Back to the Future: Union Survival Strategies in Open Shop America

by Steve Early and Rand Wilson
The rupture of labor-management relationships that may have been “comfortable” in the past, plus the accompanying loss of legal rights in a growing number of states, have triggered membership-mobilization activity reminiscent of the original struggles for collective bargaining. In Wisconsin and elsewhere, labor’s recent defensive battles demonstrate that a new model of union functioning is not only possible but necessary for survival. As a first step in this process of union transformation under duress, workers must definitely shed their past role as “clients” or passive consumers of union services. In workplaces without a union or agency shop and collective bargaining as practiced for many decades, they must take ownership of their own organizations and return them to their workplace roots, drawing on the experiences of public workers in the South whose practice of public-sector unionism has, by necessity, been very different for the last half century.
When the history of mid-western de-unionization is written, its sad chroniclers will begin their story in Indiana. That is where Governor Mitch Daniels paved the way, in 2005, for copycat attacks on public-sector bargaining in Wisconsin, Ohio, and Michigan — and for a successful assault on privatesector union security in his own state earlier this year.

 A right-wing Republican, Daniels was elected in 2004. Immediately after taking office, he began cutting state agency jobs and, via executive order, revoked state-employee bargaining rights granted by his Democratic predecessor, Evan Bayh. Over the next six years, state government employment dropped from 35,000 to 28,700. In 2005, 16,408 state workers were paying union dues; by 2011, only 1,490 still belonged to labor organizations now deprived of dues check-off.

n Indiana, the end of collective bargaining led to a pay freeze in 2009 and 2010, introduction of a new merit-pay system, loss of seniority rights, and health-care cost shifting. Several state employees interviewed by The New York Times in February, 2011, reported paying $5,200 a year for their insurance premiums — $3,400 more than when Daniels took over. According to The Times’s reporter, Steven Greenhouse, the resulting drop in union membership was due “to workers deciding it was no longer worth paying dues to newly-toothless unions.”

Jim Mills, a welfare worker in New Castle, Indiana, offered a different explanation for why his union branch shrank from 260 to twelve members: workers were afraid that management would retaliate against them for union activity once they were no longer protected by union contracts.

Republican governors elected in the fall of 2010 — like Scott Walker in Wisconsin, John Kasich in Ohio, and Rick Snyder in Michigan — all looked to Daniels as their model. For unions like the Service Employees, the American Federation of State, County, and Municipal Employees (AFSCME), the two national teacher organizations, NEA and AFT, unionized firefighters and police, the Indiana scenario is a formula for union marginalization, if not total extinction. As soon as they took office in early 2011, Snyder and Kasich quickly rescinded bargaining rights for the newest public-sector union members in their respective states—more than 40,000 child-care providers and home-health aides. These workers had only recently been organized under the terms of executive orders issued by previous Democratic governors; none were covered by the pension and medical plans covering regular state workers, with a longer history of collective bargaining.

Broader anti-union measures introduced by Walker in Wisconsin, and by Kasich in Ohio, were adopted by state legislators not long afterwards, triggering the mass community-labor protests in Madison described and analyzed elsewhere in this issue of Social Policy. In Wisconsin, these demonstrations reached truly unusual and inspiring proportions in the winter of 2011. The focus of organized labor’s counter-campaign then became a partially successful recall effort aimed at Republican legislators and a legal challenge that delayed — but did not prevent — implementation of the law. Weighing its potential impact on 360,000 public employees in the Buckeye State, some experts argued that SB-5, Ohio’s anti-union law, was even tougher than Wisconsin’s, because uniformed public-safety employees were included whereas Walker excluded them from his “budget repair” bill.5 Fortunately, labor opponents of SB-5 collected more than one million signatures to force a referendum vote last November that repealed Kasich’s draconian curbs on collective bargaining in Ohio.

In Wisconsin, however, all state employees have been thrust into a new open-shop environment since last summer. County and municipal unions, along with local teachers’ associations, are losing their ability to collect dues through automatic payroll deduction as their current contracts expire. According to University of Wisconsin labor historian Stephen Meyer, Walker’s anti-union legislation is worse than the private sector “right to work” laws spawned by the 1947 Taft-Hartley Act “because it requires that unions get re-certified by their members yearly, at the same time that the unions are prevented from accomplishing anything for them.” The new electoral deck is further stacked against incumbent unions by the requirement that they win recertification by majority vote of everyone in the bargaining, rather than just 50% plus one, of the workers who turn out to vote.

Most of the 1.6 million American workers covered by labor agreements, but who are not union members, can be found in our twenty-three right-to-work states. This political bloc increased by one earlier this year, when Indiana’s Republican-controlled legislature passed a bill signed by Governor Daniels that outlawed negotiation of any contract clause requiring payroll deduction of dues — or non-member “agency fees” — for union representation. In Indiana, as elsewhere, unions in private industry remain legally obligated under the National Labor Relations Act, which Taft-Hartley amended, to provide services on an equal basis to everyone in their bargaining units, regardless of whether individual workers contribute a dime. In New Hampshire in 2011, it took a Democratic governor’s veto to prevent the open shop from being imposed there, with similar unfair financial burdens, on unions in both the private and public sector. If anti-union forces had succeeded in the Granite state last year, as they did in Indiana this year, it would have marked the first encroachment of “right-to-work” in New England, a supposed “blue state” bastion.

Dues-Deduction Dependence

Wherever legally sanctioned, negotiated provisions for automatic payroll deduction of dues have long produced a guaranteed income stream for U.S. labor organizations. With the revenue from dues and “agency fees” — payments required by workers who choose not to join — unions have paid for their lawyers, lobbyists, full-time negotiators, and field staff. They have also helped finance state, local, and/or national election campaign activity by their members, some of whom also make voluntary membership contributions to union politicalaction funds. Some commentators on the left have long argued that “dues check off” makes unions less responsive to workers, because the latter have no way of withholding financial support from organizations granted the exclusive legal right to represent them. One radical critic of the union shop — a longtime labor educator and former organizer in the garment industry — believes that labor’s post-New-Deal reliance on government certification and automatic dues deduction effectively “precludes any meaningful internal democracy — a precondition to a militant mass organization.”

For better or worse, depending on your point of view, major unions are now operating in hundreds, if not thousands, of workplaces in which union membership has just become voluntary again. According to the all-knowing editors of the New York Times, Republican sponsors of recent openshop legislation are mistaken in their belief that “unions will simply fade away” when they have “no ability to raise funds.” Says The Times, optimistically, “As much as unions may struggle with these new shackles, their members — and their motivation — are not going away.” On the other hand, it has been many decades since passage of the NLRA and the later public-sector bargaining laws modeled after it. During that time, most unions have not had to function as voluntary membership organizations within privateand public-sector enterprises in much of the country. One major challenge they face today is quickly adapting to this new and more difficult “internalorganizing” environment. In Wisconsin, for example, a combination of rank-and-file apathy, anger, fear, and/or dissatisfaction over past union representation, including recent concession bargaining about wages and benefits, could easily send dues receipts plummeting to Indiana levels, if unions do not strengthen their workplace structures and become more member-oriented.

This is exactly the crisis that faced Local 100 of the Transport Workers Union (TWU) New York City, when it paid a high price for its workplace militancy seven years ago. After a 2005 citywide bus and subway system strike, 35,000 transit workers were punished under New York’s Taylor law which prohibits walkouts by public employees. Local 100 members were assessed fines ranging from $650 to $750, the equivalent of three days’ pay for most strikers. The local was fined $2.5 million, its president briefly jailed, and automatic dues deduction temporarily suspended. The contract settlement, which included unpopular givebacks, was rejected narrowly but later imposed by an arbitrator.

The punitive suspension of TWU’s dues check-off deal with the Metropolitan Transportation Authority resulted in the local’s paid-up membership sinking to nearly fifty percent in the bargaining unit involved in the strike. Local 100’s weak and demoralized steward structure made systematic hand collection of dues impossible in many workplaces. Members were bitter and angry about being fined for striking against benefit concessions they were ultimately forced to accept anyway, after a work stoppage that many felt was poorly organized and led by the union.

Dues deduction was eventually restored but, as recently as late 2009 when a reform slate took over Local 100, about 17,000 former strikers were not eligible to vote because they still owed as much as $900 in back dues and could not or would not pay that amount. Members of the Take Back Our Union slate, headed by current Local 100 President John Samuelsen were faced with the monumental challenge of restoring rank-and-file confidence in the TWU and gradually coaxing as many lapsed members as possible back into the fold. In late 2010, when Local 100 began preparing for contract negotiations this year, stewards, officers, and staffers were still trying to get 14,000 bus and subway workers back into good membership standing.

In the rest of this article, we examine the pressing debate, within labor, about how best to respond to such daunting open-shop conditions, whether they arise in atypical Local 100 fashion or as the result of legislation and executive orders that more permanently disrupt union financing, administration, and day-to-day functioning.

Clearly, conducting “business as usual” is not a viable option in new open-shop states. If government-employee unions remain what Stanley Aronowitz calls “insurance companies and grievance machines,” the soft underbelly of mainstream unionism, public sector division, may soon be exposed for all to see. Are there ways that these endangered labor organizations can operate “outside the protection of the law?” Can they learn to function with greater membership consent, rank-and-file participation, and voluntary financial buy-in than was needed in the past? Can they develop internal organizing plans based on worker-toworker relationship building and collective action on the job as a substitute for formal collective bargaining?

Lessons of Southern Organizing

Public-sector unionists with long experience in openshop states like Tennessee, Mississippi, North Carolina, or Texas argue that all is not lost for their brothers and sisters north of the Mason-Dixon Line. In North Carolina, notes United Electrical Workers (UE) organizer Leah Fried, “collective bargaining rights were stripped from public employees in 1959 by an all-white state legislature [which] made it illegal for state and local governments to enter into collective bargaining agreements with workers.” For more than fifteen years, the UE has “helped public workers across North Carolina, Virginia, and West Virginia form non-majority unions that organize and fight to improve workers’ lives on the job without a contract.”

UE Local 150, the North Carolina Public Service Workers Union, initially concentrated on gaining strength within the state university system, which includes sixteen campuses and over 19,000 workers. The union’s primary base and leadership came from parts of the workforce that is majority African-American and female, like house-keeping, groundskeeping, and other blue collar jobs. As UE organizer Steve Bader reported in Labor Notes, “When UNC refused to meet with the union, UE 150 organized Martin Luther King Day leafleting, Black History Month black armband days, and meetings with legislators [that] culminated in a meeting between UNC System President Molly Broad’s office and 18 rank and file workers. The meeting pressured the president into issuing an official memo that recognized workers’ rights to join and build their union without retaliation, changed the grievance policy to allow a co-worker grievance assistant, and established ‘meet and confer’ bodies between employees and top management.”

Later, the UE expanded to other UNC campuses and the Department of Health and Human Services, where members held union meetings during lunch or break time to decide on issues and strategies. An independent union of city workers in Durham voted to affiliate with UE Local 150 and has even conducted several strikes. Whether they are state or municipal employees, rank-and-file activists are trained to represent co-workers in grievance meetings with management and serve as elected stewards and officers. According to Bader:

“Victories in this area include winning formal grievances over unfair discipline. In at least three cases, racist managers and supervisors have been forced to leave the job due to pressure from the union. At almost every institution, union chapters have had direct meetings with management regarding workplace issues. In several instances they have won concrete changes, such as improved equipment, respect for or changed policy, and internally granted raises of $1,500-3,000 for individual workers.”

UE Local 150 also gathers, organizes, and distributes data on wages, benefits, personnel practices, and employment-related legislative initiatives — information that may be publicly available but difficult for workers to obtain. The union has established a regular presence in the capital when the legislature is in session and regularly contacts lawmakers about issues affecting public workers. Rank-and-file members are organized and encouraged to speak directly to elected officials, rather than relying on professional lobbyists. UE legislative priorities or accomplishments in the past include winning flat rather than percentage raises, to aid the lowest paid, passage of bills to improve the grievance procedure, and win stronger family and medical leave rights and protection against discrimination based on disability. The UE has also generated much publicity for its creative challenge of North Carolina’s legal ban on public-sector bargaining as a violation of international labor standards.

Tom Smith is an organizer for and former president of Communications Workers of America Local 3865, Tennessee’s United Campus Workers (UCW). UCW/ CWA is a “non-majority union” of state university workers that’s grown from two dozen members on one campus to more than 1,200 in eight cities in the last ten years. “While having dues check-off helps, not having it isn’t fatal,” says Smith, although he notes that “we struggle with selfsustainability every day.” According to Smith, in the early years of Local 3865, “elements of our leadership argued that having to hand-collect dues kept the local’s leaders and organizers honest. This attitude meant attending weekly meetings to make plans to collect dues. Quickly we realized that spending the majority of our time playing bill collector was not part and parcel of union democracy, nor did it help build the kind of political relationships we’re aiming for on the job.”

Instead, stewards started to spend more of their time “listening to co-workers, gathering opinions about how to build the union, organizing meetings, and working to save jobs from budget cuts.” Local 3865 switched from hand collection of cash or checks to a bank-draft system which enables dues to be deducted straight from members’ accounts. But that requires new members to fill out a form providing their bank routing and account numbers, which creates “a new layer of difficulty in signing up members.”

“Bank drafts are complicated. We have a number of different drafts depending on pay periods. As anyone who has lived from paycheck to paycheck knows, automatic withdrawals need to be timed so that enough “available funds” are left behind to ensure groceries and gas do not overdraw the account. When possible we deduct dues from the check that does not contain the health insurance premium.”

According to Smith, “very few people sign on first contact” because “a longer relationship must be built beforehand.” The amount of work required for dues collection via bank drafts is still “very large.” Local 3865 staff devote dozens of hours each month to adding new members to the system, dealing with transaction fees, returns that slam the union with an additional fee, and costly “drops” when workers drop out of the union. “We now know all the local bank routing numbers, “he says, “so new members signing up can simply put their bank’s name on a dues form that specifies savings or checking account, to prevent expensive returns.”

In Texas, the CWA-backed counterpart of Local 3865 is the Texas State Employees Union (TSEU)/CWA Local 6186, a group launched as a “non-majority union” organizing project in the early 1980s. Although heavily subsidized by the national union for many years, TSEU has built up a dues-paying membership base, now numbering about 12,000, in the same fashion as higher-ed union organizers in Tennessee. (Texas has more than 120,000 state employees.) Both white-collar and blue-collar state workers can join, in any state department, agency, or university system campus. As TSEU lead organizer Jim Branson explains, “The union can represent workers in grievance hearings, which means that individual workers don’t have to be on their own when faced with some kind of adverse personnel action.”16 But individual worker representation in grievance proceedings is just “a small part of what TSEU does,” Branson says.

“We have a voice on the job because we are an active and growing movement that puts a lot of emphasis on organizing. We have agency caucuses, made up of union activists, who meet regularly to formulate goals and plan actions for winning those goals. From time to time, members of the caucus will meet with agency heads to discuss our goals, and when the legislature is in session, caucus members will speak directly to lawmakers. ….If a united group of workers act like a union, they can have a voice on the job. It’s not easy, but it can be done.”

TSEU activist William Rogers says his union “has managed to win some victories even though it has very few legal rights.” In 2007, for example, TSEU led a campaign that saved thousands of government jobs by preventing further expansion of privatization of the state’s health and human services. “That was a fight of organized workers, even though we weren’t a majority in the health and human services agency, and we didn’t have collective bargaining,” Branson said. “But members mobilized like crazy. Their mobilization turned public opinion against the privatization plan, and when the contractor screwed up, the state had no choice but to fire it.” TSEU members throughout Texas lobbied elected officials and succeeded in getting about 100 counties and municipalities to pass resolutions against the governor’s privatization plan. They also visited state legislators, marched, rallied, demonstrated, held press conferences, and spoke out at public hearings. In the process, reports Branson, “We got workers who had been sitting on the fence to join the union. We were able to maintain our presence in the agency — even though a lot of workers were quitting in anticipation of being laid off — because we never stopped organizing.”

Rethinking the Union Idea in Wisconsin 

From the early 1930s until 1959, Wisconsin’s public workers practiced “informal bargaining,” like UE and CWA members in the South today, with the eventual goal of securing full collective-bargaining rights. Their efforts began during the great union wave of the 1930s when many public employees, like private-sector workers, asserted their rights to organize and negotiate with their employers, wherever they could. It was through organizing, demanding voluntary recognition, and working to expand these bargaining relationships that most Wisconsin public-sector unions were finally able to win a legal mechanism for formal certification and dues checkoff fifty years ago. Before that, union members kept their organizations afloat with voluntary dues payments, and/or national union subsidies. Several competing University of Wisconsin faculty organizations functioned this way until several years ago, when they finally won the right to seek union certification, based on representation elections — only to lose that new recognition process under Walker.

One longtime faculty organizer for the AFT was Frank Emspak, who taught at the UW School for Workers and now runs Workers Independent News (WIN), a labor radio project based in Madison. Emspak was among those veterans of last year’s “Wisconsin uprising” who warned about the impending impact of the June 2011 cancellation of automatic dues deduction. According to Emspak, organized labor’s shift to recall election activity, after the state capitol occupation and rallies ended, meant that “rebuilding of the locals in offices and work sites took second place,” even though some unions, like the NEA-affiliated Wisconsin Education Association Council (WEAC), did conduct “training for their local union leaders based on member mobilization.”

According to Emspak, “as the spring turned to summer, it became clearer that, at the level of the workplace, the Wisconsin trade union movement faced a much more difficult challenge [because] the culture and history of public sector unionism has essentially been that of a lobbying organization combined with a legalistic contract enforcement mechanism heavily dependent on arbitration. [F]or that to change at the base, one would have to see an expenditure of resources similar to that in the political sphere.” As Emspak points out, AFSCME Council 24 and the Wisconsin AFT “are in a long-term untenable position unless they can organize their members in individual dues collection programs.” As of mid-October, 2011, Emspak characterized their individual sign-up results as “not too successful,” with “some larger AFSCME and AFT locals covering state workers” only having dues-paying membership of “about 10 percent.” The recently organized University of Wisconsin faculty units on campuses outside of Madison — although now stripped of the ability to negotiate first contracts — have a much higher reported membership, nearly 75%.

The Wisconsin Teaching Assistants’ Association (TAA) is the forty-year-old Madison-based AFT affiliate that helped trigger the state capitol take-over in February 2011. The TAA has a “strong organizing culture” and “the ability to mobilize people when push comes to shove,” says TAA co-president Alex Hanna proudly. Nevertheless, in any highturnover academic bargaining unit of part-timers, finding and signing up members is difficult under the best of legal circumstances. On the Madison campus, in the past, the TAA has generally achieved about 50% membership, while the remaining 1,500 teaching assistants were mandatory agency-fee payers.

In August of 2011, the union launched its first recruitment “blitz” under the current conditions of having no contract that requires everyone in the bargaining unit to pay their fair share of union bargaining and servicing costs, in one form or another. As TAA co-president Adrienne Pagac observed, “No law, including one that grants an organization the right to collectively bargain, makes us a union. Unions existed prior to the implementation of such laws and will remain even though Scott Walker and Republican legislators have taken our rights from us.” As of February 2012, about 600 to 700 TAs had voluntarily agreed to pay dues, less than half the TAA’s old membership level, although sign-ups continue throughout the academic year.

David Newby, a founder of the TAA, former Madison central labor council leader, and now the retired president of the Wisconsin AFL-CIO, worries that neither AFSCME nor AFT, in other state-worker units, will be able to reach membership levels of 25%. He fears that “this year will be the best they do for membership unless they organize at the worksite and start acting like a union, even though they don’t have contracts or legal status.” One factor that has not helped is the lack of any substantial dues reduction from unions already facing budget crises and the need to lay off staff. For example, TAA is getting no relief on the per-capita dues it is still required to pay to the AFT’s state and national organizations for each member it signs up. In contrast, when members of CWA affiliates like the TSEU or Local 3865 in Tennessee lack contract coverage, they pay lower than normal dues, 1.15% for public-sector members.

AFSCME’s university locals sought a reduction in their dues, since members have suffered a big pay cut due to benefit concessions extracted by Walker, but they got just a few dollars knocked off average dues payments of $39 a month. Both rank and filers and officials agree that getting workers to pay dues voluntarily now is a “hard sell” in many workplaces. As one Wisconsin union officer told a reporter last year, “People have different perspectives on whether the union will still be what it was or should be and that may affect whether they’re willing to pay dues.” Anne Habel of AFSCME Local 171 believes that some of her co-workers will be less likely to maintain their membership in a statewide labor organization if “they don’t understand what they get from it.”

To encourage members of AFSCME Local 2748 to “recommit” to paying dues through automatic deductions from their bank accounts, union staffers first went door to door on their own. Local 2748 member Estelle Clark reports that the results got better when rank and filers from Wisconsin’s Department of Workforce Development were recruited and trained to help with house visits, “because they could relate better to their co-workers.” As Labor Notes reported in February, this one-on-one canvassing “became a way not only to talk to inactive members but also to develop leadership skills among activists.” Workplace meetings have been turned into “an opportunity for members to discuss why belonging to a union is important in the first place — conversations that many feel should have been happening all along.” In Rock County, seventy-six out of eighty highway-maintenance shop workers are now AFSCME members in good standing after collectively deciding to use the same credit union for dues payments. “Walker said the county couldn’t collect our dues,” explains Local 1077 President Marv Vike. “We’re just going through a different route.”

Like Newby, AFSCME Council 40 representative Ed Sadlowski, Jr, welcomes this embrace of “old-school unionism that we haven’t had in the past.” Already, highway maintenance workers and public employees have been forced to organize together, on the job, in response to safety problems, work-rule changes, and unfair discipline. Before Walker’s law, the union might just have filed grievances, Sadlowski notes, but “now it’s ‘get people to the picket line.’ Direct action gets the goods.” In Sadlowski’s view, “we simply can’t return to the model of having a staff do everything for workers and expect to survive as a union. Now, we actually have to involve people and make them feel like they, not their staff representatives, run their unions.”


Longtime union activist and sociology professor Stanley Aronowitz has written extensively about the unhealthy synergy between membership expectations and public-sector-union functioning, as the latter has evolved since the rank-and-file upsurge that won collective-bargaining rights for teachers and other civil servants in the 1960s and ’70s. Over time, members came to “view their unions as service providers, rather than as instruments of mobilization.” As Aronowitz notes, “The unions may fight individual grievances and negotiate decent contracts, but to call upon their members to conduct collective political fights — including direct actions that might disturb the comfortable relationship that the leadership enjoys with the employer — is well beyond the perspective, and therefore, the capacity, of the union. In short, the member is now generally a client of the union rather than its owner.”

Rand Wilson is a longtime union activist and organizer in Boston, who helped found Massachusetts Jobs with Justice. Steve Early worked for 27 years as an organizer for the Communication Workers of America in New England. This article is an updated version of a chapter in Wisconsin Uprising: Labor Fights Back (Monthly Review Books, 2012), edited by Michael D. Yates.

One Response

  1. […] membership required of those who may be opposed to the very idea of a union. Some scholars believe the NLRB could easily tweak its standards to allow for private sector minority unionism; […]

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