In the wake of Walker’s Wednesday maneuver, National Review‘s Daniel Foster mourned the extent to which Americans still (or maybe more so now) recognize union rights as democratic rights, or as any kind of right at all:
To hear all the talk of the “rights” — even “civil rights”(!) — that have been stripped from public sector workers in this bill by the “far right wing” is to see Stockholm Syndrome on a massive scale…The fact is that no individual human being lost a single right in Wisconsin tonight.
The right that Scott Walker and company are desperate to deny is this: the right of a worker to sit across the table from her boss as an equal, with the security of solidarity and the leverage of collective action, and say “No.” It’s the right to say safety rules are too weak or healthcare is too expensive and to exercise voice with strength rather than to exit in hopes of finding a charitable boss somewhere else. And with it goes the right – also attacked by Walker – to act together to move your boss.
There are no workers that conservatives believe should exercise these rights -unless, maybe, they’re in a history book. Either the job you do is too important to be subject to your needs (like TSA screeners), or the business you work for is too small (like a store), or your company is too generous already (like Starbucks), or you’re not really a worker (like domestic workers), or your job requires too much independent thinking (like graduate teachers), or your job should be done by a teenager and you should go to college (like fast food), or – like public workers in Wisconsin – you don’t need an organized voice on the job because you get to vote on who runs the government.
Conservatives don’t want you to bargain collectively. They want you to take what your boss offers or be replaced by someone else who will. They want the kind of freedom celebrated by the bosses in The Grapes of Wrath: a boss’s freedom to get any work done under any conditions for any compensation they can find someone desperate enough to agree to; a worker’s freedom to agree to a boss’ terms or go hungry – or swell the ranks of debtor’s prison.
Folks are right to call attention to the rushed, maybe illegal way that Walker and company pushed through his rights-stripping bill Wednesday night (my basic approach to procedure is a) when there’s a chance to lay down procedural law, we should go for more democratic rules and trust we’ll be better off with them in the long term and b) in the meantime, we should press any legal opportunity available under existing rules – budget reconciliation, denying a quorum – to achieve just ends). But let’s keep focus on what it is that makes Walker’s bill, and the others like it (and the existing status quo for too many workers in America) undemocratic: it denies workers the democratic right to bring their vision for their workplace to the bargaining table, put it up against their boss’s, and struggle for what they sense is right for their families and for the fellow citizens they serve.
It can’t stand, and it won’t.
On the whole, I agree with your points, but I have a few thoughts, intended in the spirit of sharpening this argument.
A precise delineation of “rights,” “legal protections,” and “prohibitions,” is both tricky and crucial in this context. Most workers, including domestic workers, agricultural workers, workers in small firms, graduate students, and many public sector workers, have the “right” to bargain collectively. In the absence of some legal prohibition, they would probably enjoy that right whether or not the First Amendment guaranteed free assembly. It does, which is nice, and to the extent that anyone tried to stop a group of domestic workers from collective bargaining (either legislatively, via injunction, or by refusing to enforce the resultant collective bargaining agreement), 1A would probably help.
In some cases, the 1A right to free assembly has been overcome by various policy considerations that have allowed state and federal governments to actually prohibit collective bargaining. So, as you say, TSA screeners, public employees in some states, and various other workers are actually prohibited from bargaining collectively. Those workers have no “right” to collective bargaining.
In some cases, an existing right to collective bargaining has been transformed into a statutory protection. Prior to the NLRA, there were periods in which workers enjoyed a right to collectively bargain, and other periods (e.g. post anti-trust laws, pre-New Deal) that collective bargaining could be thought of as prohibited by various statutes. With the NLRA, workers who may or may not have had a “right” to collective bargaining, now had statutory protection of that right. But if Congress were to repeal the NLRA, all the hotel workers in UNITE HERE would not suddenly lose the right to bargain collectively, unless Congress also passed a law affirmatively banning collective bargaining in the hospitality industry (which, as I mentioned, would probably run into some 1A problems).
For public employees, my understanding is that before state workers received statutory protection for collective bargaining, it was affirmatively prohibited by the states (and by the federal government pre-JFK? I don’t know, I’m not a labor historian).
This is a little bit semantics. I haven’t read the entire Wisconsin bill, but my understanding is that bargaining is limited in some ways, there’s the annual election requirement, wage bargaining is capped, and collective bargaining rights are completely “repealed” for a bunch of workers. The former limits on collective bargaining certainly impinge on a “right.” I’m not clear on what happens when a statutory collective bargaining right is “repealed,” since my understanding is that workers would still have the right to bargain collectively, they just wouldn’t be able to rely on the statute to compel their employer to recognize/bargain/comply with the contract. But I suppose the effect is roughly the same.
In any event, Foster is wrong to claim that no “right” was lost, and of course he completely glosses over these distinctions, much worse than you (understandably and justifiably) did.
Why do these semantics matter? Because, as Foster’s article notes, we’re actually kind of getting battered on this “rights” language, and it’s because people think the “right” to collective bargaining is tantamount to a guarantee of unionization. And why, indeed, should public sector workers, or any worker, have–or desire–such a guarantee? What happened to the _other_ “right to say no,” i.e. the right to refuse to assemble? I think, instead, we need to argue that statutory protection is how we guarantee certain rights that otherwise are quite difficult to exercise. That way, when we’re characterizing an attack on statutory protections as an attack on rights, our discussion is really about the power imbalances that make collective action so hard, and the important role it can and should play in a just and humane economy.
A few other points:
1) Foster (and everyone) talks about the right to refrain from unionization, as a right that deserves some sort of statutory protection. At the risk of sounding somewhat hypocritical, I think it’s worth pointing out that anti-union workers can (theoretically) exit a union workplace to the same degree that pro-union workers can (theoretically) exit an anti-union workplace. If the right’s going to argue that people don’t need extra protection because exit is always available, then that principle should apply with the same force across the board. But us believers in voice don’t even have to embrace that fatalist and unrealistic logic. Because an anti-union worker also has, and ought to have, as much opportunity to lobby against the union and even to decertify.
2) I actually think that some distinctions between private and public sector unions rights is appropriate. Not because I’m worried about capture of electeds, or because some public sector work is simply too important to be disrupted — if it’s that important, the government should bargain to secure (and pay the fair value of) a no-strike clause. It’s because some public sector work necessarily and fundamentally interacts with other government functions that cannot afford to be overwhelmed. There can be strikes, and compromises, but there can’t be a significant prospect of complete failure. Exactly what those differences are, I’m not sure. Streamlining dispute resolution, perhaps. Indexing of certain costs, perhaps. I actually wouldn’t have a problem with banning seniority systems in public employment, provided that due process and severance benefits were adequately strengthened. Of course I’d prefer the union to bargain away seniority in exchange for better benefits, workplace flexibility, etc.
I mention all these differences because, while I agree that public and private sector workers are bound together and an attack on one is an attack on all, it’s still important to highlight the differences as we make our case for private sector unionization. In particular, the “right” to collective bargaining is very strong where you’re talking about two private actors, exchanging value within the same industry, pitting their power against one another in order to allocate profit (essentially) in what should be a fair but efficient way (if it isn’t, the firm will die). I think that can be a compelling story, and it may help to draw a mild, non-judgmental distinction between private and public sector employment in that respect.