This is a transcript of a conversation, taped May 9, 2012, featuring Century Foundation fellow Amy Dean, Century Foundation senior fellow Richard D. Kahlenberg, and Richard Bensinger, acting organizing director for the United Auto Workers union. A version was printed on Truthout.org.
Download a printable PDF version.
See video from our recent The Future of Labor Organizing event. Dean and Kahlenberg continued this conversation with Ai-jen Poo of National Domestic Workers Alliance.
Amy B. Dean is a fellow at The Century Foundation and the principal of ABD Ventures, LLC. She is coauthor (with David B. Reynolds) of A New, New Deal: How Regional Activism Will Reshape the American Labor Movement, a Century Foundation Book (Cornell University Press, 2009). From 1993 to 2003, she served as president and CEO of the South Bay AFL-CIO Labor Council.
Richard Bensinger is an author, American labor activist, and labor consultant known for his advocacy of expanded organizing efforts. He is the founder of the Organizing Institute and was the first organizing director of the AFL-CIO. He is currently the acting organizing director for the United Auto Workers union.
Richard D. Kahlenberg is a senior fellow at The Century Foundation and writes about education, equal opportunity, and civil rights. He is the author (with Moshe Z. Marvit) of Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice (The Century Foundation Press, 2012).
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Amy Dean: So let me just give a quick frame for this, and then we’ll launch in. The question is, broadly speaking, are there reforms that can rebuild labor’s role as a legitimate steward in the economy, and can we even be thinking about Washington being the focus for that? I know a lot of these questions won’t be new to Richard Bensinger, and that you’ve been for decades thinking about this stuff and advocating for different kinds of strategies. But now that the election is almost here, I want to talk a little about what labor should expect from Democrats. So the first question is, does Washington even really matter for our organizing?
Richard Kahlenberg: I think Washington still does have a role, an important role in the sense that our labor laws need to come from Washington. The National Labor Relation Act preempts state regulations in the area of labor law, and we have a completely dysfunctional statute. Tom Geoghegan and Moshe Marvit and I have outlined in a new book, Why Labor Organizing Should Be a Civil Right, an alternative vision for trying to provide a genuine right to organize in this country.
Labor has been backing the Employee Free Choice Act, which I also support, but it’s pretty much dead now, and it seems to me that President Obama could really show his support for labor and energize labor if he were to get behind the notion of amending the Civil Rights Act of 1964, which now protects people from discrimination based on race and gender, national origin, and the like. Add to that the idea that you shouldn’t be discriminated against simply for exercising your right to join a union and trying to become a member of the middle class. It’s a much simpler proposition than the Employee Free Choice Act, which dealt with a number of very important issues that were complex in nature and allowed opponents of the act to exploit the misunderstandings about what it was designed to do. And so, we think getting across the basic idea that people have a civil right to organize, and that they shouldn’t be fired or otherwise disciplined for exercising that right, is one that Washington could play a big role in supporting.
Amy Dean: Right now, as I see it, the labor movement strings together or knits together a sort of long laundry list of legislative priorities in the next Congress and calls that labor’s agenda. Prospective candidates that come up before the labor movement for endorsement are often confronted with this long list, which equals what labor wants in this next Congress. The question I have is, is that good enough for our labor needs, some kind of federal legislative agenda? If so, what ought that to be?
Richard Bensinger: Well, I think that everyone in the country, and really, in the world, talking about income inequality and the destruction of the middle class in this country and globally, they look to a union like the UAW probably as much as anything, as it helped to build the middle class in the ‘30s and ’40s. And so before I look at the issue of the 99% and the 1%, it’s impossible to fully address that issue without making the right to organize a union central to the debate.
There’s not going to be income equality in this country, or any country, unless there’s a vibrant labor movement. In some cases in this country, the threat of a union used to make some employers honest, and now that unions are down to only 6% of the private sector, even the threat of unions has been diminished greatly. So I think that there has to be a federal policy, and I think it should be a top priority of unions and any administration to try to reform the labor laws.
But at the same time, as we’ve always said, a movement creates legislation, not the other way around, so we can’t wait to organize—labor leaders have been saying that the last couple of decades. I think they’re right. We have to organize ourselves now in order to really ever achieve any legislation. And I think the labor laws are bad, and we should probably say what’s wrong with them. I mean, Human Rights Watch said that—I believe that the labor laws in the United States are the worst under which employees organize globally, or one of the worst. And the UN has global standards which are far superior to the National Labor Relations Act. And so the NLRA really acts as a hurdle or an obstacle to organizing unions today, and not a vehicle to achieve them, which it was originally set up to be.
Amy Dean: What I find so interesting is that, on the one hand, we have the whole language around the 99% and the fact that economic inequality is front and center on the national agenda, which for those of us who had been around for a while, it’s pretty extraordinary. And yet, I don’t hear anything about labor as a solution to this problem.
Richard Kahlenberg: It’s a huge omission. If you look at the decline in the percentage of union density in this country and track it against the decline and the proportion of income going to the middle class, the lines are almost perfectly squared. The fact that labor has largely collapsed in the private sector is directly related to our rising income inequality. The Economic Policy Institute has a figure that shows the increases in productivity over time and what proportion of those gains have gone to workers. And when labor was strong, those two lines coincided, and then they diverged when labor became greatly weakened, so that the top 1% has captured all the productivity gains in the last two decades. So, I agree with Richard [Bensinger] that there is no way to address our nation’s income inequality without talking about labor as a central part of the solution.
Amy Dean: It just seems so strange to me that [with Occupy] we’ve got this growing movement, but activists are not seeming to raise labor as a viable solution or even a viable partner in this sort of broader movement for economic justice that’s captured the 99%.
Richard Bensinger: I have visited the number of the Occupy sites around the country in different cities, in New York, in Tennessee, in Mississippi. I think there is a lot of conversation, at least amongst the people occupying about unions, a lot of education too because unions have been forced so far outside the mainstream. A lot of young people are disconnected from it. It’s not like they don’t like unions. It’s not relevant to them. But, at the same time, there are organizing campaigns on the ground. We’re finding young people on the leadership.
When you pose the question to people in this economy today, I think workers have this very, very favorable view of having an organization, having a union, even more favorable, I think, than in other time periods in my career, which is now getting pretty long. And I think one of the reasons is that the companies are taking advantage of the poor unionization, the lack of a threat of unions—and a weak labor law, frankly—to pay people less, treat people worse, and there’s an arrogance, I think, in how the employer community treats people today. And so I think there’s an opportunity for unions to step in and organize now in both manufacturing and then the economy is hugely service sector and that’s been a de-unionized, you know, a mostly de-unionized sector. And the only reason the service sector pays less is because it’s never been historically unionized. It’s no reason it shouldn’t be as it is in other countries, but it all does come back to two things: a commitment of unions to organize, and what’s wrong with the federal labor laws.
Amy Dean: There’s always been attention among organizers in the labor movement about whether or not we should spend any of our efforts around electoral strategy. And it seems to be a bigger conversation now, even within the sort of 99% Spring that took place this April, in the debate about whether or not electoral politics matters, and whether we should be involved. At the same time, whether we agree or don’t agree that we should be involved, the fact is that the labor movement spends millions and millions of dollars to elect candidates every year. I’ve always felt as someone, for many years in labor movement it’s sort of Pavlovian, you got back what you asked for with them. It’s not much more complicated than that. Maybe I oversimplify it, but you know, you get what you ask for, and so long as you are clear about what you’re asking for, it’s easier to say, “I’ve given you this and haven’t given you that, but I’ve given you enough.” And so I guess the question is, you know, labor isn’t going to stop spending millions of dollars on raises. And so what should we be expecting from candidates that labor throws its weight behind, in terms of resources and people power?
Richard Kahlenberg: I think, at a minimum, labor should be asking if those candidates who are seeking labor support would get behind legislation to ensure the survival of the labor movement in this country. I mean, we’ve gone from one-third of the private sector being organized to 6.9%. You know, if these trends continue, there won’t be a labor movement in this country. It’s a matter of survival.
Amy Dean: The labor movement argues it’s doing that.
Richard Kahlenberg: Yes. I think they should ask for support and that the labor movement needs to start rethinking strategies of what sort of reform we might have that people can understand. Richard mentioned the appeal to young people and that’s going to be vital in any effort to get legislative change. And young people understand the civil rights movement. They are excited by the civil rights movement. They’re taught about it at school. The Albert Shanker Institute released a report not long ago which found that labor history is not taught in the school and when it is taught, it’s not taught well. And so if labor wants to be relevant, I think it has to reframe the way we think about labor organizing and labor rights and connect it to the excitement of the civil rights movement. And if labor can ask for that sort of reform, then maybe there’s a chance we’ll actually see action.
Richard Bensinger: Well, we all get frustrated with the lack of political change, and I’m a union organizer, not a political organizer, so that’s my expertise, but I think Amy, you said it well in your question: if we don’t make organizing a number one priority always, no one else will, and we’re doing a disservice for the country if we don’t. Labor in the last few years has done a better job, I think, of trying to mobilize and prioritize organizing, which is a good thing.
Take the auto industry, for example. Chrysler wouldn’t exist today if Mitt Romney had been president. It’s a no-brainer that Barack Obama has supported the industry and supports union organizing, and all of that, but having said that, it still is true. I think it’s a false dichotomy, organizing versus pop electoral politics, but you do need both. But my heart has always been in the organizing, not in the legislative end. My heart has always desired and craved a labor law reform bill, which periodically every few decades we get within a couple of votes on.
But even if we got a labor reform bill, employers are always going to fight unions. It’s never going to be easy, but we should, at least, achieve a minimum legal standard, do the same as other countries have done. In Germany, if you want to organize a union, one person can sign a union card that the union is recognized. In this country, federal labor laws do not protect workers who organize, period. And there are really no penalties, only remedies. There are no penalties when employers fire, or threaten, or intimidate people who want a union, so there’s no fairness in the NLRB election process. When it comes to NLRB, I think employers are not really that concerned about the court of law, but the good news is employers are very concerned about the court of public opinion, which is even stronger, and that’s, again, what the Occupied movement shows. We don’t have to wait to organize to get legislative change in the United States, because I think corporate America has reason to be very worried about a growing movement around the world to have a fair and just economic policy.
Amy Dean: I want to just go back to legislative piece, even though I know that’s not where everybody’s heart lies. You guys know my biases: I don’t think there’s the political space and the will for anything innovative at the federal level, and my life’s work has been at the regional level, defined as sort of bigger than a city, smaller than a state. So I’m wondering: is there a state or local level agenda that would advance organizing? And I ask that also because of the success of group like ALEC and pushing the right wing agenda in the states. Could labor envision something similar for its own agenda?
Richard Kahlenberg: I raised that issue about whether we could push the concept of labor organizing as a civil right at the local level—because there are lots of great local statutes protecting against discrimination. Washington, D.C., protects against discrimination on a whole long list of factors that goes way beyond the Civil Rights Act. But my co-author Moshe Marvit said, in terms of labor law, that there is federal preemption, and it would be unlikely to get labor law reform at a local level, even using a civil rights angle. But it seems to me that labor could have a huge role in promoting living wage initiatives, better health care, better housing, and that would help build these bridges with other progressive organizations, and actually could be in the narrow self-interest of labor in the sense that people would start to understand labor and get to know what it’s about through these coalitions. So I think we need major reform at the federal level but then need to fight another set of battles on the regional level.
Richard Bensinger: I think Rick [Kahlenberg] is correct about legal preemption. But I do think that a lot of answers to this are in a community-based organizing and support of the right to organize. Because although a member of Congress may not be able to get a piece of legislation you want passed, if that member of Congress is a person of good will, and will stand up for the right to organize, their moral authority, holding a company accountable to not threaten and fire people who want to organize a union, not delay it for years and years, I think that can’t be understated, and that, again, the court of public opinion may be stronger than the court of law.
When I organized three decades ago in the mid-‘70s, I was fired, and it took five and a half years for me and my co-workers who were fired with me in an organizing campaign to win our jobs back. That’s an absurdity. It’s no better today. It even may be worse.
The UAW had a campaign to vote, in May of 2004, at the German auto parts place in Gastonia, North Carolina, called Stabilus. The company was just ordered to have a re-run election two months ago. Almost eight years to a month later, all the workers had been laid off. Of the 35 members of the organizing committee, one is still there; 34 had been laid off, fired, or quit. And this is a place where the UAW had 80% on cards that went in the union. The company did everything they could to threaten people, and the worst of all was that most of what they did to threaten people was legal because implied threats under U.S. labor law were allowed. I’m allowed to imply a plant will close if a union comes in by listing all the plants that have closed with unions in the area, you draw your own conclusion. I’m not allowed to say they’ll close, an implicit threat so, you know, all the bad stuff.
It does seem to me, if I was a worker today organizing, what I would ask—we’ve always said that we don’t want to run big organizing drives unless workers take ownership, which is true. Workers have to own a campaign beyond committees, and that’s the heart of an organizing campaign, is that principle of empowerment and ownership. With the workers, they want to challenge their employer, having a simple human right to have a voice in the job. However, if I was a worker today, I would say, “I’m down for this. I’m willing to do this. But is the community going to back us or is the congressperson, the mayor, the city council, or the community leaders, the activists in town, the 99%, are they going to back me?” And I think that’s a critical question, so I think the union almost has to do both, you have to mobilize the workplace and the local community. So even though it may not be easy to figure out a legislative solution, I think your question is a really excellent one because I think that have to really hold politicians accountable on this issue and this should be the litmus test for political support. It would be support on the ground.
Richard Bensinger: A few years ago, I did an some work with the former president of Bethlehem Steel Dick Schubert, who was a Republican. He was a CEO of the American Red Cross and he worked for Bush Sr. He founded the Thousand Points of Light Foundation.
So, we’re kind of an odd couple. Dick had never applauded the union. At Bethlehem Steel, he fought them, but he’s a highly ethical principled person, a religious person, a highly principled person, and thinks—the undersecretary of labor in the Republican administration—thinks that the U.S. labor laws, the NLRB, the NLRA, are fundamentally inherently flawed. He would agree, I believe, with Rick’s analysis, and he believes there should be reforms, so here’s an ethical guy on the other side. He wasn’t for cards, I think. I always thought a card check could be more favorable than an NLRB election, which is an anti-democratic election. But we came up with a system that didn’t speak to the issue of card check versus an election. It spoke to the issue of having a fair democratic election, a process. So we drafted a set of ethical guidelines, called the Ten Ethical Guidelines, and they’re based on an election, a contested election, where the employer has the right to speak up, but the union gets equal time. The employer can give the 37-minute meeting against the union, the union can come in and have a 37-minute; the employer can show anti-videos all day on their internal monitor, the union can show anti-videos. If the employer can conduct hundreds or thousands of one-on-ones, then the union has the right to come in and conduct one-on-ones. If the employer doesn’t want to give the union the right, then it should not force people to come hear their messages in mandatory meetings and so-called education sessions. So it’s nothing more than an election exactly like you would run for mayor.
I don’t think we ever published it; we simply went around and talked to companies and unions off the record and the major Fortune 500 companies, well-known companies, just asking what they thought of this. What was fascinating was is many, many corporations told Dick and I that they do think these principles are much more fair than the NLRB election, and they liked it because they felt it wasn’t a card check and it was an election. I mean, there’s nothing anti-democratic about card check, if you don’t want to do card check. There’s nothing wrong with it. In fact, card check in ways can be harder because you have to get a majority of eligible rather than majority of voting.
Dick is not pro-union. Dick has said if a union came to organize a business he was associated with, he would oppose unionization.
Amy Dean: I’ve always felt that the issue of fairness is one that resonates with Americans. That’s such a smart angle to come at it from. And I remember you, Richard Bensinger, early on talking about: why does the right to vote stop at the gates and the shop floor or the office building? Why was the shelf life so short on that in the labor movement?
Richard Bensinger: That’s a really good question. I don’t know. I guess it’s hard. I mean, it’s really hard to organize a union. It’s really a hard thing to do. It takes courage from workers who take courage from union leaders, these campaigns take a long time and they’re expensive. It’s a hard thing for workers to do. It’s a hard for unions to do. But I still believe today even maybe more so in the level of disgruntlement in society that if unions don’t organize now we’re missing a golden opportunity.
Just because the political climate appears sometimes so repressive, it’s also repressive for workers out there who have no access to middle class. And so this is an opportunity, and without naming them, I think that some facilities ten years ago, and the last couple of years—there’s much more interest in the union today, much more interest than it was before.
But I was going to say, one thing about these principles is the UAW did adopt these versions of these principles. They wrote a set of principles that they challenged the transnational auto companies to sign that are based off Dick’s and our principles, which takes courage on their part because—what Bob King has said is that, if it’s a fair election and we lose, we’ll shake hands with the company and that will be the end of it.
And so he has really challenged the companies to do nothing more than have an election like we have in the rest of society. And I think, Amy, you’re right. It’s the right way to frame the issue, because 95% of American public are with us.
I’ve been doing work with AFSCME. It was really a few years back in Oklahoma where AFSCME went into towns. The issue was local. It was public sector workers and government workers where AFSCME was doing really smart organizing in towns like Wellston and Enid, and in little conservative towns all over Oklahoma, and they were heavily Republican. And AFSCME framed this in a smart way. What they said was it’s about freedom, and that was their slogan. And it was smart because we had a lot of political support from even Republicans and places like Enid who said, I don’t like how unions have impacted their business in the last few years, but I have fought in the war for the right of people to be in the unions, for right of people to live in a democracy. And even though I don’t particularly like unions, I do support the right of our city workers that had one if they choose to have one. I might not vote for one, but they should certainly have the right to vote for one, free of any interference from us and any threats or fears, or retaliation or anything.
I think there’s a huge support when the issue is framed right. I think the American people—and these are good people like anybody else. And I think if we frame the issue right, then I think we win overwhelmingly on that.
Amy Dean: I want to go back to the civil rights question. Why not argue for freedom of association as opposed to labor and civil rights? I mean freedom of association is a basic premise in the Constitution. It’s de Tocqueville, not Marx. It’s a basic fundamental building block to democracy that people have the right to align themselves with like interests and to enter into advancing those like-minded interests. If you can’t have that basic right, democracy really has been impeded. Why not make that the case as opposed to labor and civil rights?
Richard Kahlenberg: I think the two are closely related. What you’re articulating is really a kind of a civil liberties argument, arguing that in the First Amendment there is a right to freedom of association. I think that’s very closely connected to what we’re advocating, which is that the Civil Rights Act has, in the past, taken parts of the Constitution which apply to the states and to the federal government and applied them to the private sector. In the case of the Fourteenth Amendment, it prohibits discrimination based on race. That applies to state governments and under the 1964 Civil Rights Act, the Fourteenth Amendment was essentially applied to the private sector. And we’re arguing for the same sort of logic, that the First Amendment right of association should be applied to the Civil Rights Act for the private sector.
Technically, that’s already been done under the National Labor Relations Act, because there is a right to organize that’s supposed to be legally protected and it’s just that the remedies are as Richard was describing before. It takes years for people to get a proper remedy, and when they do, you know, they’re given back wages, which are mitigated by whatever they’ve earned in the meantime. Thomas Geoghegan has said that it’s only the economically irrational firm that wouldn’t break the law, given that the penalties are so weak.
So the notion here is to kind of marry civil rights and civil liberties. The reason we use the words civil right is that people understand that. They understand that you shouldn’t be discriminated based on certain factors, and race is the paradigmatic factor, but they also get that if you’re doing a good job at work and you’re showing up, and you are doing what you’re asked to do every day, that you shouldn’t be fired or otherwise disciplined for this extraneous reason.
The bigger pushback that we’ve gotten from some elements of the labor movement is that we’re emphasizing individual rights, whereas, the labor movement, historically, is about solidarity and collective rights. And believe me, I’m a big advocate of collective rights, which is why I care about the fate of labor. But in this country, that is not what appeals to people. We’re highly individualistic and people believe in rights and that’s why we think it makes sense to amend the Civil Rights Act, which has very tough penalties for those who break the law.
Amy Dean: Does making the civil rights demand help us politically, in terms of organizing, and if it does, how?
Richard Bensinger: As someone who was fired for organizing, I got almost no back pay. I got a couple of thousand dollars after almost six years, because this was saying that, you know, they deduct from your back pay what I earned in the interim. So if you earn this much, you get nothing—there’s actually no penalty on employer. The NLRA is a joke, it’s just silly. Even in people in the employers’ community kind of laugh about it when they’re kind off the record with me, talking about how it’s a great law for American business.
I’m going to a conference in Mississippi where one of the items on the agenda is merging the civil rights and labor rights and thinking about a fair economy. However, Amy, I agree with you that this is fundamentally a question of the fundamental right of freedom of speech and freedom of association. It’s a First Amendment right, and it’s the right to freely decide whether to unionize is a fundamental right of freedom of speech and association. I think it’s a human rights fight. It’s a global human rights fight, the right to organize. I think it’s a civil rights fight. And I also think in talking about it in this country, it’s truly is a right of freedom association and freedom of speech.
Amy Dean: But why not just fight for stronger penalties to the NLRA? What’s the difference between that and this civil rights agenda?
Richard Kahlenberg: Well, I would say two things. One is that I’m in complete agreement with the two of you that this is a fundamental human right. It is directly connected to freedom of speech. But the reason I argue for going beyond that and talking about it in terms of civil rights is that that’s what EFCA—the Employee Free Choice Act—was about. It was about free choice. And obviously, it didn’t prevail. It seems to me that part of the reason is that it was able to be described as a fight between two special interests. You had labor on the one side and business on the other, and they were fighting over who would have the edge and it was complicated and people didn’t get passionate about it.
The civil rights movement is really the iconic movement in this country. Obama talks about it all the time, and students understand it, and it’s connected to stopping abuses by employers. So to my mind, that’s why the civil rights framework works best. I agree this is also a human right, but from my understanding, the pulling on that suggests that people think of human rights as something that need to be protected abroad. You know, it’s in other countries, and in this country, we need to protect our civil rights. And so that’s why I think this particular framing could be more powerful.
Amy Dean: I want to wrap up with two final questions. EFCA always seemed to me that, should it have passed, should we have been successful, then the demands that we’re making with EFCA would have helped to create a more favorable organizing environment for employees in traditional employment relationships. In other words, the employees that would be employed working under one roof, as opposed to working for an employer and spread across the world or and having multiple employers of record, which is something that you’ve seen in a lot of these high-tech companies. So, the first question is, would EFCA have done anything to expand the reach to cover workers whose employment issues just did not exist at the time of the NLRA? Would EFCA address any of that?
Richard Kahlenberg: I’ll defer to Richard Bensinger on this one. That’s a good question.
Richard Bensinger: You mean like temporary workers, or agency workers, or part time or contract workers?
Amy Dean: Yes.
Richard Bensinger: Really, EFCA, despite the employer community trying to paint it as something it wasn’t, was an incredibly modest piece of legislation. It wouldn’t have been the answer to labor’s problems, and it wouldn’t have been the end of the world like employers said. We didn’t do a good job in that debate of explaining what is wrong with the current law, and I don’t think EFCA really would have addressed the issues you’re raising.
But I think the labor movement can. And this is why, even with EFCA, even with the great law or whatever we get, employers will always figure out how to adjust to whatever law there is. The creativity in organizing that we’ve seen over decades, the beginning of labor movement and current experiments—the creativity changing with the times, listening to voices of young people, of new workers, of other types of workers—that’s what makes sense because maybe a virtual union does make sense. There certainly is this social media and new media, and union campaigns, I think, are beginning to consider using them. And I think that this is a changed world. It’s a changed world, as you point out, and really, so much of the workers are contract workers in this economy, and I think no law was going to solve that. It’s going to be up to unions to figure out how to be relevant to those workers.
And I don’t even think it’s that hard to do. People care about what they do during work. It’s the biggest self-interest issue there is. We just have to be responsive as a labor movement and commit our time and energy, and focus and resources to thinking of new ways of organizing, and learn from other movements, like the Occupy movement, or look back into the civil Rights movement, or look at other movements globally, or think of something new that no one thought of before. That’s what a lot of people are doing today.
What we see is so interesting with new media, new ways of talking to people. There never will be a substitute for old-fashioned relational politics, one on one. You’ve got to be careful of creating something that’s just style over substance, it’s just a fancy looking Internet ad or website. But I do think there are all new ways to people relating on that. I think social media is a really good equalizer for unions, because it gives us access to literally tens of millions, or hundreds of millions of people. That sort of levels the playing field for workers, even in small enterprises.
But it just seems to me there’s so much opportunity now, even in small businesses, whether it’s a restaurant or automotive repair chains. It seems to me that these companies are in many ways living on borrowed time, because if you talk to their employees and get them away from the company, it’s incredible the level of dissatisfaction. But it’s up to the labor movement. It’s up to non-union workers themselves to figure out together on a case by case basis what are new ways of organizing and what are some old ways that might work if we just recommit ourselves to it.
Amy Dean: And, my second question, for Richard Kahlenberg, how does making labor rights into civil rights address this sticky problem of who is the employer of record? It seems to me that one of the brilliant moves that industry made over the last ten or twelve years—maybe even longer, maybe twenty years—is just really to convolute who is the employer. And so often what happens in cases where there is a union organizing going on, it’s not clear who’s accountable.
Richard Kahlenberg: Well, there’s more that needs to be done. I think the big picture here is that the National Labor Relations Act passed in 1935. So you saw the exclusion of agriculture rural workers, of supervisors, of public employees. And the Civil Rights Act, which was passed in 1964, is a step forward, right? So it includes agricultural laborers, and public employees, and supervisors. One of the important ways in which work has changed is that you want input from employees in making decisions, and so then that muddies the water on who’s the supervisor. This 1964 Civil Right Act addresses many of the problems of the 1935 National Labor Relations Act in terms of how work has changed by including these categories that I mentioned—agricultural, and supervisors, and public employees. Your point is a correct one—that any amendments would need to incorporate additional ways in which work has changed and be updated.
Richard Bensinger: Just one thing on that. NLRB has almost no relevance to a worker that wants to organize. The National Labor Relations Board, it doesn’t matter who runs it. We make a big deal about whether it’s Republicans or Democrats. Certainly, it’s better when Obama has appointees. But it’s a miniscule difference, because the fundamental problem is the framework itself that employers have so dominated the process, and that doesn’t change, whoever who runs it. Sometimes we just get confused, I think, and we forget to adjust for a non-union worker, we have an obligation to give them a fair choice. This law is irrelevant. If anything, it’s an obstacle. I mean, it just doesn’t speak to a modern economy, it doesn’t speak to whether it’s contract workers, it doesn’t speak to regular workers either. It’s just so fundamentally flawed.
Even we in the labor movement tend to forget that there are really two sides of the NLRB. One side, for workers that have existing unions—that side does pretty good. I mean, if employers fail to bargain, they can charge the company with the failure to bargain. If they walk away from the negotiating table or bargain in bad faith and they make a unilateral change or section 885 violation, really, it doesn’t work that poorly. But that speaks to protecting the rights of already organized members, and the NLRB does do a good job on that. And NLRA really speaks fairly well for those people, if not perfectly.
But when it comes to speaking to the issue of non-union workers, it’s a whole different story. It’s almost like it should be two agencies, really, and the agency that deals with non-union workers, the one deals with the worker at Stabilus and says, eight years, okay, they were wrong, and eight years later we’ll vote it again, even on 95%, and you don’t even work here anymore, well, it’s an absurdity to continue to do that, and it’s really doing a disservice to good people—to workers in the non-union sector not to come up with more creative ways to deal with that.
During all the Republican presidential debates, I heard Newt Gingrich say, “We should abolish the NLRA.” I don’t even think Newt Gingrich really understand how pro-employer the NLRA is today. The NLRA is pro-management, and managers I’ve talked to off the record admitted this to me. It is a law that is sympathetic—because it changed so much over the last seventy-five years. When it comes to non-union workers, it actually helps the business community. When Gingrich said abolish it, I think there are a few people in the corporate board room saying, “Newt, you’re going too far. It’s our law. We should keep it.” And I was tempted to call a press conference and say, “I call on you that one, Newt. I’ll join you in a press conference. Let’s do away with it.”
Amy Dean: I want to ask one last question. I’ve been doing a lot of writing and research about the Occupy Our Homes Movement, and I find it could be a fascinating movement on so many different fronts, particularly fact that there’s been some just really innovative work done where organizers have been able to take sort of the individual crisis of a person losing their home and turn it into something bigger that does engage sort of the community in fighting back. I find that fascinating. There has also been an enormous amount of collaboration among groups that have been doing anti-foreclosure work for so many decades and now, somehow, informally, people are networking into sort of a national collection of organizations called Occupy Our Homes, shining the national limelight on local fights. And I find it to be some of the more exciting stuff going on right now in the country. So I’m wondering from both of you, what can the labor movement learn from the Occupy Our Homes Movement?
Richard Bensinger: I would say a lot. When it’s Bank of America versus an individual having their homes stolen from them, Bank of America loses and the working person wins. And it’s the same in union organizing. This is fundamentally not a fight about the AFL-CIO or the Steel Workers, or UAW, or CWA. It’s a fundamental right, but where the group of people at a workplace are being allowed to decide free of fear and threats, and interference whether or not they’re going to have a union. And when employers stop them from having that fundamental right that if we simply explain what it is that this is a fight versus, you know, this worker versus this CEO running his multinational corporation, I think in this day and age, Occupy saw that we will win because the 99% are with us and the 1% are with them.
So if we make it a movement, you know, we’re the 94%, I guess—the 94% of people that haven’t been able to exercise the right to organize a union. Only 6% of people really have right in this at the workplace. So, when the 94% are allowed to speak up, they’re going to have a voice, and when the companies come in and try to fight the right to organize, the lesson from Occupy is, make it a movement. Tell the story for what it is. You don’t have to embellish it. You don’t have to exaggerate it. You don’t have to have a bunch of media experts talk about it. Just get the workers themselves—as unions have done for the ages—and talk about what the fight is about. And then let people decide whether support the individual employee of this company or whether they’re going to support the CEO. I think that we win on that overwhelmingly, if the issue is framed for exactly as it is.
And so, Occupy rolls up, and it creates this outburst against inequality—global inequality, and inequality in this country. And labor unions speak as much as any institutions to the issue of the global economy. So we suddenly have a PR machine of 99% of the American people with us. All we have to do is tell the story accurately and engage workers, and try to help them organize and that’s all we have to do.
Richard Kahlenberg: I agree completely with what Richard has just said, that the paradox here is that Occupy, Wall Street, and the labor movement are collective efforts. And yet, what drives people is those individual stories: an individual up against Bank of America, an individual employee who is cut off at the knees because he’s trying to organize a union. And I think that the labor movement will be in a much better shape if it can realize that it can advance the collective notion by appealing to individual rights.
Richard Bensinger: One last thing. I’ve always said that that cause of the underdog, the David versus Goliath of workers, simply taking a stand against a giant corporation or a small corporation, whichever, is a cause that, I think, people naturally gravitate to. I don’t think people gravitate toward wealth. They gravitate toward fairness. And I’ve been interviewing a lot of people just in the general workplaces over the years. I’ve been asking them, do you want to be rich in different industries? What do you want to be? And it’s just amazing. People don’t want to be rich. Everybody just wants to be allowed to have their life, own a house and have a life. You know, Mitt Romney may want to be a multimillionaire, but most people don’t. But they do want the right to have some dignity at the job, and people overwhelmingly believe that. So, it’s not even a question of unions as institutions. It’s a question of workers, the working people and what they’re going to be allowed to do or not to do at the workplace.
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Amy B. Dean is a fellow at The Century Foundation and the principal of ABD Ventures, LLC. She is coauthor (with David B. Reynolds) of A New, New Deal: How Regional Activism Will Reshape the American Labor Movement, a Century Foundation Book (Cornell University Press, 2009). From 1993 to 2003, she served as president and CEO of the South Bay AFL-CIO Labor Council.
Richard Bensinger is an author, American labor activist, and labor consultant known for his advocacy of expanded organizing efforts. He is the founder of the Organizing Institute and was the first organizing director of the AFL-CIO. He is currently the acting organizing director for the United Auto Workers union.
Richard D. Kahlenberg is a senior fellow at The Century Foundation and writes about education, equal opportunity, and civil rights. He is the author (with Moshe Z. Marvit) of Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice (The Century Foundation Press, 2012).
Tags: unions
Rebuilding the Labor Movement
This is a transcript of a conversation, taped May 9, 2012, featuring Century Foundation fellow Amy Dean, Century Foundation senior fellow Richard D. Kahlenberg, and Richard Bensinger, acting organizing director for the United Auto Workers union. A version was printed on Truthout.org.
Download a printable PDF version.
See video from our recent The Future of Labor Organizing event. Dean and Kahlenberg continued this conversation with Ai-jen Poo of National Domestic Workers Alliance.
Amy B. Dean is a fellow at The Century Foundation and the principal of ABD Ventures, LLC. She is coauthor (with David B. Reynolds) of A New, New Deal: How Regional Activism Will Reshape the American Labor Movement, a Century Foundation Book (Cornell University Press, 2009). From 1993 to 2003, she served as president and CEO of the South Bay AFL-CIO Labor Council.
Richard Bensinger is an author, American labor activist, and labor consultant known for his advocacy of expanded organizing efforts. He is the founder of the Organizing Institute and was the first organizing director of the AFL-CIO. He is currently the acting organizing director for the United Auto Workers union.
Richard D. Kahlenberg is a senior fellow at The Century Foundation and writes about education, equal opportunity, and civil rights. He is the author (with Moshe Z. Marvit) of Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice (The Century Foundation Press, 2012).
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Amy Dean: So let me just give a quick frame for this, and then we’ll launch in. The question is, broadly speaking, are there reforms that can rebuild labor’s role as a legitimate steward in the economy, and can we even be thinking about Washington being the focus for that? I know a lot of these questions won’t be new to Richard Bensinger, and that you’ve been for decades thinking about this stuff and advocating for different kinds of strategies. But now that the election is almost here, I want to talk a little about what labor should expect from Democrats. So the first question is, does Washington even really matter for our organizing?
Richard Kahlenberg: I think Washington still does have a role, an important role in the sense that our labor laws need to come from Washington. The National Labor Relation Act preempts state regulations in the area of labor law, and we have a completely dysfunctional statute. Tom Geoghegan and Moshe Marvit and I have outlined in a new book, Why Labor Organizing Should Be a Civil Right, an alternative vision for trying to provide a genuine right to organize in this country.
Labor has been backing the Employee Free Choice Act, which I also support, but it’s pretty much dead now, and it seems to me that President Obama could really show his support for labor and energize labor if he were to get behind the notion of amending the Civil Rights Act of 1964, which now protects people from discrimination based on race and gender, national origin, and the like. Add to that the idea that you shouldn’t be discriminated against simply for exercising your right to join a union and trying to become a member of the middle class. It’s a much simpler proposition than the Employee Free Choice Act, which dealt with a number of very important issues that were complex in nature and allowed opponents of the act to exploit the misunderstandings about what it was designed to do. And so, we think getting across the basic idea that people have a civil right to organize, and that they shouldn’t be fired or otherwise disciplined for exercising that right, is one that Washington could play a big role in supporting.
Amy Dean: Right now, as I see it, the labor movement strings together or knits together a sort of long laundry list of legislative priorities in the next Congress and calls that labor’s agenda. Prospective candidates that come up before the labor movement for endorsement are often confronted with this long list, which equals what labor wants in this next Congress. The question I have is, is that good enough for our labor needs, some kind of federal legislative agenda? If so, what ought that to be?
Richard Bensinger: Well, I think that everyone in the country, and really, in the world, talking about income inequality and the destruction of the middle class in this country and globally, they look to a union like the UAW probably as much as anything, as it helped to build the middle class in the ‘30s and ’40s. And so before I look at the issue of the 99% and the 1%, it’s impossible to fully address that issue without making the right to organize a union central to the debate.
There’s not going to be income equality in this country, or any country, unless there’s a vibrant labor movement. In some cases in this country, the threat of a union used to make some employers honest, and now that unions are down to only 6% of the private sector, even the threat of unions has been diminished greatly. So I think that there has to be a federal policy, and I think it should be a top priority of unions and any administration to try to reform the labor laws.
But at the same time, as we’ve always said, a movement creates legislation, not the other way around, so we can’t wait to organize—labor leaders have been saying that the last couple of decades. I think they’re right. We have to organize ourselves now in order to really ever achieve any legislation. And I think the labor laws are bad, and we should probably say what’s wrong with them. I mean, Human Rights Watch said that—I believe that the labor laws in the United States are the worst under which employees organize globally, or one of the worst. And the UN has global standards which are far superior to the National Labor Relations Act. And so the NLRA really acts as a hurdle or an obstacle to organizing unions today, and not a vehicle to achieve them, which it was originally set up to be.
Amy Dean: What I find so interesting is that, on the one hand, we have the whole language around the 99% and the fact that economic inequality is front and center on the national agenda, which for those of us who had been around for a while, it’s pretty extraordinary. And yet, I don’t hear anything about labor as a solution to this problem.
Richard Kahlenberg: It’s a huge omission. If you look at the decline in the percentage of union density in this country and track it against the decline and the proportion of income going to the middle class, the lines are almost perfectly squared. The fact that labor has largely collapsed in the private sector is directly related to our rising income inequality. The Economic Policy Institute has a figure that shows the increases in productivity over time and what proportion of those gains have gone to workers. And when labor was strong, those two lines coincided, and then they diverged when labor became greatly weakened, so that the top 1% has captured all the productivity gains in the last two decades. So, I agree with Richard [Bensinger] that there is no way to address our nation’s income inequality without talking about labor as a central part of the solution.
Amy Dean: It just seems so strange to me that [with Occupy] we’ve got this growing movement, but activists are not seeming to raise labor as a viable solution or even a viable partner in this sort of broader movement for economic justice that’s captured the 99%.
Richard Bensinger: I have visited the number of the Occupy sites around the country in different cities, in New York, in Tennessee, in Mississippi. I think there is a lot of conversation, at least amongst the people occupying about unions, a lot of education too because unions have been forced so far outside the mainstream. A lot of young people are disconnected from it. It’s not like they don’t like unions. It’s not relevant to them. But, at the same time, there are organizing campaigns on the ground. We’re finding young people on the leadership.
When you pose the question to people in this economy today, I think workers have this very, very favorable view of having an organization, having a union, even more favorable, I think, than in other time periods in my career, which is now getting pretty long. And I think one of the reasons is that the companies are taking advantage of the poor unionization, the lack of a threat of unions—and a weak labor law, frankly—to pay people less, treat people worse, and there’s an arrogance, I think, in how the employer community treats people today. And so I think there’s an opportunity for unions to step in and organize now in both manufacturing and then the economy is hugely service sector and that’s been a de-unionized, you know, a mostly de-unionized sector. And the only reason the service sector pays less is because it’s never been historically unionized. It’s no reason it shouldn’t be as it is in other countries, but it all does come back to two things: a commitment of unions to organize, and what’s wrong with the federal labor laws.
Amy Dean: There’s always been attention among organizers in the labor movement about whether or not we should spend any of our efforts around electoral strategy. And it seems to be a bigger conversation now, even within the sort of 99% Spring that took place this April, in the debate about whether or not electoral politics matters, and whether we should be involved. At the same time, whether we agree or don’t agree that we should be involved, the fact is that the labor movement spends millions and millions of dollars to elect candidates every year. I’ve always felt as someone, for many years in labor movement it’s sort of Pavlovian, you got back what you asked for with them. It’s not much more complicated than that. Maybe I oversimplify it, but you know, you get what you ask for, and so long as you are clear about what you’re asking for, it’s easier to say, “I’ve given you this and haven’t given you that, but I’ve given you enough.” And so I guess the question is, you know, labor isn’t going to stop spending millions of dollars on raises. And so what should we be expecting from candidates that labor throws its weight behind, in terms of resources and people power?
Richard Kahlenberg: I think, at a minimum, labor should be asking if those candidates who are seeking labor support would get behind legislation to ensure the survival of the labor movement in this country. I mean, we’ve gone from one-third of the private sector being organized to 6.9%. You know, if these trends continue, there won’t be a labor movement in this country. It’s a matter of survival.
Amy Dean: The labor movement argues it’s doing that.
Richard Kahlenberg: Yes. I think they should ask for support and that the labor movement needs to start rethinking strategies of what sort of reform we might have that people can understand. Richard mentioned the appeal to young people and that’s going to be vital in any effort to get legislative change. And young people understand the civil rights movement. They are excited by the civil rights movement. They’re taught about it at school. The Albert Shanker Institute released a report not long ago which found that labor history is not taught in the school and when it is taught, it’s not taught well. And so if labor wants to be relevant, I think it has to reframe the way we think about labor organizing and labor rights and connect it to the excitement of the civil rights movement. And if labor can ask for that sort of reform, then maybe there’s a chance we’ll actually see action.
Richard Bensinger: Well, we all get frustrated with the lack of political change, and I’m a union organizer, not a political organizer, so that’s my expertise, but I think Amy, you said it well in your question: if we don’t make organizing a number one priority always, no one else will, and we’re doing a disservice for the country if we don’t. Labor in the last few years has done a better job, I think, of trying to mobilize and prioritize organizing, which is a good thing.
Take the auto industry, for example. Chrysler wouldn’t exist today if Mitt Romney had been president. It’s a no-brainer that Barack Obama has supported the industry and supports union organizing, and all of that, but having said that, it still is true. I think it’s a false dichotomy, organizing versus pop electoral politics, but you do need both. But my heart has always been in the organizing, not in the legislative end. My heart has always desired and craved a labor law reform bill, which periodically every few decades we get within a couple of votes on.
But even if we got a labor reform bill, employers are always going to fight unions. It’s never going to be easy, but we should, at least, achieve a minimum legal standard, do the same as other countries have done. In Germany, if you want to organize a union, one person can sign a union card that the union is recognized. In this country, federal labor laws do not protect workers who organize, period. And there are really no penalties, only remedies. There are no penalties when employers fire, or threaten, or intimidate people who want a union, so there’s no fairness in the NLRB election process. When it comes to NLRB, I think employers are not really that concerned about the court of law, but the good news is employers are very concerned about the court of public opinion, which is even stronger, and that’s, again, what the Occupied movement shows. We don’t have to wait to organize to get legislative change in the United States, because I think corporate America has reason to be very worried about a growing movement around the world to have a fair and just economic policy.
Amy Dean: I want to just go back to legislative piece, even though I know that’s not where everybody’s heart lies. You guys know my biases: I don’t think there’s the political space and the will for anything innovative at the federal level, and my life’s work has been at the regional level, defined as sort of bigger than a city, smaller than a state. So I’m wondering: is there a state or local level agenda that would advance organizing? And I ask that also because of the success of group like ALEC and pushing the right wing agenda in the states. Could labor envision something similar for its own agenda?
Richard Kahlenberg: I raised that issue about whether we could push the concept of labor organizing as a civil right at the local level—because there are lots of great local statutes protecting against discrimination. Washington, D.C., protects against discrimination on a whole long list of factors that goes way beyond the Civil Rights Act. But my co-author Moshe Marvit said, in terms of labor law, that there is federal preemption, and it would be unlikely to get labor law reform at a local level, even using a civil rights angle. But it seems to me that labor could have a huge role in promoting living wage initiatives, better health care, better housing, and that would help build these bridges with other progressive organizations, and actually could be in the narrow self-interest of labor in the sense that people would start to understand labor and get to know what it’s about through these coalitions. So I think we need major reform at the federal level but then need to fight another set of battles on the regional level.
Richard Bensinger: I think Rick [Kahlenberg] is correct about legal preemption. But I do think that a lot of answers to this are in a community-based organizing and support of the right to organize. Because although a member of Congress may not be able to get a piece of legislation you want passed, if that member of Congress is a person of good will, and will stand up for the right to organize, their moral authority, holding a company accountable to not threaten and fire people who want to organize a union, not delay it for years and years, I think that can’t be understated, and that, again, the court of public opinion may be stronger than the court of law.
When I organized three decades ago in the mid-‘70s, I was fired, and it took five and a half years for me and my co-workers who were fired with me in an organizing campaign to win our jobs back. That’s an absurdity. It’s no better today. It even may be worse.
The UAW had a campaign to vote, in May of 2004, at the German auto parts place in Gastonia, North Carolina, called Stabilus. The company was just ordered to have a re-run election two months ago. Almost eight years to a month later, all the workers had been laid off. Of the 35 members of the organizing committee, one is still there; 34 had been laid off, fired, or quit. And this is a place where the UAW had 80% on cards that went in the union. The company did everything they could to threaten people, and the worst of all was that most of what they did to threaten people was legal because implied threats under U.S. labor law were allowed. I’m allowed to imply a plant will close if a union comes in by listing all the plants that have closed with unions in the area, you draw your own conclusion. I’m not allowed to say they’ll close, an implicit threat so, you know, all the bad stuff.
It does seem to me, if I was a worker today organizing, what I would ask—we’ve always said that we don’t want to run big organizing drives unless workers take ownership, which is true. Workers have to own a campaign beyond committees, and that’s the heart of an organizing campaign, is that principle of empowerment and ownership. With the workers, they want to challenge their employer, having a simple human right to have a voice in the job. However, if I was a worker today, I would say, “I’m down for this. I’m willing to do this. But is the community going to back us or is the congressperson, the mayor, the city council, or the community leaders, the activists in town, the 99%, are they going to back me?” And I think that’s a critical question, so I think the union almost has to do both, you have to mobilize the workplace and the local community. So even though it may not be easy to figure out a legislative solution, I think your question is a really excellent one because I think that have to really hold politicians accountable on this issue and this should be the litmus test for political support. It would be support on the ground.
Richard Bensinger: A few years ago, I did an some work with the former president of Bethlehem Steel Dick Schubert, who was a Republican. He was a CEO of the American Red Cross and he worked for Bush Sr. He founded the Thousand Points of Light Foundation.
So, we’re kind of an odd couple. Dick had never applauded the union. At Bethlehem Steel, he fought them, but he’s a highly ethical principled person, a religious person, a highly principled person, and thinks—the undersecretary of labor in the Republican administration—thinks that the U.S. labor laws, the NLRB, the NLRA, are fundamentally inherently flawed. He would agree, I believe, with Rick’s analysis, and he believes there should be reforms, so here’s an ethical guy on the other side. He wasn’t for cards, I think. I always thought a card check could be more favorable than an NLRB election, which is an anti-democratic election. But we came up with a system that didn’t speak to the issue of card check versus an election. It spoke to the issue of having a fair democratic election, a process. So we drafted a set of ethical guidelines, called the Ten Ethical Guidelines, and they’re based on an election, a contested election, where the employer has the right to speak up, but the union gets equal time. The employer can give the 37-minute meeting against the union, the union can come in and have a 37-minute; the employer can show anti-videos all day on their internal monitor, the union can show anti-videos. If the employer can conduct hundreds or thousands of one-on-ones, then the union has the right to come in and conduct one-on-ones. If the employer doesn’t want to give the union the right, then it should not force people to come hear their messages in mandatory meetings and so-called education sessions. So it’s nothing more than an election exactly like you would run for mayor.
I don’t think we ever published it; we simply went around and talked to companies and unions off the record and the major Fortune 500 companies, well-known companies, just asking what they thought of this. What was fascinating was is many, many corporations told Dick and I that they do think these principles are much more fair than the NLRB election, and they liked it because they felt it wasn’t a card check and it was an election. I mean, there’s nothing anti-democratic about card check, if you don’t want to do card check. There’s nothing wrong with it. In fact, card check in ways can be harder because you have to get a majority of eligible rather than majority of voting.
Dick is not pro-union. Dick has said if a union came to organize a business he was associated with, he would oppose unionization.
Amy Dean: I’ve always felt that the issue of fairness is one that resonates with Americans. That’s such a smart angle to come at it from. And I remember you, Richard Bensinger, early on talking about: why does the right to vote stop at the gates and the shop floor or the office building? Why was the shelf life so short on that in the labor movement?
Richard Bensinger: That’s a really good question. I don’t know. I guess it’s hard. I mean, it’s really hard to organize a union. It’s really a hard thing to do. It takes courage from workers who take courage from union leaders, these campaigns take a long time and they’re expensive. It’s a hard thing for workers to do. It’s a hard for unions to do. But I still believe today even maybe more so in the level of disgruntlement in society that if unions don’t organize now we’re missing a golden opportunity.
Just because the political climate appears sometimes so repressive, it’s also repressive for workers out there who have no access to middle class. And so this is an opportunity, and without naming them, I think that some facilities ten years ago, and the last couple of years—there’s much more interest in the union today, much more interest than it was before.
But I was going to say, one thing about these principles is the UAW did adopt these versions of these principles. They wrote a set of principles that they challenged the transnational auto companies to sign that are based off Dick’s and our principles, which takes courage on their part because—what Bob King has said is that, if it’s a fair election and we lose, we’ll shake hands with the company and that will be the end of it.
And so he has really challenged the companies to do nothing more than have an election like we have in the rest of society. And I think, Amy, you’re right. It’s the right way to frame the issue, because 95% of American public are with us.
I’ve been doing work with AFSCME. It was really a few years back in Oklahoma where AFSCME went into towns. The issue was local. It was public sector workers and government workers where AFSCME was doing really smart organizing in towns like Wellston and Enid, and in little conservative towns all over Oklahoma, and they were heavily Republican. And AFSCME framed this in a smart way. What they said was it’s about freedom, and that was their slogan. And it was smart because we had a lot of political support from even Republicans and places like Enid who said, I don’t like how unions have impacted their business in the last few years, but I have fought in the war for the right of people to be in the unions, for right of people to live in a democracy. And even though I don’t particularly like unions, I do support the right of our city workers that had one if they choose to have one. I might not vote for one, but they should certainly have the right to vote for one, free of any interference from us and any threats or fears, or retaliation or anything.
I think there’s a huge support when the issue is framed right. I think the American people—and these are good people like anybody else. And I think if we frame the issue right, then I think we win overwhelmingly on that.
Amy Dean: I want to go back to the civil rights question. Why not argue for freedom of association as opposed to labor and civil rights? I mean freedom of association is a basic premise in the Constitution. It’s de Tocqueville, not Marx. It’s a basic fundamental building block to democracy that people have the right to align themselves with like interests and to enter into advancing those like-minded interests. If you can’t have that basic right, democracy really has been impeded. Why not make that the case as opposed to labor and civil rights?
Richard Kahlenberg: I think the two are closely related. What you’re articulating is really a kind of a civil liberties argument, arguing that in the First Amendment there is a right to freedom of association. I think that’s very closely connected to what we’re advocating, which is that the Civil Rights Act has, in the past, taken parts of the Constitution which apply to the states and to the federal government and applied them to the private sector. In the case of the Fourteenth Amendment, it prohibits discrimination based on race. That applies to state governments and under the 1964 Civil Rights Act, the Fourteenth Amendment was essentially applied to the private sector. And we’re arguing for the same sort of logic, that the First Amendment right of association should be applied to the Civil Rights Act for the private sector.
Technically, that’s already been done under the National Labor Relations Act, because there is a right to organize that’s supposed to be legally protected and it’s just that the remedies are as Richard was describing before. It takes years for people to get a proper remedy, and when they do, you know, they’re given back wages, which are mitigated by whatever they’ve earned in the meantime. Thomas Geoghegan has said that it’s only the economically irrational firm that wouldn’t break the law, given that the penalties are so weak.
So the notion here is to kind of marry civil rights and civil liberties. The reason we use the words civil right is that people understand that. They understand that you shouldn’t be discriminated based on certain factors, and race is the paradigmatic factor, but they also get that if you’re doing a good job at work and you’re showing up, and you are doing what you’re asked to do every day, that you shouldn’t be fired or otherwise disciplined for this extraneous reason.
The bigger pushback that we’ve gotten from some elements of the labor movement is that we’re emphasizing individual rights, whereas, the labor movement, historically, is about solidarity and collective rights. And believe me, I’m a big advocate of collective rights, which is why I care about the fate of labor. But in this country, that is not what appeals to people. We’re highly individualistic and people believe in rights and that’s why we think it makes sense to amend the Civil Rights Act, which has very tough penalties for those who break the law.
Amy Dean: Does making the civil rights demand help us politically, in terms of organizing, and if it does, how?
Richard Bensinger: As someone who was fired for organizing, I got almost no back pay. I got a couple of thousand dollars after almost six years, because this was saying that, you know, they deduct from your back pay what I earned in the interim. So if you earn this much, you get nothing—there’s actually no penalty on employer. The NLRA is a joke, it’s just silly. Even in people in the employers’ community kind of laugh about it when they’re kind off the record with me, talking about how it’s a great law for American business.
I’m going to a conference in Mississippi where one of the items on the agenda is merging the civil rights and labor rights and thinking about a fair economy. However, Amy, I agree with you that this is fundamentally a question of the fundamental right of freedom of speech and freedom of association. It’s a First Amendment right, and it’s the right to freely decide whether to unionize is a fundamental right of freedom of speech and association. I think it’s a human rights fight. It’s a global human rights fight, the right to organize. I think it’s a civil rights fight. And I also think in talking about it in this country, it’s truly is a right of freedom association and freedom of speech.
Amy Dean: But why not just fight for stronger penalties to the NLRA? What’s the difference between that and this civil rights agenda?
Richard Kahlenberg: Well, I would say two things. One is that I’m in complete agreement with the two of you that this is a fundamental human right. It is directly connected to freedom of speech. But the reason I argue for going beyond that and talking about it in terms of civil rights is that that’s what EFCA—the Employee Free Choice Act—was about. It was about free choice. And obviously, it didn’t prevail. It seems to me that part of the reason is that it was able to be described as a fight between two special interests. You had labor on the one side and business on the other, and they were fighting over who would have the edge and it was complicated and people didn’t get passionate about it.
The civil rights movement is really the iconic movement in this country. Obama talks about it all the time, and students understand it, and it’s connected to stopping abuses by employers. So to my mind, that’s why the civil rights framework works best. I agree this is also a human right, but from my understanding, the pulling on that suggests that people think of human rights as something that need to be protected abroad. You know, it’s in other countries, and in this country, we need to protect our civil rights. And so that’s why I think this particular framing could be more powerful.
Amy Dean: I want to wrap up with two final questions. EFCA always seemed to me that, should it have passed, should we have been successful, then the demands that we’re making with EFCA would have helped to create a more favorable organizing environment for employees in traditional employment relationships. In other words, the employees that would be employed working under one roof, as opposed to working for an employer and spread across the world or and having multiple employers of record, which is something that you’ve seen in a lot of these high-tech companies. So, the first question is, would EFCA have done anything to expand the reach to cover workers whose employment issues just did not exist at the time of the NLRA? Would EFCA address any of that?
Richard Kahlenberg: I’ll defer to Richard Bensinger on this one. That’s a good question.
Richard Bensinger: You mean like temporary workers, or agency workers, or part time or contract workers?
Amy Dean: Yes.
Richard Bensinger: Really, EFCA, despite the employer community trying to paint it as something it wasn’t, was an incredibly modest piece of legislation. It wouldn’t have been the answer to labor’s problems, and it wouldn’t have been the end of the world like employers said. We didn’t do a good job in that debate of explaining what is wrong with the current law, and I don’t think EFCA really would have addressed the issues you’re raising.
But I think the labor movement can. And this is why, even with EFCA, even with the great law or whatever we get, employers will always figure out how to adjust to whatever law there is. The creativity in organizing that we’ve seen over decades, the beginning of labor movement and current experiments—the creativity changing with the times, listening to voices of young people, of new workers, of other types of workers—that’s what makes sense because maybe a virtual union does make sense. There certainly is this social media and new media, and union campaigns, I think, are beginning to consider using them. And I think that this is a changed world. It’s a changed world, as you point out, and really, so much of the workers are contract workers in this economy, and I think no law was going to solve that. It’s going to be up to unions to figure out how to be relevant to those workers.
And I don’t even think it’s that hard to do. People care about what they do during work. It’s the biggest self-interest issue there is. We just have to be responsive as a labor movement and commit our time and energy, and focus and resources to thinking of new ways of organizing, and learn from other movements, like the Occupy movement, or look back into the civil Rights movement, or look at other movements globally, or think of something new that no one thought of before. That’s what a lot of people are doing today.
What we see is so interesting with new media, new ways of talking to people. There never will be a substitute for old-fashioned relational politics, one on one. You’ve got to be careful of creating something that’s just style over substance, it’s just a fancy looking Internet ad or website. But I do think there are all new ways to people relating on that. I think social media is a really good equalizer for unions, because it gives us access to literally tens of millions, or hundreds of millions of people. That sort of levels the playing field for workers, even in small enterprises.
But it just seems to me there’s so much opportunity now, even in small businesses, whether it’s a restaurant or automotive repair chains. It seems to me that these companies are in many ways living on borrowed time, because if you talk to their employees and get them away from the company, it’s incredible the level of dissatisfaction. But it’s up to the labor movement. It’s up to non-union workers themselves to figure out together on a case by case basis what are new ways of organizing and what are some old ways that might work if we just recommit ourselves to it.
Amy Dean: And, my second question, for Richard Kahlenberg, how does making labor rights into civil rights address this sticky problem of who is the employer of record? It seems to me that one of the brilliant moves that industry made over the last ten or twelve years—maybe even longer, maybe twenty years—is just really to convolute who is the employer. And so often what happens in cases where there is a union organizing going on, it’s not clear who’s accountable.
Richard Kahlenberg: Well, there’s more that needs to be done. I think the big picture here is that the National Labor Relations Act passed in 1935. So you saw the exclusion of agriculture rural workers, of supervisors, of public employees. And the Civil Rights Act, which was passed in 1964, is a step forward, right? So it includes agricultural laborers, and public employees, and supervisors. One of the important ways in which work has changed is that you want input from employees in making decisions, and so then that muddies the water on who’s the supervisor. This 1964 Civil Right Act addresses many of the problems of the 1935 National Labor Relations Act in terms of how work has changed by including these categories that I mentioned—agricultural, and supervisors, and public employees. Your point is a correct one—that any amendments would need to incorporate additional ways in which work has changed and be updated.
Richard Bensinger: Just one thing on that. NLRB has almost no relevance to a worker that wants to organize. The National Labor Relations Board, it doesn’t matter who runs it. We make a big deal about whether it’s Republicans or Democrats. Certainly, it’s better when Obama has appointees. But it’s a miniscule difference, because the fundamental problem is the framework itself that employers have so dominated the process, and that doesn’t change, whoever who runs it. Sometimes we just get confused, I think, and we forget to adjust for a non-union worker, we have an obligation to give them a fair choice. This law is irrelevant. If anything, it’s an obstacle. I mean, it just doesn’t speak to a modern economy, it doesn’t speak to whether it’s contract workers, it doesn’t speak to regular workers either. It’s just so fundamentally flawed.
Even we in the labor movement tend to forget that there are really two sides of the NLRB. One side, for workers that have existing unions—that side does pretty good. I mean, if employers fail to bargain, they can charge the company with the failure to bargain. If they walk away from the negotiating table or bargain in bad faith and they make a unilateral change or section 885 violation, really, it doesn’t work that poorly. But that speaks to protecting the rights of already organized members, and the NLRB does do a good job on that. And NLRA really speaks fairly well for those people, if not perfectly.
But when it comes to speaking to the issue of non-union workers, it’s a whole different story. It’s almost like it should be two agencies, really, and the agency that deals with non-union workers, the one deals with the worker at Stabilus and says, eight years, okay, they were wrong, and eight years later we’ll vote it again, even on 95%, and you don’t even work here anymore, well, it’s an absurdity to continue to do that, and it’s really doing a disservice to good people—to workers in the non-union sector not to come up with more creative ways to deal with that.
During all the Republican presidential debates, I heard Newt Gingrich say, “We should abolish the NLRA.” I don’t even think Newt Gingrich really understand how pro-employer the NLRA is today. The NLRA is pro-management, and managers I’ve talked to off the record admitted this to me. It is a law that is sympathetic—because it changed so much over the last seventy-five years. When it comes to non-union workers, it actually helps the business community. When Gingrich said abolish it, I think there are a few people in the corporate board room saying, “Newt, you’re going too far. It’s our law. We should keep it.” And I was tempted to call a press conference and say, “I call on you that one, Newt. I’ll join you in a press conference. Let’s do away with it.”
Amy Dean: I want to ask one last question. I’ve been doing a lot of writing and research about the Occupy Our Homes Movement, and I find it could be a fascinating movement on so many different fronts, particularly fact that there’s been some just really innovative work done where organizers have been able to take sort of the individual crisis of a person losing their home and turn it into something bigger that does engage sort of the community in fighting back. I find that fascinating. There has also been an enormous amount of collaboration among groups that have been doing anti-foreclosure work for so many decades and now, somehow, informally, people are networking into sort of a national collection of organizations called Occupy Our Homes, shining the national limelight on local fights. And I find it to be some of the more exciting stuff going on right now in the country. So I’m wondering from both of you, what can the labor movement learn from the Occupy Our Homes Movement?
Richard Bensinger: I would say a lot. When it’s Bank of America versus an individual having their homes stolen from them, Bank of America loses and the working person wins. And it’s the same in union organizing. This is fundamentally not a fight about the AFL-CIO or the Steel Workers, or UAW, or CWA. It’s a fundamental right, but where the group of people at a workplace are being allowed to decide free of fear and threats, and interference whether or not they’re going to have a union. And when employers stop them from having that fundamental right that if we simply explain what it is that this is a fight versus, you know, this worker versus this CEO running his multinational corporation, I think in this day and age, Occupy saw that we will win because the 99% are with us and the 1% are with them.
So if we make it a movement, you know, we’re the 94%, I guess—the 94% of people that haven’t been able to exercise the right to organize a union. Only 6% of people really have right in this at the workplace. So, when the 94% are allowed to speak up, they’re going to have a voice, and when the companies come in and try to fight the right to organize, the lesson from Occupy is, make it a movement. Tell the story for what it is. You don’t have to embellish it. You don’t have to exaggerate it. You don’t have to have a bunch of media experts talk about it. Just get the workers themselves—as unions have done for the ages—and talk about what the fight is about. And then let people decide whether support the individual employee of this company or whether they’re going to support the CEO. I think that we win on that overwhelmingly, if the issue is framed for exactly as it is.
And so, Occupy rolls up, and it creates this outburst against inequality—global inequality, and inequality in this country. And labor unions speak as much as any institutions to the issue of the global economy. So we suddenly have a PR machine of 99% of the American people with us. All we have to do is tell the story accurately and engage workers, and try to help them organize and that’s all we have to do.
Richard Kahlenberg: I agree completely with what Richard has just said, that the paradox here is that Occupy, Wall Street, and the labor movement are collective efforts. And yet, what drives people is those individual stories: an individual up against Bank of America, an individual employee who is cut off at the knees because he’s trying to organize a union. And I think that the labor movement will be in a much better shape if it can realize that it can advance the collective notion by appealing to individual rights.
Richard Bensinger: One last thing. I’ve always said that that cause of the underdog, the David versus Goliath of workers, simply taking a stand against a giant corporation or a small corporation, whichever, is a cause that, I think, people naturally gravitate to. I don’t think people gravitate toward wealth. They gravitate toward fairness. And I’ve been interviewing a lot of people just in the general workplaces over the years. I’ve been asking them, do you want to be rich in different industries? What do you want to be? And it’s just amazing. People don’t want to be rich. Everybody just wants to be allowed to have their life, own a house and have a life. You know, Mitt Romney may want to be a multimillionaire, but most people don’t. But they do want the right to have some dignity at the job, and people overwhelmingly believe that. So, it’s not even a question of unions as institutions. It’s a question of workers, the working people and what they’re going to be allowed to do or not to do at the workplace.
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Amy B. Dean is a fellow at The Century Foundation and the principal of ABD Ventures, LLC. She is coauthor (with David B. Reynolds) of A New, New Deal: How Regional Activism Will Reshape the American Labor Movement, a Century Foundation Book (Cornell University Press, 2009). From 1993 to 2003, she served as president and CEO of the South Bay AFL-CIO Labor Council.
Richard Bensinger is an author, American labor activist, and labor consultant known for his advocacy of expanded organizing efforts. He is the founder of the Organizing Institute and was the first organizing director of the AFL-CIO. He is currently the acting organizing director for the United Auto Workers union.
Richard D. Kahlenberg is a senior fellow at The Century Foundation and writes about education, equal opportunity, and civil rights. He is the author (with Moshe Z. Marvit) of Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice (The Century Foundation Press, 2012).
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