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How Unions Can Lay the Ground for the Next Upsurge

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I started in the labor movement in the mid-90s, when the fall in union density from 23 percent of the workforce in 1980 to 15 percent in 1994 had created a crisis at the top. In response, the â€śNew Voices” slate led by the Service Employees’ John Sweeney defeated heir apparent Thomas Donahue in the first contested election in AFL-CIO history.

The incoming team were evangelists for organizing. They argued for applying to the entire labor movement the militant tactics of campaigns like the Service Employees’ (SEIU’s) Justice for Janitors and the organizing methodology popularized by the AFL-CIO’s Organizing Institute.

The idea that unions needed to organize new shops in order to survive became universally accepted. Several large campaigns were launched; unions hired hundreds of recent college graduates to staff them, and codified a specific methodology for organizing.

Many of these tactics (and certainly their essence) had been around since the dawn of the labor movement, but in the 1990s they were polished, distilled, and disseminated widely among a growing corps of “professional” union organizers.

This detailed and methodical practice—the structured organizing conversation, house visits, hard inoculation, workplace mapping, careful assessments of support with numerical ranking of workers, building large and representative organizing committees—has proven incredibly effective (when properly applied) in uniting workplace majorities to win a union in the face of intense employer opposition.

UNIONS GROW IN SPURTS

It seemed to many (or at least to me) that training more people in good organizing tactics would only lead to positive outcomes for unions. And it did, to a degree. Membership has grown slightly in a few unions with more aggressive organizing programs, particularly in health care.

But we’ve seen no overall growth in union density, the percentage of the labor force that belongs to a union—today just one in 10 workers overall, and in the private sector, 6.2 percent.

The problem is that even great tactics can’t overcome the social, political, and economic forces of capitalism, which combine to make organizing a gigantic challenge. In a free-market system, employers are under intense competitive pressure to resist workers’ demands—there’s no generous “high road” for them to take; they won’t willingly give in to a union drive. And employers are compelled to come together as a class to exert power over the government, passing laws and using the courts to challenge unions on all fronts.

In addition, organizing tactics are labor-intensive. In a model where paid staff do the lion’s share, they are expensive. And they were crafted to do something that labor history shows has rarely if ever been done: grow unions incrementally, outside of an upsurge.

Rather, as shown by authors like Dan Clawson in his 2003 book The Next Upsurge, unions tend to grow in spurts, as part of working-class uprisings that pose a deep challenge to the powers that be.

The upsurges in the private sector from 1934 to 1939, when the CIO organized industry-wide, with sitdowns when necessary, and the AFL tried to catch up, and in the public sector from 1962 to 1972, when a wave of illegal strikes established the right to bargain, were rooted in militant worker action. The system began to lose legitimacy and workers got a sense of their collective power. Similar dynamics played out during the 1897-1904 upsurge in the U.S., 1910-1914 and 1933-1940 in the U.K., in France 1935-1937, in Italy in the early 1970s, in Brazil in 1978-1979, in South Africa 1982-1985, and in Korea in 1987.

During an upsurge, new possibilities emerge: what was inconceivable yesterday is suddenly possible today.

As the system seeks to stabilize in response, reforms become possible that allow unions to grow and consolidate. For a period after the upsurge, union membership may stay constant or even grow. Inevitably, though, at some point post-upsurge, membership begins to decline as employers resume their attacks.

Organizing between upsurges can produce incremental growth for some unions at some points, or at least slow the decline. But it doesn’t lead to substantial increases in overall union density.

SEIU, for example, grew by 183 percent during the 1934-1939 upsurge. In contrast, it grew by around 8 percent from 2009 to 2019 despite spending a large portion of its budget on organizing. The structural challenges facing unions are such that only the big numbers brought in through an upsurge can move density rates by double digits.

WHAT COULD’VE BEEN

What does this mean for our organizing strategy? While many strategists have studied the conditions leading to an upsurge, most would agree that they are difficult to predict and even more difficult to manufacture. However, it’s also true that before and during each upsurge, union militants took specific actions that helped to spark, build, and sustain it.

There are all kinds of moments in history where the right combination of forces could have moved in a way that caused an upsurge, but didn’t. Even in the past 20 years there have been such moments. On March 10, 2006, a half-million immigrants took to the streets of Chicago to protest a proposed anti-immigrant law, shutting down hundreds of workplaces. Soon millions of people across the country flowed into the streets too.

Like most protest movements, these so-called “mega-marches” eventually dissipated (though it took a few years). But what if a network of activists, rooted both in workplaces and in the struggle for immigrants’ rights, had been able to use the momentum of the walkouts to sustain those strikes for economic or political demands?

What if organizers in strategic workplaces throughout the country had started to spread the strike movement to other sections of the working class? What if the march participants had had a map of the logistics chokepoints in Chicago and decided to disrupt commerce? What if insurgent teacher unionists had joined the effort? Who knows what could have happened?

The financial crisis in 2008, Occupy and the mass worker pushback in Wisconsin in 2011, the Red for Ed strike wave in 2018-2019, and the uprisings for Black lives this year all presented similar opportunities. And the people in the streets during those events? Few of them got there because they’d had a structured conversation with an organizer.

The point is that moments like this come and go all the time, historically speaking—but they aren’t sustained and multiplied, because the forces aren’t aligned to make that happen.

SPARK INTO AN INFERNO

Working-class upsurges often happen in the context of deep changes in society as a whole, such as abrupt and widespread economic dislocation, a profound loss of legitimacy by ruling elites, or abnormal political instability. Many of the factors contributing to an upsurge are not under our control, but some are. If we’re ready at these moments, we can turn a dust-up into a strike, one strike into several, one plant occupation into five, into 10. And then maybe that spark turns into an inferno.

You never know when that moment will come. There’s no structure test for an upsurge.

What does being “ready” mean?

While upsurges look different across times and countries, certain common elements increase the possibility that an isolated labor struggle will spark the sort of upsurge where unions grow dramatically. Certain of these elements can be affected by union activists.

1. More strikes: Dramatic growth in unions is almost always linked to a strike spike, both before and during the upsurge.

The 1934-1939 upsurge was kicked off by several large and militant strikes, including by teamsters in Minneapolis, auto workers in Toledo, longshoremen in San Francisco, and textile workers throughout the South. These came after several years of bitter strikes, such as the 1931 miners’ strike throughout Appalachia and the 1933 strike at the Briggs auto parts plant in Detroit.

The public sector organizing wave of the 1970s included hundreds of illegal strikes, such as the postal workers’ national strike in 1970, and the routine defiance of injunctions.

The willingness of at least part of the labor movement to take risks in the form of sustained, militant, and sometimes illegal action appears to be a necessary component in turning a “moment” into an upsurge.

2. Large numbers of workplace leaders ready to move: An upsurge can’t be driven by union staff. You need politically conscious working-class leaders who have experience in militancy (see #1) and a view that the existing system is illegitimate.

We saw this in the 1960s and 1970s, when the civil rights, women’s, and anti-war movements were all challenging the core of the system. Much of this movement organizing was then reflected in the booming public sector as rank-and-file teachers, state employees, and municipal workers built unions.

3. Independence from the mainstream: It’s unlikely that large, established unions will support the type of militant, risky action that characterizes the beginning of an upsurge.

Many union officials simply aren’t willing to run open-ended, majority strikes, outside of rare circumstances. Others don’t want to risk legal sanctions.

So where does organizing capacity come from in an upsurge? Historically, three places: a) the minority of unions willing to take militant action, b) new formations that come together during the upsurge, such as the new CIO industrial unions in the 1930s, and c) people fighting for profound changes in society, such as the civil rights movement of the 1960s, socialists in the 1930s, or anarchists in earlier periods.

Waging more strikes and developing thousands of new workplace militants will take a lot of work, and at times will require exactly the type of sophisticated organizing methods discussed earlier. But it will also require something else: a labor movement with a class-struggle orientation.

MISSED OPPORTUNITIES

What if the tactics needed to spark or fuel an upsurge aren’t the same as those needed to win a tough private sector union election during a low period in working-class consciousness? If they’re not, how many potential upsurges have passed us by while we were grinding it out in organizing efforts that only resulted in marginal gains?

What if the key to union growth isn’t simply more “smart organizing” but an entirely different strategic approach?

While some of the tactics honed in the 1990s and 2000s had their roots in earlier labor upsurges, they were largely divorced from a class-struggle strategy. A string of valiantly fought but ultimately losing strikes, running from PATCO in 1981 to the Detroit Newspapers in 1995, had convinced many unions that the strike tactic was futile.

So union campaigners often stressed “comprehensive” strategies that focused on developing pressure outside of the workplace: convincing supportive politicians to pressure an employer, media campaigns designed to impact a firm’s brand, or leveraging union pension funds to change a company’s behavior—rather than developing worker organization. If these strategies employed workplace militancy at all, it was often in the service of producing “content” to be used in media campaigns, rather than to actually affect the employer’s operations.

Within a few years, the early energy of the New Voices victory ran headfirst into the realities of business unionism. Affiliates were interested in growing their numbers, but less interested in taking risks. The most ardent apostles of organizing were marginalized and eventually cast aside, as the whole project devolved into meaningless goal-setting. The AFL-CIO announced a goal of 1,000,000 new members per year starting in 2000, a number that proved well beyond its reach.

The push to organize in the 1990s-2000s never seriously challenged the post-World War II status quo adhered to by most labor leaders, which was cemented by the purges of the left-leaning CIO unions in 1949-1950. Unions improved in other areas: race, gender, even foreign policy, but the core goal to rebuild the ranks of labor ultimately washed up on the rocks of business unionism.

Outside of the few unions with left histories, few in the labor movement at that time spoke of alternatives to capitalism. The Democratic Socialists of America, now at 70,000 members, was then a small organization with strong ties to mainstream labor leaders, and Bernie Sanders was not a name on the national scene.

Unions must do what’s necessary to survive. But we need to be doing a lot more to lay the groundwork for turning the next moment into an upsurge.

This blog originally appeared at Labor Notes on October 15, 2020. Reprinted with permission.

About the Author: Mark Meinster is an international representative with the United Electrical Workers (UE).


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Democrats, unions redouble push to move NLRB elections online

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The agency is risking the lives of workers and of its own staff by mandating that voters show up in-person mid-pandemic, they say.

Democrats and unions are stepping up pressure on the National Labor Relations Board to conduct its elections electronically to avoid the risks of in-person voting during the pandemic but are clashing with conservatives warning about fraud — mirroring the debate in the presidential race.

The NLRB, which oversees the elections that determine whether workers may form unions, is forbidden from collecting votes electronically by language included in every congressional appropriations bill since 2012. Now, as social distancing requirements continue to jeopardize in-person voting, labor groups want Congress to delete that language from fiscal 2021 spending packages and direct the agency to form its own electronic election system.

Republicans and right-to-work groups counter that conducting elections electronically opens the door to fraud and coercion on the part of labor organizations, echoing a charge that President Donald Trump has leveled at efforts to expand mail-in voting in the November election.

“The risk of hacking, fraud and coercion is just one of the many reasons union elections are held in person, closely supervised by the NLRB,” Rep. Virginia Foxx of North Carolina, the top Republican on the House Education and Labor Committee, said in a statement to POLITICO. “House Democrats scheming to rig the rules to force workers into unions isn’t new, but using the pandemic as an excuse to advance Democrats’ long-desired political objectives is particularly disturbing.”

“The idea of the secret ballot is you walk in the booth, and maybe people think they know how you vote but ultimately, only you really do,” said Patrick Semmens, vice president of the National Right to Work Foundation, a group aimed at eliminating “coercive” union power. “And that simply cannot be said of electronic voting, nor of mail-in ballots.”

“You can literally have a union organizer watch how you vote” under an electronic system, he added. “And that’s a problem; it opens the door to a lot of coercion.”

Union organizers, he said, “frequently” make home visits, so it’s possible they will be there when a person votes.

Democrats and unions counter that the agency is risking the lives of workers and of its own staff by mandating that voters show up in-person. Mail-in ballots, they say, are rejected by most employers — leaving electronic elections, something they considered during the Obama administration, as the only viable option.

“It makes no sense to deny workers access to a safe and efficient process for conducting representation elections,” the AFL-CIO wrote in a May letter to Congress. Among other organizations signing the letter were the American Federation of State, County and Municipal Employees, the United Food and Commercial Workers, the American Federation of Teachers and the Service Employees International Union.

A bipartisan pair of lawmakers, Reps. Andy Levin (D-Mich.) and Brian Fitzpatrick (R-Pa.), introduced a bill this month that would repeal a provision included in past appropriations bills forbidding the NLRB from allowing “voting through any electronic means.”

The legislation, which has 45 cosponsors, would appropriate $1 million for the agency to create a system allowing for unions to be formed via electronic voting. If the NLRB cannot develop an effective system within 60 days, the bill would mandate that it adopt an electronic voting system in use since 2007 by the National Mediation Board, a body that seeks to resolve labor-management disputes in the rail and airline industries.

“If you took politics completely out of this, no sane person would say we should have in-person NLRB elections when we can conduct them electronically with complete confidence, and even save taxpayer money and be more efficient,” Levin told POLITICO. “We’re just trying to take a public health approach here.”

Union groups including the AFL-CIO, American Federation of Teachers, the Communications Workers of America and others have endorsed the legislation, according to Levin’s office.

The NLRB suspended votes for two weeks at the outset of the Covid-19 pandemic amid uncertainty over how to proceed. Last week, its general counsel issued guidelines to allow for in-person elections to continue; those were condemned by the board’s own union, which said they would “expose NLRB employees to Covid-19.”

The suggestions included considering adjusting voting times to prevent crowding and allow for social distancing, limiting the number of observers of the election, and certifying that the polling areas are sanitized, among other protocols.

Foxx and Rep. Tim Walberg (R-Mich.) sent a letter in June to the NLRB urging the agency to dismiss calls to move elections online, calling them “little more than another attempt to change the rules in favor of organized labor, against workers who wish to represent themselves, and against employers who wish to negotiate directly with their employees.”

“[I]t is clear that in-person, secret-ballot voting is the most reliable method for elections of any kind, and we strongly encourage the NLRB to ensure that all union elections under its jurisdiction be conducted in this manner to ensure a free and fair process,” the two wrote.

Asked about the possibility of fraud, Levin pointed to the National Mediation Board’s track record. The agency has “zero” incidents of fraud since it began conducting electronic elections 13 years ago, he said. The board declined to comment when asked to confirm this.

“It’s an argument with no merit whatsoever, and if they’re making an argument with no merit whatsoever, they must be making it for a different reason, which is simply that they want to prevent workers from forming unions in America,” Levin said.

This blog originally appeared at Politico on July 16, 2020. Reprinted with permission.

About the Author: Eleanor Mueller is a legislative reporter for POLITICO Pro, covering policy passing through Congress. She also authors Day Ahead, POLITICO Pro’s daily newsletter rounding up Capitol Hill goings-on.


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Republicans Are Taking Voter Suppression to the Workplace

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A Republican party that survives through voter suppression may be replicating its model in the workplace. In December, the National Labor Relations Board (NLRB) invited public commentary on a possible revocation of a rule that makes employers provide union organizers with contact information for workers in advance of a representation election.

Ostensibly, the Board, which will almost certainly remain in control of Republicans until 2021, is reconsidering Obama-era rules that sped up the timeline of union elections and added phone numbers and email addresses to the list of contact info that unions must be furnished before an election. But outgoing Board Chairman Phil Miscimarra’s bellyaching about “employee rights of free choice and privacy” implies openness to removing any legal right of union organizers to talk with potential members.

The very fact that Trump’s NLRB is inviting public comment indicates that it is considering reversing a much older precedent: the 52-year-old Excelsior rule that employers should provide a list of names and addresses of eligible voters in an upcoming union certification election. Sharon Block, a former member of the NLRB and current Executive Director of the Labor and Worklife Program at Harvard Law School, has argued that the slew of hastily-decided reversals of second-term Obama precedents “seemed to be a rush to set the clock back on workers’ rights as much as possible.”

The Excelsior rule makes employers provide union organizers with a list of eligible voters and their home addresses a few days before an election. It’s an essential tool in a campaign, and any cut is a blow to unions. However, it is also important to remember that Excelsior was a bad compromise, and a real solution lies in actual free speech in the workplace. That will require that unions wage a free speech fight to regain our voice at work.

Captive-audience meetings versus knocking on doors

As soon as the National Labor Relations Act was passed in 1935, employers were already challenging the legal framework for workers to organize and bargain collectively.

In six short years, the bosses succeeded in demolishing the Act’s mandate of employer neutrality by strenuously appealing to the Supreme Court that the standard restricts bosses’ First Amendment right to inform their workers about just how strongly they oppose unionization. Six years after that, a Republican Congress codified this unequal application of free speech in the Taft-Hartley Act.

For a brief time after Taft-Hartley, the NLRB enforced an equal time standard by granting union organizers access to talk to workers on the job when an employer conducted captive-audience meetings. In an all-too-familiar pattern, the Board ping-ponged back and forth between different legal standards on employer speech and union access, depending on which political party was in the White House, until 1966.

That was the year of Excelsior Underwear, Inc ., the NLRB decision that established the right for unions to be furnished with a list of names and addresses of eligible voters. It was issued on the same day that the Board declined to reinstate the equal time rule. The case that we should have won that day was General Electric Co. and McCulloch Corp.

Loathe to trample on management’s rights and private property, the Democratic majority begged the unions in that case to try visiting workers at home and see if that effectively counter-balanced the boss’s work-time campaigning.

Anyone who has worked as a union organizer will tell you that an Excelsior list is no match for the mandatory round-the-clock campaigns of intimidation that union-busters consider “management’s most important weapon” in beating back an organizing drive.

Kate Bronfenbrenner, director of Labor Education Research at Cornell University, has been documenting employer union-busting tactics for decades. Her most recent study, covering the period of 1999 to 2003, found that 9 out of 10 employers use captive-audience meetings to fight a union organizing drive. Bosses threaten to cut wages and benefits in 47 percent of documented cases, and to shut down entirely in 57 percent of union elections. Incredibly, in one out of 10 campaigns employers hired “consultants” to impersonate NLRB agents.

That report is nearly nine years old. It is likely that when Dr. Bronfenbrenner updates her research, all of these numbers will be even higher—particularly the instances of outright lies and deception.

Within the General Electric Co. and McCulloch Corp. decision, the NLRB explicitly invited unions to press the issue of equal time if experience were to prove that knocking on workers’ doors was no match for mandatory captive-audience meetings. Labor law scholars Charles Morris and Paul Secunda were clever enough to notice this half-century-old invitation. Last year, they organized 106 of their leading peers to sign on to a petition to the NLRB to reinstate the equal time rule.

The right to free speech

We shouldn’t hold our breath waiting for Trump’s NLRB to respond to that petition, but we also shouldn’t be patient about demanding change. This past summer, I proposed that unions wage a constitutional battle to challenge the most unequal aspects of labor law and fight for workers’ constitutional rights on the job. Call it Labor’s Bill of Rights.

At the heart of the problem is that the National Labor Relations Act derives its constitutional authority from the Commerce Clause. That means that when workers’ rights are challenged in the courts, judges are weighing corporations’ First Amendment claims against unions’ claims that workers’ rights to organize and go on strike are good for business.

Under that framework, bosses’ rights and business interests have trumped workers’ free speech and human rights. Consider union certification elections. These are official legal elections conducted by an arm of the federal government. At stake is whether the government will enforce certain statutory rights of the workers who wish to form a union. The rules of the election are determined by the government through court decisions, congressional action and NLRB rule-making.  In this simple “yes” or “no” vote about whether there shall be a union, only an employer—and only one advocating a “no” vote—can force voters to attend speeches where they will tell them how to vote And if any voter declines to attend, she can be fired. This is compelled political speech and a massive violation of workers’ free speech rights.

Perversely, Trump’s NLRB could be doing us a favor if it really does kill Excelsior lists by making the imbalance of free speech rights in union organizing campaigns that much starker. Regardless of what new form of union busting the Trump NLRB endorses, we should start waging a campaign to restore the equal time rule now.

What this free speech fight would look like as a campaign is this: every time an employer stages a captive-audience meeting in advance of a union election, we should file an Unfair Labor Practice charge. And every time a union loses an election where the employer conducted captive-audience meetings (which, again, is almost always), we should file an appeal to have the election results overturned.

We should be filing these cases now, even with a Trump Board that will dismiss them all. If we can file a couple hundred challenges and make enough noise about them, we can turn the free speech fight over captive-audience meetings into an obvious controversy that the next Democratic-majority NLRB must respond to.

A Democratic NLRB with a modicum of decency would—at a minimum—re-establish the rule that conducting captive-audience meetings while providing union advocates no right of response is grounds to void an election and order a re-run. Better would be a rule making the very act of conducting captive-audience meetings an Unfair Labor Practice subject to court injunctions, unless union advocates are granted an equivalent platform—in work locations, on work time—from which to campaign for a union yes vote.

If the NLRB were to rule in our favor, we should expect the first employer to face sanctions to resist and drag the case into the federal courts. And then we’re off to the races with a well-deserved counter-attack to the cynical right-wing Harris, Friedrichs and Janus efforts to use free speech as a cudgel against union rights.

This article was originally published at In These Times on January 16, 2018. Reprinted with permission. 

About the Author: Shaun Richman is a former organizing director for the American Federation of Teachers. His Twitter handle is @Ess_Dog.


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