How Can Labor Bounce Back?

The failure of organized labor and Democrats yesterday to recall Wisconsin Governor Scott Walker, a Republican who has championed anti-union legislation, is a major set-back for the union movement—and suggests the need for new approaches.

Walker, who stripped public-sector unions of collective-bargaining rights, has become a conservative celebrity, attracting substantial right-wing support nationally that helped him outspend his Democratic opponent, Milwaukee Mayor Tom Barrett, by more than seven to one in the most expensive campaign in Wisconsin history.

The vote was not a repudiation of the right to collective bargaining per se. In Ohio, where a clean vote was taken over similar legislation to curtail the rights to public-sector collective bargaining, voters supported union rights by 61 percent to 39 percent in November 2011. The Wisconsin vote, by contrast, was not an up-or-down vote on bargaining rights, but a broader vote on the record of two candidates who had previously faced off in 2010. And because the vote involved a recall in the middle of a term, the odds were much tougher because many voters—including 17 percent of Democrats—believed recalling a governor midstream should be reserved for criminal behavior, not policy disputes. (Only two governors have been recalled in all of American history—California Governor Gray Davis in 2003 and North Dakota Governor Lynn Frazier in 1921.)

Still, the failure in Wisconsin holds two important lessons for organized labor—including higher-education public-sector unions, who were important players in the Wisconsin recall effort.

First, the public sector needs a strong private-sector union movement to survive. For years, the public sector has been the bright spot in an otherwise declining labor movement. Beginning, ironically, in Wisconsin in 1959, legislation authorizing public-sector unionizing swept the country. While private-sector unions declined, public-sector unions flourished, to the point where unions in the public sector now represent more members that unions in the much larger private-sector economy.

Of course, Republicans took note of this remaining bastion of labor strength, which is why governors in Ohio and Wisconsin tried to curb public-sector union power. Private-sector unions pitched in mightily in the Wisconsin recall effort, but they remain a largely weakened force in American politics, which is problematic for public-sector unions. As labor lawyer Thomas Geoghegan has observed, “there is no real private-sector labor movement left to protect the public-sector labor movement.” He notes: “The public-sector unions are likely to continue in existence only if there is a concerted effort to bring back the private-sector labor movement. There is no example of any country in the world that has a labor movement that is just in the public sector and not in the rest of the economy.”

Second, the Wisconsin vote underlines the need for unions to energize fellow progressives to understand what is at stake in the attack on organized labor. According to exit polls, labor did a good job of turning out members of union households. In the 2010 election between Walker and Barrett, union households constituted 26 percent of voters, but in yesterday’s recall, they constituted 33 percent of the vote. But Democrats generally were not similarly energized and actually declined slightly as a percentage of voters from 37 percent in 2010 to 34 percent yesterday. President Barack Obama, although traveling in the Midwest before the vote, chose not to put his moral authority behind collective bargaining, which may help explain why 18 percent of voters who said they supported Obama nevertheless voted for Walker.

To address both issues—the need to strengthen private sector unions, and the need to excite progressives about the labor movement—Moshe Marvit, Thomas Geoghegan, and I have proposed amending the Civil Rights Act to protect labor organizing.

In Why Labor Organizing Should Be A Civil Right, we outline evidence suggesting that one of the major reasons for the decline in private-sector unionizing in the United States is the ability of employers to fire employees who are trying to form a union with virtual impunity. We suggest that prohibiting discrimination against individuals who try to create a union under the Civil Rights Act would give workers must stronger protection than those found under the labor laws—including the right to a jury trial and legal discovery, compensatory and punitive damages, and attorneys’ fees.

Moreover, by tying labor rights to civil rights, the reform has the potential to energize progressives, who long to be part of a larger moral cause. By speaking of labor rights as civil rights, we underline the basic violation of fairness that occurs when employers fire people who are doing a good job simply because they are exercising their fundamental right to association. The Civil Rights frame helps drive home the basic abuse of employer power involved when the right of an individual to choose to join a union is violated. If Walker were seen as attacking a basic civil right, would President Obama have been a no-show in Wisconsin?

There was always a strong case for conceiving of labor rights as civil rights. After yesterday’s vote in Wisconsin, the argument for this type of reform is even more compelling.

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