WORKS DISCUSSED IN THIS ESSAY
- Commission on the Future of Worker-Management Relations. (Dunlop Commission)
- Volume I: Fact-Finding;
- Volume II: Report and Recommendations
- (Government Printing Office, 1994)
All my labor friends got to testify before the Dunlop Commission, so it's natural that I'd be jealous and inclined to pan it. But as I read the report, I was impressed by how fine, how readable a document it is. The compromise the authors try to broker is also ingenious, with its trade-offs intended to persuade business and the Republicans to let the unions come back. Maybe the Wagner Act, our existing labor law, could really have worked. It is depressing to think that with a little wrench in the legal gears, we might not have had to lose our unions, our high wages, the whole promise of American working life.
Alas, the regime of labor relations has crashed. For several decades, we have been trying to revive it. Maybe it's time to stop. The Dunlop Report is surely the last gasp. I felt the gasping, the strain on every page, to come up with a reason why business, why the Republicans, should bring the unions back. I don't want to chide. The authors, I am sure, know this too. I could almost hear them whispering, "We know how hopeless this is."
I kept trying to figure out who this Dunlop Report was for. Senator Arlen Spector? Or John Chafee? Two or three Republican swing votes, who might have voted for labor law reform in the last Congress? It's too late now--too late for at least ten or more years. By then, I hate to think what the country will look like. Wages have dropped, and dropped, 1 percent a year, drip, drip. Maybe wages will stop falling. But it seems far more likely that we are just midpoint in the fall. The percent of union membership will keep dropping, too. By the time we get to the Wagner Act again, there may be nothing left to save.
In 1978 (when Carter failed to win stronger protections for the right to unionize) and in 1994 (when Clinton failed), the idea was that somehow labor and business would cut a deal. But now the problem is:
(1) There's no deal to be cut, for Labor has nothing to offer, and (2) There isn't even much of a Labor to cut a deal with.
The image, evidently, was of John Dunlop on the phone, like in the old days: "Charley, I've talked to Bob... yeah, right... Can you talk to Harry? What does he say? Hm hm, hmm... Well goddamit can't we talk?" A subtitle for the report might have been: "When do we go to the phones?" But if we picked them up now, we'd only get a dial tone. The CEOs have everything they want. John Dunlop is over 80, and Lane Kirkland spends election night in the company of William Safire. It's hard to believe it's over.
When I was 20 years old, I stood as a child in the office of John Dunlop. I was to interview him for the college paper. It was not easy, since calls from "Charley," from "Bob," kept coming in. And as he glowered at me, I felt the shame, deep shame, of being a '60s flower child, running around like a little boy saying "Stop the war, Stop the war!" I fumbled and pulled out my summer union card, "Metal Polishers, Platers, and Buffers." "I'm not like the other kids," I wanted to say. But he kept growling, taking calls; I knew what he thought of me, of all of us. Labor! Some damn kid, whose idea of labor was to read a book by E.P. Thompson. Well... no wonder I didn't get to testify.
The Dunlop Commission was pronounced dead on appointment by the major business organizations. What did the Dunlop-types really think they were going to say to business? "Well," they might argue, "give labor the right to organize, and it'll get you boys out of all these pesky civil rights suits over Race, Sex, Age.... You don't want those, do you?"
But this is fantasy. It's just not a big enough nuisance for Business to bring Labor back. These individual suits are like flies, easily swatted away, and very minor, compared to the problems of dealing with a union, or just plain-old paying higher wages. "Well," they might also argue, "what about work teams? Don't you boys want to set up work teams and empower your workers? Sure you do. Well, we don't think you can because of the Wagner Act, and to change it, you've got to come to us, and make a deal. Look, we'll repeal Section 8(a)(2) of the Wagner Act, so you can do this.... "
Someday someone should do a Ph.D. on the academic euphoria that broke out over the Electromation case and Sec. 8(a)(2). In Electromation, a rag-tag group of women making $6 an hour started screaming when their benefits were cut. Afraid they might form a union, Electromation set up a council. But then they found one of the council members was trying to form a union, so they kicked her off.
Sec. 8(a)(2) prohibits company unions. The NLRB and the courts found the Electromation Corporation in violation. For a moment, the Electromation ruling seemed to prohibit the whole high-performance work game, and thus to give Labor a new bargaining gambit: You stop harassing unions, and we'll support overturning the Electromation case, so you can have your work teams and employee participation back. It became an academic cottage industry.
But there are still work teams at Saturn and elsewhere. As a labor lawyer, I don't have Section 8(a)(2) cases. I don't know lawyers who do. No one ever heard of Electromation until, well, Electromation. Does anyone even at Harvard think that business wants to set up councils, even ones they pick, to sit around and discuss wages? The beauty of the present moment, for business, is that no one has permission to discuss wages. So why would business want to bring it up?
As a friend said, "In their wildest dreams, business couldn't have labor law as good as they have it now." On paper people have the right, even think they have the right to organize. But if they exercise it, they'll be fired.
How can we convince Big Business to bring back Labor? We can't even convince the Democrats. Once in 1992, I heard Governor Clinton speak at the Fairmount Hotel. It was the period he was talking, like a Presbyterian, about a "New Covenant." The Governor kept saying: "And so, tonight, I'm calling for a New Covenant...and it's got to be a covenant with...Business...and with...Government...and with..."
I turned to my companion and said, "My God, he's going to say 'Labor.'" But he stopped, bit his lip, looked out at us...as if he were circling the field, trying to find a place to land. Then he went off for a while, but he came back to the idea a little later:
"And so, that's why tonight I'm calling for a New Covenant... and this has to be a covenant with...Business, and with... Government, and with..."
He stopped. "Come on, Governor," I thought, because I kind of liked the guy. "Say it, just say the word... 'Labor.'"
I felt like a controller trying to radio him in. But he just circled one more time, and sadly, I thought, just flew away.
The Dunlop Commission suffers from something of the same faulty radar. Though plainly made up of appointees who think unions are good for society, the commission stops just short of explicitly arguing that the whole point is to bring back labor. The Dunlop Report is very good on the fall of wages. But then comes a kind of gap, or almost aphasia. What do we do about this? Are we to assume that unions cause wages to rise? If that's true, shouldn't we call for the return of unions? The report is, well, vague about this. Often it seems to say, instead, that wages will rise when we all work together and be more cooperative? More cooperative? What more do people have to do? In 90 percent of the private sector, there's literally no union, no employee voice at all. There's cooperation for you! Indeed, the Rogers-Freeman survey on worker attitudes (an appendix to the Dunlop Report) suggests that workers are almost craven. Most workers don't want to pick a fight with the Boss. Most don't even blame the boss for cutting their wages.
I started fuming as I read the survey. Last November, it hurt me to see all the Angry White Males, in pain from falling wages, go to the polls and elect people who will cut their wages even further. They don't blame the Boss. As their wages drop, and drop, they call up talk radio and scream about Hillary Clinton. Why? Because the Boss, who's cutting their wages, can hit back. Hillary Clinton can't. She's in D.C., and can't hear them.
In no other country have wages dropped, and dropped, for fifteen years... while people have said nothing. This doesn't happen in Germany. Or Belgium. Or even Canada. The Rogers-Freeman survey should be a call to arms. After all, more than 30 percent of the nonunion workforce say they would like to be in unions. Thirty percent! How did they even hear about unions? Our side is up to 30 percent and no one has even said a word. What if someone actually raised the idea on TV?
WHAT TO SAY
Years ago, in South Chicago, down by the mills, where there are a lot of White Males, the union politicians had a way of getting to them. The trick, said Ed Sadlowski, the steelworker organizer, was to get a lock on what, in politics, were the Three Magic Words:
"You're Being Robbed."
For twenty years, my whole adult life, the Republicans have had a lock on the Three Magic Words: "You're Being Robbed. It's Government, it's taxes...."
And what's our response? We, the Democrats, like to blame the workers for falling wages. They don't have skills, etc. How's that for a political message? When we talk about job training, what comes out to most people is: "It's too late for you, pal. Your life is over." Or "You have to work harder." Or "If you aren't making enough, it's your own fault." Every time Clinton-types talk about creating new high-wage jobs, rather than defending wages in existing ones, I think the Democrats lose another 500,000 votes.
And why do we go on and on about sending more people to college? According to the Bureau of Labor Statistics, 25 percent of college graduates are already stuck, forever, in noncollege jobs. (And by noncollege jobs, the BLS means selling ties at Marshall Field's.) What profit is there in jamming even more kids into college, except to teach them to curse us? What kind of political strategy is this?
Democrats are reluctant to blame the boss, or to practice "class-based politics." It's not our role, as Democrats, to say, "You're Being Robbed!" But why not? Perot says it. In many ways Perot is like a John L. Lewis. They were both Republicans. And demagogues. But so what? During the debates in 1992, when I closed my eyes and asked myself, "Which candidate is representing labor in this debate?" I usually had to tell myself it was Perot. When Perot talks about wages, he doesn't talk about job training, or new jobs. He talks about raising wages on the jobs people already have.
"The American worker is the most productive in the world, and yet he ranks thirteenth in pay!" Never mind that it's a misstatement. The point is, what kind of message do people get here? That we need job training? Or that we should go back to college? Or is it maybe that we should raise the wages on the jobs people already have?
At least, as Democrats, we can give people permission to talk. In the U.S., apparently, the only wages we can debate are the wages of ballplayers. In Germany, by contrast, while our ballplayers were striking, the I.G. Metall union had a four- or five-minute strike, and got a wage increase (in a recession) of 4 percent. An increase! Wage workers in the U.S. haven't had an increase in 15 years. And everyone in Germany discussed it, and had a stake in it, and had, in a sense, permission to talk about it. Whatever I.G. Metall got, of course, everyone got. I know a German in the foreign ministry who could figure out his own wage increase, just based on what happened with I.G. Metall.
How do we get such a conversation going here? In my own personal, private Dunlop Report to Democrats, I would say, first: We have to get on TV. In a way, this seems even harder than labor law Reform. My brother's brother-in-law Joe Costello, who worked for Jerry Brown and came up with the idea of the "800" number, told me: "Liberals hate to go on TV. They want to write op-ed pieces for the New York Times." He laughed. I didn't dare say I was writing a piece for The American Prospect.
It doesn't matter, in the post-Dunlop era, whether Labor is "dead." The real problem is, it's not on TV. And if you're not on TV, you don't even exist. And to get on TV, you have to say, "You're Being Robbed!" We don't know how to say these words. We giggle, get nervous, start fumbling for the New York Times. If we accepted this challenge of getting on TV, we'd learn how to talk to real people.
WHAT TO DO
We also have to give people a standard to know if they're being Robbed. Imagine the Democratic White House, as in Roosevelt's day, as the Big Bargaining Agent.
Here are a few things to try:
Bring Back the Blue Eagle. Since we can't do much with the Second New Deal (the Wagner Act is dead), let's try the first New Deal. By that I mean, revive the Blue Eagle--the National Recovery Act (NRA). It was the NRA that helped create the climate for bringing back labor.
In those days, the idea was to raise prices and wages. So the NRA set up councils, industry by industry, to say what wages should be. Indeed, when Frankfurter, Tugwell, and all the New Dealers came to D.C., the first, second, third idea they all shared was, somehow, to get wages up. Now of course we can't have these councils. But we could set guidelines, industry by industry, and ask:
(1) How much has productivity risen? (2) How much has the median wage in that industry risen? Has it kept pace? Why not? (3) Should people be getting more?
Before 1973, wages kept pace with productivity. Then they rose by less than half. Then by less than a third. Now, by even less than that. Like any lawyer before a jury, like the O.J. lawyers before the trial, we have to bring the public along, get them nodding, give them permission to ponder the question: "Yes, I see, this is how I'm being robbed... it's not really my taxes, is it?"
Use the Power of Government Contracts. As buyer-in-chief, the president can ask each supplier:
(1) Do you try to improve productivity? (2) Do you let your workers share in the higher gain?
We have to be careful about imposing conditions. They must improve "economy" and "efficiency." But doesn't it improve economy and efficiency in the meaning of the procurement laws if vendors do these things? The president can say, plausibly, "Just to let the working American 'participate,' get his share... will make his company more productive, still."
Some people think so. It's a rational belief. And it may get people thinking, "Hey, am I being robbed?" And that the Democratic president cares that I'm being robbed.
Use NAFTA. There are labor side accords that say we must meet basic "labor norms." Wage increases must roughly reflect productivity gains. If not, we aren't living up to the agreement. We are also obligated to enforce our own laws. Under federal labor law, such as the Wagner Act and Taft-Hartley, courts are supposed to declare a "common law," that is, fill in the gaps, based on their reading of federal labor policy.
The president should underscore those norms: "I want to favor companies that bargain based on productivity." Slowly, wake people up. Get them nodding, "Yes, this is something we should be discussing."
Tell People What Their Wages Are. I once asked the Bureau of Labor Statistics how they found out what companies were paying. "Oh," a staffer said. "We ask the companies. This is confidential."
But why confidential? Why not let people at those companies know? Why not let the Labor Depart ment collect as much as it can on specific companies, and just put it "on line"? Let hackers tap in. Let them do comparisons with other companies.
In the 1950s, when labor was at flood tide, we knew what each other would make. We just read the collective bargaining agreements. Clerk II... $15,000. Hamburger Helper IV... $19,000. Now it's as if an iron curtain has descended over our wages. Why not lift it? What harm if we find out what a Clerk II at Dupont actually makes? And more important, what he or she should make?
As some economists now argue, there really is no market price for labor. What astonishes Europeans is how people with the same job, same experience, even in roughly the same part of the U.S. (teachers are a good example), can be up to $30,000 to $40,000 apart in salary! Parade magazine has this contest, "What do they make?"--because no one in this country has a clue.
Call in the Allies. Shouldn't our trading partners be concerned about the collapse of our wages? Why don't they have a G-7 meeting to discuss it?
After all, in 1991, Helmut Kohl tried to push a Social Charter on John Major. The charter said that employees had a right to be consulted about basic decisions affecting the firm. Sometimes I wish the U.S. could sign on to the Treaty of Maastricht.
But of course we couldn't. We'd never meet the conditions for the single currency. Not the way the dollar has been collapsing.
Why should the G-7 and others be concerned about our wages? Simple. How can there be any stable dollar, global security, harmonious world trade, as long as American wages collapse?
At Brussels, when I visited, a German told me how German-type labor law, codetermination, was really something they would like to see in other countries. "I mean, we're just saying, 'It worked for us.'"
"You want to impose your system on other countries?"
He gasped. I laughed: "I'm a labor lawyer, I don't mind."
As he pointed out, we accept democracies are stabler the more that people can vote and participate. Isn't it also true that whole societies are stabler the more that people can "vote," and "participate," at their place of work?
In Germany in the last few years, everything has happened. End of the Cold War. The absorption of East Germany. The massive opening up of the East. And it's been so dull, politically, you could almost fall asleep. In the U.S., nothing has happened. Almost literally. And the country has almost fallen apart.
Bash Labor. In the Post, or Times, I read how Clinton balked at raising the minimum wage, because he did not want to seem a "captive" of Big Labor.
Huh? No one has seen or heard of Labor since the mid-1980s. And historical memory in the country does not go back that far.
But if Clinton Democrats really worry about this, I have an idea: Start enforcing the Landrum-Griffin Act, which no one has ever tried. Not just enforcing, but setting out new rules that say, in effect, all officers will run for election. All of them. A section already states there should be provision in every union for removing officers by referendum. All unions must allow members to vote whether or not they want to have rank-and-file elections, as the Mineworkers and Teamsters now do. Take a page from John L. Lewis: One way to get the country excited about Big Labor is, from time to time, to blast it.
The point is to get a conversation going. Give out Blue Eagles. Pick on specific companies.
In a sense, this is just jawboning. But it's also a way of applying what economists would call "expectations" theory--to get people to "expect" or even demand that their wages should go up. Some will say, "Won't these be piddling increases?" You bet. We aren't going to shoot wages through the roof. Just raise them a little, or at least, for God's sake, stop the fall. And make it an issue.
All of these steps the President could do now. But are they enough? No. I feel foolish after all I said, but I really think we need a law.
I'm not thinking of a Dunlop-type tinkering. My proposal is very simple. Amend the Civil Rights Act of 1991, and add, as a civil right, the right to join a union without being fired.
That would give would-be union members the remedies--the same ones--that minority plaintiffs, women, and the handicapped have. Just proposing this would help Labor come back.
As a labor lawyer, I'd love to break into the Civil Rights Act... look at the remedies we'd get:
- punitive damages (capped, I'm proud to say);
- jury trials (get them weeping);
- immediate temporary restraining orders (no four-year waits for the court of appeals);
- legal fees (need I say more?).
But why would civil rights law work for unions, when civil rights laws fail to work for others? In fact, they do work. In some ways, they are very effective at changing corporate culture. No one says, "We're firing you, Bob, because you're getting older." No one tries to "send a message." But when union supporters are fired, sometimes in droves, the Boss is trying to send a message. The problem of proof is easier. If you aren't sending a message, that is, trying to influence a union election, why are you doing it?
Besides, and most important, all the blocs in the Democratic Party would at least "get it." People watching TV would "get it."
Just to have a debate that people could understand would be to break the whole subject of the hotel rooms, and universities, and phone calls. We could talk about it on TV! In public! We might even get Bill Clinton or Al Gore to talk about it. When Gore announced in Bal Harbour that the administration would debar union-busting firms from government contracts, he did it behind closed doors! The press had to guess what he was saying.
How could Bill Clinton speak in favor of striker replacement? How can the president look like he's in favor of people going on strike? But it would be different if he could talk about a civil right, in language that we all, as Americans, could understand. "Heck," the president could say, "I don't care if you join a union or not. I just think in this country we can say whatever we think."
Now that's the kind of labor law he could even argue in the South. Since we can't cut a deal in this post-Dunlop era, let's only try reform we can talk about on TV. In the southern TV market, a Democrat might call it "the Angry White Male Attitude Adjustment Act," and to give it a little erotic charge, talk about as a "family wage." And on this subject, it's not the class-based appeal that scares Republicans: it's the gender subcontext. I know I should not say this... but isn't it a point of pride in some of the UAW locals around Detroit that the members' wives don't have to work? Anyway, it's not a sexist argument, since a single-wage or high-wage economy can be androgynous (as in the case of Sweden). We can argue it to house-husbands in Concord, Massachusetts, as well as to rednecks--that is, people of color-- in Baton Rouge.
Meanwhile, by making it a "civil right," we get people thinking differently. We disconnect the "labor" issue from "labor."
Which is why "labor" hates it. They don't want "reform" from, as we say in Chicago, "nobody nobody sent." Who are these lawyers who would bring the civil rights cases? Do we know them? Are we paying them?
When I raise the idea of labor as a civil right, a Title VII issue, some of the labor people I know start shouting: "Don't talk nonsense! You don't know what's going on. We've got this all set up in the next Congress." They pat you on the head and say, "Go testify before the Dunlop Commission."
The best part of a Title VII approach is that it pulls new people into organizing. So what if Big Labor loses control over it? And the idea of a damage action is not such a departure from existing law. Employers right now can bring damage actions, get restraining orders when the rare union plays hardball. This bill, in effect, would bring labor law into balance.
No doubt the liberals who are the fiercest critics of liberalism must be groaning, "Another civil rights law? We Americans are too 'rights oriented,' and we already have race, and sex, and age and..."
But aren't we so rights oriented because we don't have any rights? People here can be fired for any reason, at any time. They don't need a Title VII in Holland... they already have laws against unjust dismissal of any kind, as we do not. Unless we shoehorn ourselves into a group, we don't have any rights at all. If we wanted to end this sickness of liberalism, we'd simply have liberalism for everyone. We just have to get people nodding, "Maybe labor law belongs to me."
But isn't there any kind of deal worth cutting, Dunlop-style? What do you give the CEO who has everything?
Apart from "labor law," there is another, longer list of things that Republicans and Rich People would love to have. While the Dunlop-types cannot consider these sort of trade-offs, because they are far beyond the workplace, you and I can: capital gains; assault weapons; a flat tax; a balanced budget amendment...
Don't gasp. I haven't lost my mind. I don't say we give them up in unadulterated form, or in exchange for crumbs. But if wages keep falling, if the U.S. gets nastier, more volatile, if we try to go on as a "left" with no labor movement, we could end up losing these things anyway, lose all our bargaining chips, and have nothing in return.
Without labor, or something that a Clinton can sign a "Covenant" with, that can do the phone-banking for our side in the years ahead, that can give wage and salaried workers a reason to vote for liberals, we might as well give up now. So what is it you would be willing to trade? For me, it's capital gains. Easily. I think I would balk at the balanced budget amendment.
This would be a form of "Soaking the Rich"--in the sense of dousing them with champagne. Let's shower them with tax cuts, assault weapons, whatever, in exchange for something in return. Bob Dole, for example, would fight the minimum wage rise until Hell froze over... unless, of course, we're offering capital gains.
Indeed, all sides, even the Bob Dole Right, could stand a little more class-based politics, a little more Dunlop-type rationality. "The great thing about class-based politics," a professor once told me in college long ago, "is that it's rational." Instead of the Politics of Meaning, we talk $1.25. That's what Dunlop, to his everlasting glory, has done his entire life.
The purpose of such politics is not to heat the country up, but to calm it way down. Get back to the America of Dwight Eisenhower, when labor was at high tide and there was social peace. But to get back to that Era of Good Feelings, first we have to remind people, "You're Being Robbed."