the company” or the long-term viability of jobs. Unions wind up taking the heat for employers’ bad business decisions and their demands that workers pay for them.
In the 1980s, the United Autoworkers agreed to the first contracts that contained rollbacks of compensation and work rules, ostensibly to help the “Big 3” auto companies stay competitive with foreign imports. Workers in the Canadian shops responded by bolting to form a new Canadian Autoworkers union. They were taking advantage of the fact that there’s a separate body of Canadian labor law, and that protectionist trade policies and the difference in currency values gave them a better ability to resist the concessions.
Canadian workers dropped the UAW because they could. Imagine if the CIO had lost its push for the principle of exclusive representation. Imagine if American workplaces still had multiple competing unions. We’ll play with this thought some more later in this book. For now, let’s just say that the Big 3’s push for concessions would have been messier and more chaotic and that the bosses would certainly have taken more heat and more of the blame for the situation from the workers.
The Duty of Fair Representation and the Workplace Constitution
Unions have a legal obligation to represent all members of a bargaining unit. That doesn’t just mean bargain a contract that applies for everyone. It means that if a member of the bargaining unit comes to the union with a problem, the union must investigate and must expend resources on filing a grievance if the case has merit. And the union must do this regardless of whether or not the worker is paying dues.
This is called the duty of fair representation. It has the effect of bureaucratizing unions, to some extent, converting fighting organizations of workers into quasi-governmental workplace court systems. Workplaces need this kind of representation, but the way that we do this in the United States is unusual and, like so much of our labor relations system, was not entirely intentional.
The duty of fair representation developed partly in response to the shameful racism of some unions. In particular, the old railroad brotherhoods used their collective bargaining to try to maintain the workplace segregation that the bosses had fomented long before the unions came on the scene.19 They barred black workers from membership and then tried to negotiate closed shops, which would have totally barred blacks from employment. Later, when black workers managed to get jobs on the railroads, the brotherhoods negotiated racially stratified job categories and pay scales and tried to keep blacks out of the better jobs. Other unions, particularly in the South, attempted to maintain segregated locals and bargaining units by jointly petitioning the NLRB to represent workers on a kind of “separate but equal” basis.
This is all ugly stuff and naturally aroused the NAACP to launch legal campaigns to prevent it. Led by Herbert Hill, NAACP lawyers soon moved beyond merely trying to prevent union discrimination and began trying to use labor law to advance a broader civil rights agenda.20
The period that I’m talking about here is the 1940s and ’50s, when the idea of getting civil rights legislation passed was a very long term proposition (bordering on fantasy). But Hill and his allies saw the National Labor Relations Act as a pathway for getting constitutional rights into the workplace. Sophia Z. Lee has shone new light on this theory and the legal campaign that pursued it in her excellent book The Workplace Constitution.21
Now, in the twenty-first century, I know that it’s fashionable for people to snark in the comments section that “freedom of speech is not freedom from the repercussions of speech.” And union organizers tend to disabuse people of the notion that they have many enforceable rights at work (without a union contract, that is). But, stretch your mind a little bit and try to see what Herbert Hill saw.
The Bill of Rights and the Reconstruction Amendments (Thirteen, Fourteen, and Fifteen) are the best things in the U.S. Constitution. They clearly articulate human rights that people understand and believe in. The only problem with them is that, with the crucial exception of the Thirteenth Amendment, they only restrict the government from violating your rights. On a day-to-day basis, however, your boss has way more power over your life and liberty.
The NAACP looked at the NLRB and saw an arm of the federal government that was certifying that workers—Taxpayers! Citizens!—had democratically chosen an organization to represent them. This arm of the government, with the threat of a court injunction, had directed those workers’ employer to meet with their representative and bargain in good faith. That arm of the government would also step in if any party claimed that the other side’s behavior was unfair and would issue a decision that is binding.
This, Herbert Hill argued, was state action. Whatever the NLRB signed off on, whatever the NLRB blocked, was bringing the government in as a party. If it was an action that would violate constitutional rights if the government were to do it directly, it would also be a violation in government-regulated labor relations.
That was their argument anyway. In particular, they saw the NLRB as a strategy for getting free speech, due process, and equal protection into workplaces. And those principles are respected in the duty of fair representation, which they did win. But those principles still don’t apply to employer behaviors, largely because Hill’s workplace constitution approach was abandoned.
Congress did finally pass civil rights legislation in 1964, and many activists found those laws a preferable way to address workplace discrimination. Plus, unions chafed at increased governmental regulation of their constitutions and collective bargaining, even if it was for a righteous cause. Finally, Ronald Reagan’s court appointments ushered in a new era of conservative jurisprudence that prioritized the literal words written by long-dead white male slaveholders over novel constitutional interpretations like Hill’s.22
But the results of these efforts further solidified the legal preference for exclusive representation and forced unions into the role of quasi-governmental representative in the workplace. The responsibilities of behaving as a workplace government can get particularly problematic when unions are prevented from collecting their “union shop” equivalent of taxes, as “right to work” laws aim to do.
The “Right to Work” and the Dismantling of the Postwar Labor Movement
The maintenance of membership clauses of the Second World War period, the closed shop agreements that the craft unions enjoyed before them, and the union shop/union security provisions that were bargained in the immediate postwar era drove captains of industry, right-wing ideologues, and rabid racists out of their bloody minds. Anti-labor propaganda and political pressures ensued.
Between 1944 and 1946, five states (Florida, Arkansas, South Dakota, Nebraska, and Arizona) passed laws that were given the confusing but populist-sounding name “Right to Work.” Some of these laws aimed to make illegal the closed shop, which made union membership a precondition for getting hired on a job. Others aimed to outlaw any rule whereby a worker could lose his job for refusing to join or pay any kind of fee to a union after he was hired. All of the bills appealed to that peculiarly macho American notion of rugged individualism.
Unions initially responded with technical legal appeals. Their argument: the National Labor Relations Act was the nation’s labor law. It allowed and indeed encouraged union-shop and closed-shop clauses as a subject of bargaining. Federal law is supreme and preempts state law; therefore these “right to work” laws were unconstitutional attempts by states to overrule the federal government.
The 1946 midterm elections saw the New Deal Democrats turned out of office for the first time. One of the factors in the Republicans’ victory was the public’s mixed opinion on the postwar strike wave. The strike wave was a result of workers’ pent-up frustrations with wartime inflation and wage freezes compounded with long-simmering resentments from Depression-era privations. The strike wave
