Ben Sachs, Professor of Labor Law at Harvard has just published an article in the Yale Law Journal entitled “The Unbundled Union: Politics Without Collective Bargaining“. In it, Ben argues for modest reforms to American labor law that would protect and frame a protected legal right for workers to join and participate in ‘political unions’ which do not engage in collective bargaining. A political union would engage in political activities, such as campaigning, lobbying, policy activism, and social activism, but would not bargain. Sachs argues that the law should encourage political unions of this sort because the decline in unionization to a mere 7% of the private sector had created a huge vacuum of political responsiveness in America. The wealthy control public policy.
Whereas in the past, the labour movement provided a reasonable counter balance to the influence of wealth, that is no longer the case. Today, “the preference of the vast majority of Americans appear to have essentially no impact on which policies the government does or does not adopt”. That’s because there is no longer a collectively organized and financed voice of the middle class left in America. Nothing has filled the void left in the wake of the decimation of American unions. Sachs argues that this should be of great concern to Americans. Campaign finance reform aimed at lessoning in some modest way the political influence of corporations and the mega-rick hasn’t worked. The best hope to build a countervailing voice to corporate and individual wealth is to build a collective political form of unionization. The workplace is the most effective location for collective organizing.
The trouble is that the traditional model of collective action, labor law, was designed around the concept of collective bargaining, not political organization and voice. This model won’t work as a device to promote collective political voice without reform. Thus, Sachs argues that labor laws should be reformed to recognize the right of workers to join political unions distinct from collective bargaining unions. The law would need to include anti-reprisal provisions to stop employers from firing workers who join political unions. It should permit dues checkoff to help the political unions gain resources, noting that no employee could be required to join or pay political dues; joining a political unions would be purely voluntary. The arguments for allowing mandatory dues checkoff in the collective bargaining context don’t apply in the case of a purely political union. The law should permit speech in the workplace relating to political unions and campaigning, like collective bargaining union speech is permitted. Employers would have no duty to bargain or negotiate with a political union.
Sachs argues that purely political unions would not likely attract as great a level of employer opposition as collective bargaining unions, since the impact on the employer’s economic interests are not as direct, if they exist at all. Some employers, and others who benefit from the lack of political voice from the lower and middle classes would still object and resist collective action by workers in any form, since it poses a risk to the status quo. However, Sachs surmises that the American public would like have less tolerance for discrimination by employers for expressing political opinions than they seem to have for employers who publish workers for trying to engage in collective bargaining. He argues that a legal model that permits political organizing at the workplace level could help to slowly rebuild a middle-lower class political voice in America.
Implications for Canada?
What do you think of Professor Sach’s argument? In Canada, the problem of disproportionate political influence of the wealthy has been buffered somewhat by: (1) a stronger labour movement, especially its much greater presence in the public sector; and (2) the New Democratic Party, which traditionally has kept middle/lower economic class issues in the political discussion. Does this ensure that the rich do not have a disproportionate influence on public policy? Make no mistake, the political right in Canada would like nothing more than drive union representation down to American levels. I’ve noted before that Canada is lagging the American decline in unionization in the private sector almost perfectly, but with a lag. Union density in the private sector in Canada presently sits at about 14% of the workforce.
I’ve argued in this Queens Law Journal article (Graduated Freedom of Association) something similar to Professor Sachs, but in the Canadian context. My argument is that Canadian law should recognize a second ‘less thick’ version of freedom of association in which workers can come together in a workplace and act collectively outside of formalized collective bargaining, and that the law should protect them from retaliation. Hence, I proposed that the law protect the right of workers to form associations (unions or otherwise) and to speak collectively through those associations at work and in the community, without fear of reprisals. Employers would not be required to ‘bargain in good faith’ like an employer with a certified union. But the employer would be required to meet with the association, listen to its representations on behalf of its members, and engage in a ‘meaningful dialogue’ with the association. These are the rights that the Supreme Court of Canada has said are minimally guarateed by the Charter, so that public sector employees already have these rights. But private sector employees are only protected from reprisals if they join a ‘trade union’ [not other types of associations], and employers are only required to acknowledge trade unions that have been certified by the government as representing a majority of employees.
My proposal would legally recognize two new concepts into Canada: (1) nonunion employee associations; and (2) a form of limited minority trade unionism. This model would operate alongside the traditional majority trade union model presently found in labour relations legislation, as a supplement to it, not a replacement. The underlying theory is the same: the law should facilitate greater access to collective voice for workers who wish that option, and should not be limited to just majority, exclusive, trade unionism.
Issues for Discussion
Do you think the law should promote forms of collective worker voice and organization that extend beyond traditional formal, majority trade union collective bargaining?
Do you think workers who would not otherwise support full-fledged majority trade union bargaining might support a union or association that doesn’t bargain, but that focuses on political organizing and campaigning on broader social and economic issues? Why or why not?
Do you agree with Professor Sachs that the decline in union representation the US creates a serious problem of political unresponsiveness to the concerns of the middle and lower economic classes?
Is that problem remedied in Canada by some means?