for Fifteen has scored a number of victories, including the enactment of fifteen-dollar minimum wage laws in several jurisdictions as well as the inclusion of a fifteen-dollar minimum wage plank in the Democratic Party platform. The campaign has gained SEIU few dues-paying union members—which to some critics earns it a failing grade—but it has validated organized labor as a champion of low-wage workers and accelerated the shift toward class politics.

It should come as no surprise that Fight for Fifteen has made more progress on wages than on union growth. Employers have always resisted unionization far more tenaciously than wage increases. They understand that unionism entails a workplace regime shift, while wage increases merely redistribute wealth for a time. Conversely, organized labor has never achieved major growth without prioritizing the rights to organize and strike above economic gain. The Fight for Fifteen and—for that matter—most of the labor movement’s activity, would be far more effective if it were tied to a long-term strategy for winning three core rights for workers: rights to organize, strike, and act in solidarity. Lacking those rights (whether de facto or officially), the movement will be of little use in struggles for social justice or in alliances with other movements. The labor movement of the early twentieth century, which propelled unionism to its historic high, grasped this point. Even the cigar-chomping business unionists of Samuel Gompers’s era seized on opportunities to trumpet the constitutional rights to organize and strike, sometimes in support of open lawbreaking by leftist unions and workers.

In order to win workers’ rights, organized labor should act like a rights movement. History tells us that rights movements—from abolition to women’s suffrage to civil rights—succeed when they claim a few key rights, exercise them at every opportunity, and place them front and center in every phase of movement activity, including organizing, protest, civil disobedience, legislative advocacy, administrative advocacy, and litigation. Not only does this kind of focus help to sway public opinion, but also—perhaps more importantly—it assures adherents and convinces opponents that the movement is serious. No workers contemplating extralegal exercise of labor rights should doubt that the movement will come to their support and that they are participating in a historic struggle for rights that will be carried through to victory.

How can workers claim their rights in defiance of duly enacted laws? Social movements typically answer this kind of question with reference to higher law, especially the Constitution. For example, the civil rights movement defied Jim Crow in the name of the Constitution’s equal protection clause. The labor movement of the early twentieth century held that anti-strike laws established “involuntary servitude” in violation of the Thirteenth Amendment, while anti-picketing and anti-boycott laws transgressed the First Amendment freedoms of free speech and association. Neither movement waited for courts to recognize their rights; they interpreted the Constitution for themselves.

International norms also protect the rights to organize, strike, and act in solidarity. A tremendous advance would be to bring U.S. labor law into compliance. In the meantime workers are fully justified in deploying tactics of peaceful disobedience in the course of organizing, striking, and acting in solidarity.

What would it mean in practice for labor to act like a rights movement? It would not mean that unions ride back to glory on the slogan of workers’ rights. Far more likely, struggles would continue to center on substantive demands, such as a fifteen-dollar minimum wage or a union contract. But a long-term commitment to workers’ rights would entail basic changes not only in tactics, but conceivably in the very definition of unions as government-anointed exclusive representatives.

Peaceful disobedience and political action would be two key components of a rights-centered strategy. When people think of civil disobedience today, most think of symbolic protests or brief disruptions designed to attract public attention. Unions have conducted some important actions of this type, for example during the San Francisco hotel strike of 2010 and the more recent Fight for Fifteen.

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