Labor—unions and the broad working class of wage workers—hasn’t had a good year in a very long time. Union membership continues its long, slow decline, as does median family income. But if nothing else, 2014 should be a clarifying year in the life of several legal and organizing struggles that will either advance or retard the progress of labor.
The Cold Hard Numbers
The labor year begins in early January when the Bureau of Labor Statistics releases its union-membership numbers. Despite recent high-profile fights over public-sector unionism—teachers and government workers—union density among public employees has stayed remarkably steady, somewhere around 35-36 percent of the public-sector workforce. Private-sector unionism (the iconographic male union members of yore—autoworkers, steelworkers, truckers, coal miners) continues, year by year, to creep lower and lower—last year, density stood at 6.6 percent, probably the lowest since the beginning of the 20th century. The members of those giant mid-century powerhouse unions are no longer the face of labor: Today, union members are far more likely to be women, people of color, and service workers. Think nurse’s aides or hotel housekeepers. The numbers may be more demographically egalitarian these days, but they grow ever smaller. So the first question of 2014 will be: Was 2013 the year that the rate of private-sector unionism ticked up, even a little? If so, in what states and in what sectors of the economy?
The current Supreme Court cannot be viewed as sympathetic either to the rights of individual workers (on say, issues of gender discrimination) or to unions as their institutional representatives. Fifty years ago, a Democratic president could name the General Counsel of the AFL-CIO to the Supreme Court (Arthur Goldberg) without shocking the nation. (This is the difference between 30 percent private-sector union density and 6.6 percent.) Today, unions are lucky if the Court decides not to rule on a critical case on a technicality. That’s what happened in early December with Mulhall v. Unite Here Local 355, a case which might have gutted essential tools for organizing. Instead, at least six justices decided that the decision to hear the case had been “improvidently granted.”
Mulhall highlighted the most effective and least incendiary way for unions to organize workplaces today: through card-check neutrality agreements, where companies agree not to fight union certification, staying neutral rather than opposing the union. Typically, companies will agree to accept signed cards from over 50 percent of workers authorizing the union to act as their collective-bargaining agent rather than have a contested secret-ballot election.
Mulhall, involving a Florida-based casino and the local union seeking to organize its workers, centered around the question of whether these card-check neutrality agreements constitute a form of bribery of union officials. Because, in this unusual reading of a provision designed to prevent companies from corrupting union officials, the company is giving union officers something “of value”—i.e., their neutrality in an organizing fight. The company, in turn, receives a peaceful, stable labor policy, and, in this, case, the union contributed $100,000 to approve a referendum that would have permitted slot machines to be installed at a race track that the casino owns. (Unions often lobby and work on behalf of the interests of their employers.)
Neutrality and card-check agreements have been entered into by companies and unions for decades, but the National Right to Work Foundation (NRTWF), supporting a casino, challenged the union in the 11th Circuit Court. The court rendered an ambiguous opinion, and the union gambled it could get the high court to permanently settle the confusion in favor of neutrality and card check.
The oral arguments seemed to go pretty well—swing vote Anthony Kennedy expressed skepticism of NRTWF’s argument—but who knows what would have happened? The dismissal means that while neutrality and card check may continue to be challenged, unions will also be free to continue to use these common and fairly effective organizing techniques.
However, the Court is scheduled to hear oral arguments in mid-January in another case with enormous potential implications for labor. In Harris v. Quinn (Quinn is the Illinois governor, Pat Quinn), the Court will consider whether the fee (an “agency fee”) for Medicaid-provided home health care can be waived for workers who choose not to join the union. The worker-plaintiff is making a First Amendment claim that the non-members are being compelled to associate and express their political opinions to the state on behalf of SEIU, the union to which they are paying the agency fee.
It would be nice to think that it’s “only fair” that if a worker doesn’t want to join a union, she doesn’t have to pay up—it’s a free country, right? The problem with this kind of folk wisdom is that the workers who choose not to pay union dues, legally permitted in the 24 “right to work” states, still receive all of the benefits that unions make possible—higher wages and benefits like health care—that dues-paying union members receive. They are “free riders,” playing their co-workers who pay dues for suckers. Agency fees are designed to mitigate the free rider problem in the non-right to work states by compelling workers to at least pay for the part of union dues that goes toward bargaining representation.
There is precedent on the side of permitting agency fees on the grounds of equity and labor stability. This Court could well see things differently. Justice Samuel Alito, no friend of unions, noted in a 2012 case, “….free-rider arguments, however, are generally insufficient to overcome First Amendment objections.” If four other justices agree with him (now, who might they be?), the result could affect revenues for, and the organizational integrity of, public-sector workers all over the country.
The UAW vs. the South and Foreign-Owned Auto Companies
Foreign auto companies started off as a tiny blip on the American radar—a few VW bugs and Datsun’s running around during the fifties and sixties. Today, foreign-based auto companies employ 1/3 of all U.S. autoworkers. Fifty-five percent of the “foreign” cars sold in the U.S. are built here, too.
The automotive industry remains an enormous business in the U.S., generating over $750 billion in revenues annually. If the UAW can gain traction with a foreign transplant company, it will not only be able to sustain the wages and benefit packages at the Big Three, but it will increase the union’s economic and political impact dramatically. It will also be a significant advance for unions in the South, the historic sub-nation within the U.S. for lower wages and non-union employment.
The UAW, once the flagship of American unionism and perhaps the most powerful and broadly progressive organization in the country, has never organized a single “transplant”—an auto plant owned by a foreign company. It has lost badly in several places.
But Bob King, the outgoing UAW president, is the smartest, organizing-focused president the union has had in a long time. He has galvanized support from unions around the world to pressure the foreign-based companies. Now it looks like the union has a couple of real chances. One is a long-running campaign in Canton, Tennessee to organize a Nissan plant. Even more promisingly, the union claims to have a majority of workers who have signed union cards at a Volkswagen plant in Chattanooga. Under pressure form the powerful IG Metal union in Germany, Volkswagen will permit the plant to have a German-style works council, an employer-employee group that, in Germany, is complementary to unions. Under U.S. labor law, however, the UAW would have to first unionize the plant, but VW appears not to be fighting hard against this. Still, the union is under pressure from right-wing groups, anti-union workers who are accusing it of labor law violations, and politicians like Senator Bob Corker are doing whatever they can to defeat the drive.
The Low-Wage Retail Struggle
Demonstrations and brief strikes at the nation’s largest employer, Wal-Mart, and in the fast food industry, generated a lot of sympathetic media coverage this year, and continued to keep the issue of low wages and income inequality in the spotlight. Polls consistently show that a minimum wage increase is broadly popular, even among a plurality of Republicans. National and local Democrats, including Barack Obama, seem to have finally figured out that running on raising the minimum wage is good politics—we will see how the issue might impact several key mid term races, including the Kentucky Senate race, where Democrat Alison Lundergan Grimes is driving the issue hard against Mitch McConnell.
Labor is supporting the workplace actions, without formally calling them “organizing drives,” though the longterm goal may well be to make retail labor’s foundation the way mining and manufacturing used to be. But will the number of workers willing to risk their jobs at a Wendy’s franchise or a Wal-Mart increase over the next year? The fast food campaign is inherently decentralized because the big franchisors like McDonalds or Wendy’s can hide behind their franchisees, which are the direct employers of record. More leverage must be applied to the franchisors themselves.The Wal-Mart campaign is more equivalent to Soviet dissidents facing off against the Kremlin—an implacable top down monolith controls the corporate strategy at over 4,000 work sites, with over 1.2 million employees around the country. You never know with these large labor and social justice fights. It took 20 years to organize the steel industry, for example. Likewise, it might require years—maybe decades—of chipping away before the statue of Sam Walton is toppled.
The Wildcard: West Coast Longshoremen
People who most Americans never see or think about—long shore workers at the ten largest ports on both coasts—unload about 90 percent of American imports each year. They are faceless facilitators of the massive global supply chain—from Guangzhou, China, right to your door, courtesy of that nice Mr. Jeff Bezos. And, especially on the West Coast, where 60 percent of imports come in, those anonymous longshoremen can stop that supply chain cold.
The International Longshore and Warehouse Union (ILWU), forged in the militant struggles of the 1930s, is pretty much the last American union left that can have that kind of impact upon the daily operations of capitalism. In 2002, President Bush invoked, under the emergency powers of the Taft Hartley Act, an injunction to bring locked out ILWU members, and the terminal operators and shipping companies back to the negotiating table. Taft Hartley injunctions were specifically designed to limit the economic power of union at a time when several large ones, like the mineworkers, had massive economic power.
Now that list is pretty much down to the ILWU. The union’s current six-year contract expires on July 1, 2014. Circle that date on your calendars. You may not be interested in the ILWU, but the ILWU might be interested in you.