his book The Blue Eagle at Work, Charles J. Morris argues that there was never an intention that a union would have to win a majority of votes in a certification election. There was a clear understanding by the Act’s authors and the early administrators of the National Labor Relations Board that in so-called open shops, there would be, at best, a militant minority of union activists but more likely a few scared and secret members of a union.14 The purpose of the Act was to force employers to deal with these incipient unions, and the legitimacy that the union would achieve by actually meeting with management and negotiating over workplace issues might help the union attract more members and grow in power.
There were at the time also multiple unions in a lot of shops, competing for workers’ loyalty, activism, and dues money. The nature of their competition, however, would ultimately result in the exclusive representation framework, particularly once the Congress of Industrial Organizations split from and began competing with the American Federation of Labor.
The CIO began as a committee of unions within the AFL that advocated for new unions to organize workers on the basis of the industry they worked in instead of by job classification. They wanted the Federation to charter a new union of autoworkers to represent all of the workers at Ford and GM, regardless of whether they welded the frame, installed a fuse, or swept the floor.
The craft unions of the AFL entered the 1930s still trying to make organizational sense of the mass production industries. They saw each of the tiny, timed movements on the assembly line as devalued crafts that they should represent individually and re-skill. The AFL granted a temporary charter for autoworkers only while the crafts debated how to divvy up the members.15
The decisive split between the CIO and the AFL arose over the question of what the unions’ strategic orientation should be regarding the new labor law and the Roosevelt administration that signed it.16 The craft unions were wary of involving the government in collective bargaining and inclined to stick with their traditional “reward your friends and punish your enemies” approach to electoral politics.
The CIO unions, led by the legendary Mineworkers president John L. Lewis, saw the labor board as essential to organizing auto, steel, and the steel industry’s non-union “captive” mines. They feared losing the opportunity of the moment if Roosevelt did not win reelection, and they wanted labor to be a full-throated member of the New Deal coalition.
Once independent, the CIO began creating new unions for the auto factories, steel mills, textiles mills, and a host of other mass production industries. Thanks to a lot of brave organizers, creative job actions, and an interventionist federal government that forced employers to deal with unions, the CIO grew rapidly. Faced with the threat of political irrelevance, the AFL began organizing in earnest, forcing the NLRB to conduct elections to determine which union the workers preferred.17
The last thing the CIO wanted was to see its powerful new unions carved apart by craft unions, each claiming their couple dozen members. The CIO would file to represent broad categories of job titles and duties and bargain as a unit. And they filed to be the exclusive representative of those bargaining units. This is when the NLRB decisively shifted away from certifying the desire of any group of workers to be represented by a union to conducting elections to certify unions by majority vote.
There are two plainly political reasons why the ClO’s vision of union certifications won out. First, the CIO was an ally of the administration and increasingly important to the New Deal electoral coalition, whereas the AFL’s election activity was more muted. Second, employers preferred not to deal with multiple unions, particularly if they would be competing over who can make bigger demands and wage more militant job actions. Of course, a boss’s preferred number of unions to deal with is almost always zero. But one is their second favorite number.
The Political Costs of Exclusive Representation
Unions that win certification as the exclusive representative of a bargaining unit do not automatically win dues-paying members. They win the right to bargain on behalf of the workers, and with that the legal and political obligations that have built up over time. Today, where they are strong enough to do so, unions negotiate “union shop” clauses into collective bargaining agreements, which demand that workers hired into bargaining unit jobs join the union.
The prewar industrial unions were voluntary membership groups. They certainly aimed to get every member of the bargaining unit to join the union. (Again, that notion was simply in the DNA of American unions.) And they were mostly successful. Unions were winning. Every new agreement brought substantial improvements in wages and working conditions. Workers were still moved by the spirit of solidarity that came from supporting each other in job actions. A worker who didn’t join the union was a scab, a pariah, a social leper.
The Second World War changed everything. After the bombing of Pearl Harbor, the leadership of both labor federations immediately pledged not to strike for the duration of the war. Those newly organized steel mills and auto factories were converted into wartime production. America’s factories were the home front. The union leaders were being patriotic. It may be ironic to some, but the Communists, who led some unions and were on staff at many more, were the most militant enforcers of tamping down worker militancy. After all, this was a war to fight the fascists in alliance with the Soviet Union!
The NLRB was temporarily supplanted by a War Labor Board that had the authority to approve or disapprove tentative agreements negotiated between unions and their employers. That this had been the fear of the AFL craft unions in 1935 and that they were now okay with it was another little irony.18
Less than one year later, Roosevelt issued an executive order for a wage freeze to combat wartime inflation. This put union leaders in a real bind. Most union members shared the patriotic impulse of their leaders and wanted to aid the war effort at home. But they were also workers who were dealing with faster and more intense demands on the job and a rapidly rising cost of living. Now they were told they could not get a raise and that their union leaders and staff were legally compelled to stop them from engaging in any protest activity that could slow down production.
So, many workers stopped paying their union dues. This wasn’t scabbing. This was protest! Unions that had to expend significant resources maintaining labor peace and aiding the government and their employers in increasing productivity simultaneously faced the threat of a precipitous drop in their dues revenue.
In response, the industrial unions pushed hard in 1942–43 for closed-shop arrangements like the craft unions had long enjoyed. Employers resisted, and the resulting bargaining impasses wound up before the War Labor Board for arbitration. The government was keenly aware that without some guarantee that dues revenue would not continue to decline, there was a significant risk that some unions would abandon labor peace to win back lost members, imperiling wartime production.
The War Labor Board dictated a compromise that nevertheless set the stage for the union shop. “Maintenance of membership” provisions were inserted into collective bargaining agreements, thereby ensuring that anyone who was a member at the time the contract was signed had to remain a member for the duration of the agreement. With this endorsement of the union security principle from the federal government, most employers soon relented and agreed to “union shop” clauses in successor agreements.
This is a crucial point and a little understood distinction. From their inception, mandatory union fees were not intended to compensate unions for the financial costs they bear for bargaining and filing grievances. Mandatory union fees are the compensation for the political costs of representing all the workers in a shop and maintaining labor peace.
This remains true today. It is the combination of exclusive representation and the union shop that enables unions to agree to “shared sacrifice” or just plain old concessions and
