Union Security,Race,and the Political Process: Some Reflections on Unions and Democracy

Introduction

This article focuses upon several issues relating to unions and democracy. First, it discusses the ongoing fight about union security law in the private sector and the more recent disputes about “fair share” agreements in the public sector and the tension between such and a democratic system of workplace governance. Second, it discusses some of the problems that have arisen in connection with a union commitment to fair representation for all whom unions represent in this connection and focuses upon issues of discrimination. Third, it addresses union attempts to promote egalitarian policies in the workplace and the frustration that has arisen for the labor movement as unions have declined and with the decline their influence in both the workplace and society. Finally, it discusses unions in politics and the policies which they have pursued.

The Democratic Assumptions Involved in Labor Law and the Tension with Union Security and “Fair Share” Law

The basis for collective bargaining is predicated upon the idea of representative government, that is, that unions act as majority representatives for all whom they represent. The National Labor Relations Act of 1935, as amended, and the Railway Labor Act of 1926, as well as public sector labor law, are based upon the assumption that workers, like citizens in the political process casting their ballot for a candidate, are to be represented by labor organizations when they obtain majority status in an appropriate unit or grouping of employees. This policy is articulated by the U.S. Supreme Court in J.I. Case Co. v. N.L.R.B., ¹ where it said,

Individual contracts, no matter what the circumstances that justify their execution or what their terms, may not be availed of to defeat or delay the procedures prescribed by the National Labor Relations Act looking to collective bargaining, nor to exclude the contracting employee from a duly ascertained bargaining unit; nor may they be used to forestall bargaining or to limit or condition the terms of the collective agreement . . . [I]t is possible for the collective bargain to prescribe only minimum rates or maximum hours or expressly to leave certain areas open to individual bargaining. But except as so provided, advantages to individuals may prove as disruptive of industrial peace as disadvantages. ²

In essence, American labor law is predicated upon a trinity of principles, that is, (1) majority rule, (2) the right of the majority representative to speak as the exclusive bargaining representative for workers and the corresponding mandate for employers to treat with no other labor organization, and (3) both the representation process and bargaining must exist within an appropriate unit or grouping of workers (Gould 2019a, 121-23).

These principles, which apply to most of American labor law in both the private and public sectors, are based upon the Supreme Court’s view that the union acts as

. . . the representative [which] is clothed with power not unlike that of a legislature which is subject to constitutional limitations on its power to deny, restrict, destroy or discriminate against the rights of those for whom it legislates and which is also under an affirmative constitutional duty equally to protect those rights. ³

The Supreme Court has reiterated and expanded upon this theme in a series of rulings which established procedures, rights, and obligations in connection with jointly negotiated systems of dispute resolution. This is the so-called “system of industrial self-government” on which the Supreme Court has expounded in a series of decisions. ⁴ It is this system which has prompted the Court to defer in practically all instances to the dispute resolution procedures which the parties have bargained in their agreement which constitutes “self-government.” ⁵

In large part, the thinking in private sector labor law relating to negotiated union security contract clauses which required membership, or more precisely, dues as a condition of employment, ⁶ attempts to pursue these same themes. This approach is consistent with Senator Robert Taft’s support for the so-called Rand formula devised in Canada in connection with union security agreements at the time of the 1947 Taft–Hartley amendments (Kaplan 2009, 165-220; Note 1961, 333-34). The view accepted in Rand and by Senator Taft was that, unless all employees within the appropriate unit could be compelled to finance the contract negotiations and the system of dispute resolution as a result of a voluntarily negotiated agreement, the incentive would be for workers to become non-union rather than union because the union is obligated to treat all workers fairly without regard to union status. ⁷ Litigation subsequent to 1947 was to emerge on a number of closely related issues, not the least of which involving the circumstances under which unions could use dues in the political process to address issues which, in their view, related to employment conditions (Gould 2014, 137-42).

In a series of rulings, beginning with International Association of Machinists v. Street, ⁸ the Court fashioned a demarcation line between subject matter which was “germane” to collective bargaining and that which was unrelated and therefore subject matter to which employees could properly object. The latter included political activities which the Court, initially over Justice Frankfurter’s strong and persuasive dissent, held could not be compelled. ⁹ Justice Frankfurter noted the deep involvement with the labor movement in the political process through its adoption of a “program of political action in furtherance of its industrial standards,” ¹⁰ and said that union pressure for legislation such as the eight-hour day in the railroad industry “affords positive proof that labor may achieve its desired result through legislation after bargaining techniques fail.” ¹¹ Said Justice Frankfurter, “The notion that economic and political concerns are separable is pre-Victorian.” ¹²

Nonetheless, in a series of decisions subsequent to Street, the Court accepted the view that it was unconstitutional to charge a non-union objecting employee for dues used for political purposes in the public sector ¹³ or under the Railway Labor Act. (This approach was extended to the National Labor Relations Act ¹⁴ ). Subsequently, the error present in the earlier cases, which had overridden Justice Frankfurter’s assessment of reality, was compounded by Justice Alito in Janus v. American Federation of State, County, and Municipal Employees, Council 31, ¹⁵ which developed a novel holding that the compulsory collection of any dues for negotiation as well as political purposes was unconstitutional because all such activity was (in the view of five justices) political. ¹⁶

Although Janus affected only the public sector, like some constitutional decisions, it could conceivably extend to cases arising under the National Labor Relations Act in the private sector as well. ¹⁷ In any event, the system has changed appreciably and the incentive for the worker to obtain non-union status has been restored as a matter of constitutional principle. To compile or obtain dues payments, the burden is on the union to obtain affirmative consent from the worker. ¹⁸ Although a long twilight litigation struggle is now commencing, in my view, the ability of trade unions to represent workers effectively as well as fairly has been circumscribed and perhaps crippled (Baker 2019; Gould 2019b). The consequence of this impairs a democratic vision for the workplace which, in the High Court’s view, has its roots in the political democratic process itself.

The Discrimination Cases

Unions are important in not only establishing democracy in the workplace but also their focus and obligations relate to internal labor organization democracy affecting workers which they represent as well. The principal statute covering this subject is the Labor Management Reporting and Disclosure Act of 1959 (often referred to as the Landrum–Griffin Act) which contains a bill of rights for union members, largely procedural in nature, emerging from the so-called McClellan hearings of the late 1950s in which there was testimony about considerable union corruption and other forms of abuse (S. Rep. No. 86-1139, 1960; Hearings, 85th Cong., 1st Sess., 1957; 85th Cong., 1st Sess., 1957; 85th Cong., 2nd Sess., 1958; 86 Cong. 1st Sess., 1959. For an excellent overview of the hearings, see generally Goldberg, n. 129, n. 213-14, 1983. See also Greenhouse, 2019, and Goldsmith, 2019). One of the statute’s limitations, however, related to the fact that unions frequently excluded blacks from membership altogether and, prior to the advent of modern fair employment discrimination legislation (Marshall 1965; Northrup 1944), the union had no obligation to open the door of membership to all in a non-discriminatory way. ¹⁹

The anomaly here is that unions, as representatives of workers concerned about the potential for abuses through employer exercise of unilateral authority, came on the workplace scene so as to obtain fairness in connection with a wide variety of employment conditions, that is, wages, hours, the amount of work which workers were obliged to perform, promotions, transfers, and the negotiation of a wide variety of fringe benefits beginning with the wage freezes imposed during World War II. ²⁰ At the same time, it was clear to many observers that a number of the unions were responsible for or complicit in racial and other forms of discrimination (Gould 1977; Hill 1985; Northrup 1944). This was particularly true of the craft unions, which were the first of the labor organizations in existence before the turn of the previous century. Craft unions could frequently control jobs, and through apprenticeship programs and hiring hall, ²¹ have a sometimes substantial role in deciding who would get work. Blacks, other minorities as well as women faced institutional barriers for which these unions were at least partially responsible. Even in the industrial unions, which generally were not involved in the hiring process itself, the question of promotion and access to higher paid skilled jobs was something about which such unions had much to say ²² and was frequently the subject of the dispute resolution process. ²³ Industrial unions, as a general matter along with the AFL-CIO itself, supported the enactment of the most comprehensive fair employment practices legislation, Title VII of the Civil Rights Act of 1964. However, the leadership of the AFL-CIO would not participate in the 1963 March on Washington, where Martin Luther King delivered his landmark “I Have a Dream” speech. And, in the wake of Title VII’s enactment, even the industrial unions became immediately involved in disputes about access to higher echelon jobs and the critical question of whether seniority accumulated by minorities in the lower paying jobs to which they had been consigned could be exercised and carried with them as they advanced. Prior to Title VII, the Court of Appeals for the Fifth Circuit had held that a union which opposed such a carryover of seniority credits was not violating its duty of fair representation: “Angels could do no more,” said Judge Wisdom in the Whitfield case. ²⁴ But subsequent to the enactment of Title VII, the circuit courts had a different view, although the Supreme Court in Teamsters v. United States reversed the latter position, ²⁵ ultimately denying black and Latino workers’ accumulated seniority credits for the purpose of competitive employment status.

Other litigation was to ensue, and most important, just as a Congressional Black Caucus emerged in the early 1970s, so also the Coalition of Black Trade Unionists (Gould 1973) came on the scene shortly thereafter and attempted to influence as well as produce elected union leadership to implement fair employment practices. This group and others like it on a union-wide basis pressured for better jobs and more black, minority, and female representation at the top in leadership positions. Today the job is hardly completed, although some of the public sector unions have begun to lead the way. Notwithstanding the propriety of race-consciousness in hiring and promotion, ²⁶ the courts have not mandated such for union leadership positions even when segregated locals were dissolved at the time of Title VII’s enactment, in the circumstances leaving black union members excluded from any elected positions. ²⁷

Yet the potential for change within the movement itself is enhanced by the fact that blacks are more likely to be a member of a union than are whites. ²⁸ The American Federation of State, County, and Municipal Employees has a black president and the Service Employees Union as well as the American Federation of Teachers have female presidents leading their ranks. Along with changing demographics and union attempts to organize minority workers in the service sector of the economy, the National Labor Relations Board (NLRB) election cases involving the invocation of race have shifted from disputes involving employer appeals designed to divide workers ²⁹ to those cases involving union appeals of racial solidarity. ³⁰

In some measure, however, the impact of this activity has been diminished by a sharp union decline, which has emerged since the 1960s, accelerating in the 1980s, and thus has meant that unions are less likely to influence employment conditions. Union representation at 35 percent of the workforce in 1955 has translated into little more than 6 percent in the private sector today (Bureau of Labor Statistics 2019). This has meant that the overwhelming majority of workers find themselves in non-union positions where virtually the only protection exists through law rather than contract—and the law is precious little in its scope. ³¹ The decline of unions and protection have translated into the stultification of the black and minority advance and the enhancement of inequality in the workplace. “ . . . [T]he decline of private sector unionism has had disastrous consequences for racial economic equality” (Ahlquist 2017). ³²

Unions and Politics

Although union involvement in the political process may be less certain as a result of Janus and its progeny in the future, today unions have attempted to make up for their decline in the workplace through political activism (Greenhouse 2019). As Justice Frankfurter noted in the above described Railway Labor Act cases, unions in politics is a tradition of long standing, reaching a measure of fruition during the Franklin D. Roosevelt administration. While considering the vice-presidential nomination, F.D.R. is reputed to have said “Clear it with Sidney.” This was Sidney Hillman, then president of the Amalgamated Clothing Workers, who was influential in labor and Democratic party circles. His imprimatur was a prerequisite for the nomination of Harry Truman to take the place of Henry Wallace as the Vice-Presidential Democratic nominee. ³³

The financial involvement of the unions in the political process as well as their dedicated manpower has been considerable (Kerrissey and Schofer 2013, 859-928). Unions play a role in motivating many Americans to vote. They use advertisements and the media and make contributions to candidates.

Yet their ability to get out the union vote has been made more difficult by virtue of the fact that traditionally represented workers are without much formal education and may be less inclined to vote and participate. In the 1970s, unions made a commitment to organizing public sector workers to the extent that most of the labor movement now is public sector as opposed to private sector (Bureau of Labor Statistics 2019, 39; Rosenfeld 2014, 164). The emergence of public sector unions, as an important part of the AFL-CIO, has meant that more union members are educated and more likely to be involved in the political arena. Indeed, the education level of private and public sector workers has increased (Rosenfeld 2014, 167). As a result, the “ . . . impact of unions on voting, and on equalizing the electorate, is even smaller than what is suggested by declining union roles” (Rosenfeld 2014, 167).

Since 1952, the AFL-CIO (the CIO and the AFL separately in 1952 itself) have endorsed every Democratic party candidate for president except in 1972 when the leadership objected to the nominee on so-called cultural issues. As the union movement has diminished numerically, their political involvement has increased, particularly beginning with 1996 when the AFL-CIO reacted to the so-called “Gingrich Revolution” which promoted the elimination or diminution of the safety net, and a war on redistributive politics. This does not mean that the rank and file will necessarily accept the recommendation of the union leadership. For instance, while Democratic party contenders for the nomination walked the picket line with the United Auto Workers in the 2019 GM strike, it was noted that

. . . [A]uto-worker support for the Democratic party had eroded slightly in recent years, and about 30% of the unions’ rank and file were estimated to have voted for Mr. Trump in 2016, slightly more than the share who voted for the two previous Republican presidential nominees. (Saul 2019)

It may be that the more considerable attention given to labor issues by Democratic party candidates in 2019 will alter this trend in 2020 (Greenhouse 2019).

Conclusion

The labor movement was founded on the idea that democratic representation and procedures were necessary in the workplace, a point of view that has been reflected in much of the above described Supreme Court jurisprudence. Janus, of course, is a step in the other direction, a tendency which could continue and grow. The movement’s internal procedures have opened up more participation for the rank and file, and the advent of fair employment practices legislation has furthered this process. But the top positions have still not opened up in significant numbers for minorities and women. Perhaps expanding union involvement in the political process will produce even more critical examination from within and without and thus make this a more likely outcome.