A De Facto Union

Monday night in Madison, Wisconsin, Sheila Ellis, a union member who works as an office assistant for the state, went knocking on her co-workers' doors. During each visit, Ellis holds up a copy of their union contract. "This no longer exists," she says before asking the worker to "recommit to the union."

But given Governor Scott Walker's anti-union law, which went into effect last month, it's not entirely clear what recommitting to the union means. Under the new law, unions can bargain, but only over wages -- and with the precondition that wages rise no faster than the Consumer Price Index. They have no legal standing to negotiate anything else, and they must re-certify the union in a vote every year. But unlike in a political election or in a typical union election, the union would lose this vote unless a majority of all eligible voters showed up to vote "yes" (by this standard, we would  have been unable to elect a president in 13 of the last 25 elections, and that's only if everyone voted for the same guy).

Instead of operating under the stifling new rules, leaders of the Wisconsin State Employees Union (WSEU) -- the largest district council of the American Federation of State County and Municipal Employees (AFSCME) in the state -- came up with an alternative: forgo legal recognition in Wisconsin altogether. Instead, they'll act as an unrecognized union, fighting for political transformation while working to defend members' rights in the absence of a union-negotiated contract.

"We made a decision that our time and resources are better spent organizing and rebuilding the union," says Marty Beil, executive director of WSEU. "It's making us a stronger union because we're reconnecting with the members."

Acting as a union without government recognition has a long history in the labor movement. American public-sector workers had no legally recognized collective-bargaining rights before Wisconsinites won them in 1959. But many of them had unions. Yale Professor Jennifer Klein, co-author of a forthcoming book on home-care workers, says that in the pre-recognition era, unions learned "to act through politics by influencing elections, by mobilizing behind candidates, and by using public campaigns to raise their issues through either the media or community organizations."

Klein says going without legal recognition could be a powerful move because it "compels the union to get back to really organizing and activating members."

"That's what the union is," she says. "The union is not state certification; the union is all the workers who join and are active in it and build power on the ground."

In Wisconsin, whatever leverage workers have against management will come either through coordinated action or from labor law, which bars discrimination,  requires payment for overtime, and ensures basic safety protections. Some managers may voluntarily honor previous work rules to avoid tension. Others may be tempted to see what they can get away with. Across the country, workers leverage solidarity in many ways: building coalitions with consumers; using politics to reward and punish companies; gathering and marching together into work at the beginning of their shift or into a manager's office on their break.

University of Toledo Professor Joseph Slater, author of Public Workers, says there's evidence that workers who lack "real collective bargaining" rights are in fact more likely to go on strike. That's because those workers have less to lose and fewer alternative ways to pressure their boss. But this may not be the case in Wisconsin: With the same pen stroke that left collective bargaining in tatters, Governor Walker arrogated the authority to declare a state of emergency that would allow administrators to fire any workers accused of taking part in a strike or sick-out. According to Slater, the success of a strike under threat of termination turns on the level of public sympathy for the workers and how difficult it would be for government to replace them. Coordination is also key: It would be nearly impossible, for instance, to replace all the nurses in public hospitals at once.

WSEU's Beil is barred from calling for his members to strike, but he made a general prediction: "If public-sector workers here are pushed into a corner where there's absolutely no way out, no way out of the situation, I believe there will be a natural call for withholding one's labor." Beil did not specify what tactics AFSCME will otherwise use to pressure employers but said members are focused right now on signing up their co-workers and recalling Republicans. In terms of Walker's emergency powers, he says, "We understand where the jaws of the trap lie."

WSEU is unlikely to be the only Wisconsin union to choose going without recognition rather than going through burdensome annual recertifications. Bruce Colburn, vice president of SEIU Healthcare West, says SEIU's 20,000 members in Wisconsin "probably won't do certifications" either. Colburn said within SEIU right now there's a "discussion about what a union can do in this period of time."

On the other hand, John Matthews, president of local union Madison Teachers Inc. (MTI), questioned why other unions would walk away from the recertification process. "I don't know why people don't want to proceed if they've got solid backing from their members," he said. "If you're strong enough, you're going to be stronger as a union" than without recognition.

Adrienne Pagac, co-president of the 3,000-member Teaching Assistants Association, expects her union's membership will make a decision at a meeting July 27. One member recently asked her, "Does a law truly determine whether we get to be a union or not?"

WSEU -- and any other union that turns down the certification process -- is making a gamble. It's giving up the chance to negotiate over wages, but also freeing up its members to spend their time organizing for respect from managers and politicians rather than running through annual elections. That choice should force workers and staff to wrestle with what a union is beyond the bargaining table. Whichever route WSEU took, the only workers paying dues to the union would be the ones willing to sign up. How successful WSEU is in this new era will depend on how much beyond paying dues or signing a card its members are willing to do to participate in the union.

Ellis says the workers she's meeting with -- at work, at home, or when she spots them at the supermarket -- are scared about working without a union contract but furious at Scott Walker. "Probably what resonates the most is people saying, 'he's not going to get us.'" She talks to people who tell her, "For a long time I didn't feel like the union was there, but I feel like I'm part of what's going to change what's happening in Wisconsin." "A lot of people got complacent," she says. "This has been an eye-opener for everybody."

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