Reviving Labor After Wisconsin: Unions Need A New Approach Emphasizing Civil Rights

Our guest authors today are Richard D. Kahlenberg, a senior fellow at The Century Foundation, and Moshe Z. Marvit, a civil rights attorney. They are authors of the book Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy By Enhancing Worker Voice.

Conservatives are calling the failure of public sector unions to recall Wisconsin Governor Scott Walker labor’s “Waterloo.”  Just as private sector unionism has declined from a third of the workforce in the 1950s to less than 7 percent today, Charles Krauthammer writes in the Washington Post, “Tuesday, June 5, 2012, will be remembered as the beginning of the long decline of the public-sector union."

This forecast seems an exercise in hyperbole (many voters don’t think recall elections are an appropriate response to policy disputes) but the setback for labor was indeed serious.  One of the lessons of Wisconsin is that if public sector unions want to survive, they need to find ways to help revive trade unionism in the private sector.

The fates of the two sectors are deeply intertwined.

For one thing, as we have noted elsewhere, in other societies, a strong private sector union movement can help protect public sector unions when they are under attack.  The failure in Wisconsin in part reflects the inability of a weak U.S. private sector union movement to play that protective role.  For another, the decline in private sector unions allows conservatives to engage in their own form of class warfare.  Mitt Romney, for example, has argued he wants to “stop the unfairness of government workers getting better pay and benefits than the very taxpayers they serve." Putting aside the empirical inaccuracy of Romney’s statement, a stronger private sector union movement would level up wages and benefits for private sector workers, reducing the ability of politicians to exploit envy of public sector employees.

Albert Shanker understood that a strong private sector union movement was good for public sector unionism – and good for the country – which is why, as president of the American Federation of Teachers, he fought very hard for private sector labor law reform that did not directly benefit his own members.  AFL-CIO leader Tom Donahue recalls that the AFT “played a very serious role” in reforming labor law in the private sector, “and didn’t regard [it] as somebody else’s fight."

So how can we revive private sector unionism today?  Earlier this year, we published a book, Why Labor Organizing Should Be a Civil Right, which argues that a central reason for the decline in private sector unionism is the weakness of American labor law, which allows employers to fire those seeking to form a union and pay only small penalties.  As AFT president Randi Weingarten wrote in a blurb for the book, “organizing all too often is ‘a right without a remedy.’”

To address this problem, we recommend amending the Civil Rights Act of 1964 to protect individuals against discrimination when they try to form a union.  The Civil Rights Act has much stronger penalties than U.S. labor laws do, and conceiving of labor rights as civil rights would take labor law reform out of the realm of “special interest” legislation to a higher moral plane.  While some argue that protections for labor don’t belong in the Civil Rights Act, Norman Hill and Velma Hill’s review of the book in the Shanker Blog eloquently outlines the strong connections between the labor and civil rights movements, which are bound together by a commitment to human dignity.

In discussing the book in recent months, and at a Century Foundation forum earlier this spring, three core concerns have been raised that deserve responses.

1. Does the Civil Rights approach, which highlights the wrong to individual workers, undercut the labor movement’s emphasis on solidarity?

Some labor advocates worry that an approach that emphasizes the individual civil rights of workers is in tension with the model of collective action that is at the heart of unionism.  But we advocate the individual rights approach for two reasons.  First, whether we like it or not, appeals to individual rights are more in keeping with the American ethos than appeals to solidarity.  Right wing opponents of unions have long capitalized on this fact by talking about the individual “right to work”; it is time for labor to recapture the rhetoric of rights.  Second, there is no inherent contradiction between defending individual rights and pursuing collective goals.  In the civil rights context, the individual right to sue employers for discrimination has done nothing to dampen efforts at collective action to fight racism, as the many mass marches on behalf of Trayvon Martin remind us.  Indeed, if, by gaining individual protections against discrimination, workers are better able to exercise their rights to form unions, the country’s emphasis on solidarity will be strengthened – not weakened -- over time.

2. Is the Civil Rights approach too narrow, undermining the ability to achieve comprehensive labor law reform to address additional issues such as the failure of employers to engage in bargaining once a union is certified, and the ability of firms  to permanently replace workers who exercise their right to strike.

We support comprehensive labor law reform that addresses a wide variety of employer abuses, but over the past 45 years, four efforts at reform have been attempted – under Lyndon Johnson, Jimmy Carter, Bill Clinton, and Barack Obama – and all have gone down to defeat.  Complex pieces of legislation were difficult for Americans to understand and the labor’s intentions were easily distorted by opponents.  We think it makes more sense to lead with a very simple question: if an individual is doing a good job at work, should an employer be able to fire her simply for exercising her right to join a union? By taking away this powerful weapon employers now used to intimidate workers, labor will be in a much better position to see its ranks grow.  A stronger labor movement, in turn, will be better situated to push for additional reforms – involving, for example, mandatory arbitration for employers who don’t bargain in good faith.  An initial win on the simple question of employer discrimination against those seeking to form a union will enhance – not undercut – the ability to win further reforms.

3. Is the Civil Rights Act a sacred text which should not be opened up to possible mischief?

Some worry that the Civil Rights Act should not be opened up to amendment because doing so might allow conservatives to weaken the underlying law to protect against discrimination based on race, sex, or national origin.  We share the goal of preventing harm to these existing rights, though we envision this legislation moving forward only under a progressive Congress, where the prospect of trouble would be mitigated.  Still, to address that qualm, it would be possible to introduce “stand-alone” legislation – like the Employment Non-Discrimination Act (ENDA) for gay Americans – which would provide the protections of the Civil Rights Act for labor without literally amending the underlying act itself.

It is clear, after the results in Wisconsin, that public and private sector unions need to be open to new strategies to vindicate worker rights.  Much of what we have to be proud of as Americans in the past half century is rooted in the Civil Rights movement and legislation that delegitimized overt racism in the workplace.  In order to address our society’s deepening class inequalities, it is time to extend antidiscrimination protections to workers of all races trying to join a union and become members of the middle-class.

- Richard D. Kahlenberg and Moshe Z. Marvit

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