Sisyphus and the State On the Front Lines of Union Organizing
by Dorothee Benz
In February 2002, workers at the Mt. Sinai-St. Francis nursing home in Miami, Florida, voted to form a union. In response, their employer filed objections with the National Labor Relations Board, claiming that the union had used voodoo to win the election in the largely Haitian shop. Union and community members declared the move racist, but no matter how ludicrous the charge, the NLRB was obligated to schedule hearings and take testimony on the matter. It wasn't until May that the board issued its ruling, throwing the employer's objections out. Mt. Sinai-St. Francis appealed the ruling, once again putting certification of the union on hold. The union mounted a high-profile campaign, bringing AFL-CIO secretary-treasurer Rich Trumka (the nursing home turned the sprinklers on to keep workers away from him) and actor Danny Glover to Miami, and organized local clergy, community, and political leaders to pressure the company. Ten months after the vote, the company agreed to recognize the union.
Workers at the Santa Fe Hotel and Casino in Las Vegas, Nevada, were not so lucky. They won a union election in 1993 despite illegal firings and threats, only to watch their employer appeal the results for six years, stall in bargaining, and then finally sell the hotel and fire the workers.
In Seattle, Washington, workers at the flagship company of the "new economy," Amazon.com, were met with distinctly "old economy" union-busting tactics when they began signing authorization cards to form a union in 2000. Two months later, in January 2001, Amazon laid off 1,300 workers, including the entire Seattle call center where the union drive was focused. The work was outsourced to India, while the workers were given the option to relocate to the company's remaining domestic call centers in North Dakota and West Virginia. Today Amazon.com remains a "union-free" company.
Two generations passed before workers at Cannon Mills won union rights. The first organizing drive at the famous Kannapolis, North Carolina, textile mill took place in 1946, when the Congress of Industrial Organizations (CIO) came to Kannapolis as part of its Operation Dixie effort to organize the South. Kannapolis was a mill town, where "Uncle Charlie" Cannon owned not just the factories, but the streets, the houses, the grocery stores.
Three decades later, when the first NLRB election was held at Cannon, Kannapolis was still a mill town. Company opposition did not stop when the town was incorporated, and the NLRB twice ordered a rerun of an election because of employer violations of the law. In 1999, after five elections that spanned a quarter century, workers at Cannon won the biggest union victory ever in a southern textile mill, a victory that many people had worked their whole lives to achieve. "When I first went to work, I was afraid," Cynthia Hanes, a Cannon worker and union activist, told me in 2000. "I can remember a time when you didn't say the word union, not in the South. We've had people die during this campaign. My husband died. He never lived to see us win. He's the one that made me wear my union badge for the first time. I went to work with that badge, and I was scared to death. They didn't say nothing, and after that, they couldn't control me no more."
There were Cynthia Haneses at Mt. Sinai-St. Francis, at the Santa Fe, at Amazon, and in countless other workplaces across the United States. It is people like Cynthia Hanes who have built the American labor movement and who have always given it a character of dignity and determination, despite its many other shortcomings.
The Handwriting on the Wall
U.S. workers have no de facto right to organize. The development of U.S. labor law is such that the Wagner Act, as David Brody put it in the pages of Dissent in 1997, "intended by its authors to liberate workers, has ended up oppressing them." Numerous studies and countless examples document the role of weak labor laws in encouraging virulent anti-union campaigns, both legal and illegal, by employers. Since at least the passage of the Taft-Hartley Act in 1947, union elections have been cast as contests between two "equal" parties. But as the authors and early labor board interpretations of the original Wagner Act understood so clearly, such equality is fictitious when one of the parties signs the paychecks of the other. This legal fiction has been exacerbated by the rules that govern access for unions and companies; rules that bar one party from the premises altogether while allowing the other to hold unlimited mandatory meetings to demonize the former. Employers illegally fire pro-union workers in a quarter of all union drives, but the penalty for doing so is simply back pay, minus interim earnings. These cases usually take several years to resolve. The advantage to employers of breaking the law is obvious, and the vast majority of companies facing organizing efforts do so routinely.
None of this is news to the left, nor is the steady erosion of union density over the last three decades; union density now stands at 12.9 percent in the United States and an even more perilous 8.2 percent in the private sector. The institutional labor movement has come a long way in analyzing and addressing this dire state of affairs. The election of the New Voice slate to the AFL-CIO leadership in 1995 came in response to-and in turn further fueled-a growing sense of urgency among many of the federation's biggest unions. Most recently, the New Unity Partnership (NUP) has raised a new challenge to the AFL-CIO [the NUP unions are the Service Employees International Union (SEIU); Hotel Employees and Restaurant Employees International Union (HERE); UNITE (HERE and UNITE merged in July 2004); the Laborers' International Union of North America; and the United Brotherhood of Carpenters]. Like the New Voice before them, the NUP insurgents are responding to the handwriting on the wall: unless some way is found to reverse the losses, labor's days as a meaningful force in American life are numbered.
The prescription offered by all parties to cure labor's woes is the same: organize more workers. The recent evolution of union efforts to increase their numbers has come in roughly three overlapping stages. The first stage emphasizes building capacity; "when we try more, we win more," former AFL-CIO organizing director Richard Bensinger liked to say. The second stage calls for a strategic shift away from NLRB organizing. I call the third-which is emerging and is the subject of debate within the labor movement-the changing-the-rules stage. More and more organizers and leaders are beginning to believe that labor simply cannot organize on scale within the existing legal framework. Calls for labor law reform, long considered politically impossible, are being increasingly heard throughout the labor movement.
These recent developments go to the heart of the relationship between labor, capital, and the state. The state has always played a crucial role in determining the outcome of the contest between workers and employers. For the most part, it has done so as an ally of employers, using both its role as purveyor of the legitimate use of force and its role as the rule-maker in society to affect the outcome of labor struggles. This is perhaps most obvious historically. At the turn of the last century, the U.S. government routinely dispatched troops to break strikes, while the courts consistently struck down labor laws and issued injunctions against strikes, leading to the arrest of strikers. But the federal government's role at the beginning of this century is no less biased. The rules governing representation elections are stacked against workers. Meanwhile, labor is prohibited from using its potential power through restrictions on the right to strike and boycott while no similar restrictions exist on capital. The shift in organizing strategies away from the NLRB and toward voluntary recognition agreements is a response to the stacked rules of the NLRB process; in essence, it is an end run around the NLRB and its procedures. Even more significant is the new attention to labor law reform. It is a recognition that the game is rigged and that labor cannot win unless it contests the rules of the game. Labor must make the state a target.
Organizing Despite the Law
When they first ran for office, John Sweeney and the other leaders of the New Voice slate had a sound bite that summarized both the difficulty of organizing and the urgent need to organize. "We must first organize despite the law if we are ever going to organize with the law," they said, reflecting the prevailing belief among organizers that achieving labor law reform would be impossible until labor increased its political power by increasing its numbers.
When the Sweeney administration came into office, it created an organizing department for the first time in the federation's history, expanded significantly the federation's Organizing Institute (OI), which trains new organizers, and earmarked $20 million to help affiliate unions with organizing drives. The new AFL-CIO (as it was often called for several years after Sweeney's election) also spearheaded a push to devote more resources to organizing. It pledged to shift 30 percent of its own budget to organizing and asked its affiliates to do the same by 2000. In 1996, it launched the "Union Summer" program, modeled on the civil rights movement's Freedom Summer. The idea was to get young people out into union campaigns, inspire them and get them hooked for life on a mission of social justice. More than a thousand people participated, and Newsweek declared, "It's Hip to Be Union." In 1997, the federation launched the Union Cities program, an ambitious effort to revitalize the central labor councils (CLCs). In 1999, it initiated its New Alliance campaign, a further attempt to activate its state and local affiliates. These moves were mostly restructuring efforts that gave the national AFL more power and involved internationals more.
Actual organizing is done by the unions, not the AFL-CIO, however, and the AFL has no power to force its affiliated members to adopt programs or goals, such as the 30 percent budget allocation. A group of six unions-SEIU, HERE, UNITE, the Communications Workers of America (CWA), the American Federation of State, County and Municipal Employees (AFSCME), and the American Federation of Teachers (AFT)-has emerged as the engine of organizing in the labor movement today. Several other unions are also in the process of retooling to become "organizing unions." These unions have consistent strategic planning, dedicated resources, effective organizing models, and solid organizer recruitment and development. Although still a minority in the labor movement, the six big organizing unions include the country's two biggest unions (SEIU and AFSCME) and together represent 34 percent of the federation's membership. Several of them have shifted 50 percent of their budgets to organizing (SEIU, HERE, and UNITE); AFSCME puts its organizing budget at 30 percent. The NUP, meanwhile, has proposed a 77 percent budgetary dedication to organizing.
"Changing to organize," as the AFL-CIO slogan goes, has meant capacity building, both in terms of increased resources and also strategic planning and structural changes. This response to the challenge of organizing "despite the law" was followed closely by a second response, the striking shift away from NLRB organizing. Unions are increasingly seeking card check agreements or other voluntary recognition agreements (VRAs) and expedited election processes outside the labor board rather than face the litigious NLRB process. HERE was an early advocate of card check strategies and began organizing in Las Vegas in 1989 with a landmark card check agreement. The Santa Fe experience only confirmed the union's belief that NLRB elections were counterproductive. Summing up the years of board battles and eventual loss, HERE Local 226 research director Courtney Alexander said, "So an eight-year campaign has produced nothing in the way of improvements and benefits for that group of workers. It did, however, demonstrate that we're not going to do elections anymore, certainly not in Las Vegas." The Las Vegas Strip today is 90 percent union, almost all of it by way of card check. Nationally, HERE does less than 5 percent of its organizing through NLRB elections.
Other organizing unions report similar trends. The great majority of UNITE members are now organized through VRAs, and last year the union embarked on a major campaign to organize seventeen thousand workers at Cintas, the nation's biggest uniform provider, through a non-board process. It's impossible yet to tell whether it will succeed, but significantly the campaign is the first nationwide drive with a non-board strategy. CWA estimates 80 percent of its forty thousand members in the last three years came through non-board processes. SEIU gives a figure of 75 percent of new organizing with "reduced employer opposition," that is, some kind of voluntary agreement. At Catholic Healthcare West, the union negotiated an expedited election procedure in 2001 that covered forty-five hospitals. In 2003, SEIU and AFSCME together won an agreement for organizing at Tenet; that agreement covers forty institutions. Even unions like the International Brotherhood of Electrical Workers (IBEW)-not known for its organizing or innovation-have declared their intent to forsake NLRB elections and focus on card check strategies. The AFL-CIO does not keep data on VRAs (nor does the NLRB) but federation officials say that fewer than 20 percent of the 400,000 workers organized in 2003 were organized through NLRB elections. Card check strategies have been around for more than a decade, and their use increased steadily throughout the 1990s. But the scale of the current reliance on VRAs is striking compared to even five years ago. By opting to pursue a VRA instead of an election, a union is saying it thinks its chances of winning are greater outside the law, beyond its alleged protection of the right to organize, than within it. The scale on which this choice is being made throughout the labor movement is a damning verdict on our national labor law.
At the heart of this strategic shift is the realization that both card check and election campaigns require labor power to win; winning an election campaign ultimately does not depend on the legal rights supposedly guaranteed by the Wagner Act any more than a recognition campaign does. Unions are thus increasingly mounting the same kind of comprehensive campaigns in both kinds of drives, and for many, the only difference they see with an NLRB campaign is that it offers the employer more chances to appeal and stall. A typical major organizing drive these days will include significant outreach to various communities in order to enlist allies; use of legislative and/or regulatory politics to demonstrate to the employer that the union can cost them money or cause them headaches; some financial strategies such as reports to lenders, investors, or stockholders; and a media component to reinforce the pressure on the employer from all these other sources.
Organizing Is Not Enough
The significant gains made through non-board organizing strategies speak to the soundness of the strategy and its basic power analysis. And yet the turn to non-board organizing strategies and the reliance on sophisticated multifaceted campaigns, like the effort to bulk up labor's capacity to organize, have not managed to reverse the slide in union density. The problem is not that unions can't organize. The problem is that on the existing legal terrain labor can't organize on scale-and this is true for NLRB and non-board strategies alike.
Take the case of SEIU Local 1199 Florida (the union that organized the Mt. Sinai-St. Francis workers), which has systematically organized nursing home workers since 1996. It has a tight, effective organizing model (its win rate in NLRB elections is 82 percent, more than 50 percent higher than the national NLRB win rate), deep ties in the communities of its members, and a strong political program. It wins against some of the toughest, meanest employers in America. Since the campaign started, it's organized more than fifty new nursing homes; in a good year, it adds twelve homes. Here's the problem: there are seven hundred nursing homes in Florida. Each one is a battle that takes time and resources to win: several months from start to finish for the election campaign, and then six months to several years to reach a first contract.
VRAs and expedited elections can sidestep this shop-by-shop, time-intensive process. CWA won a card check agreement from SBC in 1997 back when it was a regional phone company. Within three years, it had organized virtually all of SBC's wireless workers in the region, and when the company expanded nationally, a card check agreement was negotiated for the "outer region," which also led to significant gains. But the 1997 deal itself took five years to win. Similarly, the Catholic Healthcare West and Tenet agreements are both products of multi-year intense campaigns. Even in Las Vegas, where HERE arguably has the most favorable conditions anywhere in the United States and significant union density, individual struggles sometimes take many years. "We can afford here in some respects to have a struggle that takes five years, six years, because we have critical mass already," reflected Local 226 political director Glenn Arnodo. "But for a labor movement that is just nationally fighting to survive, it's a big question: How do you deal with the fact that even when you win, it takes you five years to get a thousand workers, or two thousand workers? That's pretty tough, and as a national labor movement we've got to figure out strategies that obviously bring people in at a faster pace."
This problem is exacerbated by trends in the economy that have accelerated the decline in union density. It took the workers at Cannon fifty-three years to win, and four short years later the company shuttered its doors at all sixteen of its facilities in ten states, including the famous mill in Kannapolis; 6,450 workers lost their jobs. And just as industries with higher density have lost jobs, the bulk of new jobs is in industries where unions have few roots. Although shrinking manufacturing industries such as textile have always been union strongholds, the two biggest sectors of the economy, retail trade and services, have among the lowest union density rates, 5.2 percent and 3 percent, respectively. This means that a half million new members must come in every year just to keep the rate of union density from slipping further. Given that most union gains require pitched battles and months or years to win, these trends create a virtually insurmountable obstacle to the urgent task of rebuilding labor's base.
Union organizing has become the work of Sisyphus. Workers and organizers push the boulder up, building the movement through new organizing, only to watch it crash down again through some plant closing or anti-union campaign or growth in non-union jobs. And no matter how hard they work at it, the result is always the same. Just as Sisyphus was damned by the terms of his punishment to never roll the boulder over the top of the hill, so too is the U.S. labor movement damned by the terms of our labor law to never grow beyond its current size.
Labor Must Take on the State
This realization has spurred the reemergence of labor law reform as a serious priority. Despite eight years of earnest efforts, new programs and increased resources, eight years in which labor's best and brightest have poured the movement's creative and financial resources into reversing labor's decline, union density in the private sector has slipped from 10.2 percent to 8.2 percent. In response, labor organizers, leaders and intellectuals have begun to rethink the can-do idea that unions could organize their way out of the crisis "despite the law." Labor law reform is back on the official AFL-CIO agenda for the first time in a quarter century.
As recently as 2001, a reform bill sponsored by the late Senator Paul Wellstone was completely ignored by the AFL-CIO, but in November 2003 the Employee Free Choice Act (EFCA) was introduced with federation support and extensive publicity. The bill would provide for card check recognition, first contract mediation and arbitration, and stronger penalties for unfair labor practices. Meanwhile, journals such as New Labor Forum have featured discussions and debates on the relative importance of pursuing labor law reform. Everyone agrees that reform is urgently needed. The question is how to pursue it and whether it is at this point prerequisite for labor's ability to organize on scale.
The AFL-CIO's Voice@Work project, another Sweeney-era initiative, is spearheading labor's support for EFCA and has worked for several years to reframe the struggle to organize as a human rights issue-which it certainly is as workers in the United States are routinely denied internationally recognized rights of free association and collective action. In the same vein, AFL-CIO organizing director Stewart Acuff has called for making every union drive a local referendum on organizing rights.
Although it is unclear how labor can win reform, it is equally clear that reform is imperative. For what is ultimately at stake here is not just the survival of tens of thousands of local unions throughout the country, but the capacity of working-class people to defend their interests in our society. Unions have been the predominant means through which workers have won some measure of self-determination and representation both in the economic marketplace and in the political arena. From the eight-hour day to Social Security benefits to health and safety laws, the labor movement has been the main force in advancing the social and economic needs of the less well off. This is not to say that everything labor has done serves broad social interests but rather to assert that organized labor has been the main vehicle for advancing those interests. And even more to the point in the current climate, without organized labor those interests tend to go unrepresented. It is no accident that the decline of union strength in the last three decades has coincided with the increase in income inequality, the loss of real wages, and the growing proportion of Americans who are without health insurance or retirement benefits. The fate of labor is tied up with the fate of America, and the enormous difficulties workers face in organizing unions raises troubling questions about the ability of the American political system to make good on the promise of "liberty and justice for all." __________
Dorothee Benz is communications director for CWA Local 1180 and co-founder of UNION Ink. She recently completed her dissertation, "Despite the Law: Union Organizing in Contemporary America," at the City University of New York. The author wishes to thank Marshall Berman for inspiring the title image of this article.
