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Forget the NLRB — Organize for power


The holy grail for private sector unions is the NLRB election. Unionizing campaigns are organized with the narrow objective of acquiring signatures from at least 30 percent of workers to trigger an election. The expectation is that once workers get to vote they will pick the union and collective bargaining will begin. The same strategy is repeated in the public sector as well.

This has been a flawed strategy leading to repeated defeats.

As CUNY professor Frances Fox Piven and Richard Cloward showed in their classic 1977 book “Poor People's Movements,” this strategy has rarely worked in our favor even from the earliest days of the national right to unionize and bargain with Section 7a of the 1933 National Recovery Act which preceded the 1935 NLRA.

Rather than make unionization easier, labor law has served to contain and defang it. This happens by turning worker self-organization into a highly regulated and bureaucratic process decided by labor lawyers and federal bureaucrats. This slows down and channels workers’ struggles into a legal fight far away from the workplace where we have power. When that happens employers gain the upper hand.

Union busting today is hardly new. While it doesn’t involve the armed repression I wrote about in my first book, “When Workers Shot Back,” the guns have been replaced by the procedural weapon. As organizing stops to vote and bargain, employers are free to carry out misinformation campaigns to confuse and divide workers, target key organizers, pay off some workers with better pay and benefits, and drag out the election long enough until many workers who asked for a union move on to other jobs.

While much of this is illegal, unions typically respond not by striking for representation but by filing unfair labor practice charges with the NLRB, a process that can drag on for years. This too knocks the struggle off track into yet another bureaucratic battle.

It’s no surprise that the average length of time it takes to obtain a first contract after winning a representation election increased between 2005 and 2022 by more than a third from 375 to 575 days, according to Bloomberg Law.

The good news is that when the election finally happens, workers vote by an average of 76 percent to unionize, which is 50 percent higher than 25 years ago, according to the Bureau of Labor Statistics and Cornell School of Industrial and Labor Relations.

The bad news is that about one-third of unions are forced to negotiate for more than three years to achieve their first contract, according to the Economic Policy Institute. Although we are seeing an upsurge in elections, they still amount to nearly one-third the number of 25 years ago.

If we manage to get a contract, the employer often decides which workers are in and which are outside our bargaining unit and frequently force workers to include no-strike and management-rights clauses that divide us and weakens our power to take joint collective action.

These numbers show us that  unionizing according to the legal process doesn’t work. If we are going to capitalize on the massive support for and interest in unionizing today, we will need to organize around and against labor law.

As I have written about on these pages in recent months, relying on foundation-funded big worker centers, lobbying for labor law reforms like card check and pouring hundreds of millions of dollars and millions of hours of free labor to support so-called allies are all dead ends.

We must learn from the militant organizing of independent unions during the Great Depression in 1933, as recounted by Piven and Cloward. When millions of workers were spurned by the AFL craft unions, they organized and struck anyway. In contrast, the CIO spent all its funds to support worker militancy that repeatedly resulted in workplace occupations and street fighting with company thugs and the National Guard. As a result, the unorganized became organized and powerful.

Labor lawyer Joe Burns showed in his 2014 book, “Strike Back,” how public workers formed independent illegal unions and wildcatted, resulting in huge victories in the 1960s and ‘70s. Many states responded by passing new labor laws that legalized our right to unionize, bargain and even strike although not in New York. The wildcat strikes built the public sector unions we have today.

The growth and power of the workers movements from the 1870s to the 1970s was built by defying the law to organize for power on the shopfloor and throughout society.

When we have the necessary power to disrupt, Piven and Cloward and Burns have shown us, is when the reforms come. Those reforms do not give us power but are designed to stifle it by channeling our struggles back into bureaucratic legalistic routes where we cannot win.

The current strategy of first changing labor law in order to organize, vote and bargain is not about workers organizing for power. It leaves us vulnerable to unreliable politicians who have not delivered anything in generations. We shouldn’t ask or expect anything we are not already powerful enough to take ourselves.

The workers movement has been most successful when we organize maximum disruption. In 2018, teacher wildcat strikes won big in right wing dominated states of Arizona, Kentucky, North Carolina, Oklahoma and West Virginia. Only then can we win immediate improvements that also give us the power to transform an unjust system that has pushed all life on earth to the point of ecocide.

Robert Ovetz is editor of “Workers' Inquiry and Global Class Struggle,” (Pluto) and the author of “When Workers Shot Back,” (Haymarket) and the new book “We the Elites: Why the US Constitution Serves the Few” (Pluto). Follow him at @OvetzRobert 


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