By Julius Getman and Thomas Kohler
Julius G. Getman teaches at The University of Texas School of Law. Thomas C. Kohler teaches at Boston College Law School.
Published with the author's permission;
The Los Angeles Times, December 11, 2005
The remarkable recent success of the Service Employees International Union in organizing more than 5,000 janitors in Houston constituted the largest victorious union organizing drive in the South in recent memory. For those of us who still believe in the importance of the union movement, it was a welcome sign of organized labor's much-needed revitalization after years of falling membership and declining influence.
When the National Labor Relations Act was passed in 1935, only about 10% of the national workforce was unionized. The act was intended to give employees the unhampered right to unionize and to bargain collectively. Interference with the right to organize was designated an unfair labor practice, as was an employer's refusal to bargain with a union selected by workers.
During the next two decades, unions grew and collective bargaining spread. By the late 1950s, more than 35% of the workforce was organized. But somewhere in the mid-1960s, the percentage of workers in unions began to drop, even though the basic provisions of the labor relations act remained in force. That decline has continued, precipitously in recent years. Today, union membership in the private sector hovers at a bit under 8%. That is less than in 1900, despite the fact that polls indicate that more than 50% of workers would like to be unionized.
What accounts for the drop? For one thing, the labor act has proved to be inadequate to protect workers who want to organize from the power of management. Polls show that even today, 70 years after the act was enacted, workers fear reprisals if they openly support unionization. And for good reason. Workers who support union organization are fired regularly. Such discharges are illegal, but the cases are difficult to prove, and the remedies are notoriously weak.
Anti-union employers have immediate and constant access to employees. They can assemble workers and deliver "captive audience" speeches, which stress the dangers and costs to the employees of voting for representation. The union has no automatic right to reply.
If a union wins an election, the employer may still defeat unionization by refusing to come to an agreement. In fact, less than half of initial contract negotiations by a newly elected union result in a contract. The act requires good faith negotiation. But employers have learned that the remedies for bad-faith bargaining are laughably feeble.
We recognize that the weakness of the act is not the full explanation for labor's decline. Organized labor itself is partly to blame. Unions have not always earned the support of workers they represented, and they were shamefully slow in recognizing the importance of organizing. Changes in the economy and globalization likewise have played a role, as has a broader decline of "associational" life in the United States, which has decreased the importance of churches, families and political clubs.
Nevertheless, as the success of the service employees union in Houston shows, ably led unions have begun to develop new, effective organizing techniques. The most promising of these is the "neutrality agreement," whereby employers, in return for promises of cooperation and support in other areas, agree to remain neutral while organizing takes place and to recognize a union when it can prove its majority status to a neutral party. That is the method used by the union in organizing janitors in Houston.
The fact is, unions perform important functions in the workplace and in society. Among other things, they can help to reduce the gross income disparities that so mar our current economic system. Labor's problems may be legion, but they are our problems as well. A healthy democratic society needs a healthy democratic labor movement.
About Professor Getman: http://www.utexas.edu/law/faculty/getmanjg/