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Ever since Reagan fired the air-traffic controllers, unions have faced the most hostile environment of any organization in America. The legal, political and cultural environment has resulted in a decline of union membership from 16% in 1989, to 8% of private sector jobs in 2004. And that’s down from the 1950’s high water mark of 36%. Why and how that happened gives insight into the AFL-CIO/SEIU split we see in labor. Let’s look at the why’s and how’s.

You can’t talk about the legal environment without consulting The Source – the US Constitution. The First Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Consider how easy it easy to “peaceably assemble” as a church or corporation.

When I was a kid, many found Southern Baptists to be insufficiently conservative. As a result, a Free Will Baptist delegation was invited to discuss a new church in our area. The first cottage prayer meeting was held at our house. Shortly thereafter, property and a building was leased, and voila! – a new church was born. Minimal paperwork, few regulations, no government interference. Easy as falling off a log. Just like the First Amendment says.

A professor of mine formed a Delaware corporation, the sole asset of which was his sailboat. Why? If one of his sailing guests were injured, they could only sue the corporation, not my professor. He recouped the filing and maintenance costs in reduced insurance premiums. To form a corporation, you basically send the right papers to the state, pay the fee and you’re off and running. Easy as falling off a log. The state can’t stop you. And forming a proprietorship is even easier.

Contrast that with forming a union. Opposed by business and government, citizens fought and died for the right to “peaceably assemble” as a union. When’s the last time anybody died forming a church or company?

Union organization is regulated by law. Service and production unions are governed by the National Labor Relations Act and transportation unions by the Railway Labor Act. Basically, these laws ‘guarantee’ employees the right to organize and prohibit the employer from interfering with or retaliating against employees. That’s working out so well, too. Particularly when the President appoints this guy to chair the NLRB. And this nice lady as Secretary of Labor. 

Let’s say I want to lead a drive to organize your workplace. First, I need access to employees. Do you have a complete list? Can you get one for me? What are the chances your company will just hand it over? Second, I’ve got to meet with employees – the company break room at lunch sounds good, right? They’re going to let me right in, and take no notice of your attendance, yes? Tell you what, let’s skip the break room, and meet after hours at a restaurant. The company surely won’t mind. Now tell the truth – most of you would not be caught dead with me, because you need your job, and you know your boss. Funny, starting a church or a company is a whole lot easier. Why?

Now I’ve got a “showing of interest” to the NMB or NLRB. The numbers vary, but I’ve got to show bona fide sign-up cards of about 30% of the work force. Then I can petition for an election. I can also elect to file with a majority and petition for immediate recognition – a card check – which the company can, and usually does, refuse.

The time from petitioning for an election to actually holding one can take months, or even years. During that time management, with ample resources and full access to employees, gets their message out. Boy, forming a church or company sure is easier!

Now let’s look at the recent political environment. When 9/11 grounded the airlines, the government formed the ATSB to guarantee loans to stricken airlines. According to a speech I heard from International Association of Machinists and Aerospace Workers VP Robert Roach, when he met with White House advisor Carlos Bonilla, Bonilla stated any loan guarantees would be tied to major labor concessions. Did labor cause the crisis?

Under this Administration, companies are using bankruptcy to cut union wages, benefits and reduce union membership. First it was steel. Then airlines. Now, automakers.  After Frank Lorenzo took Continental Airlines into bankruptcy in 1982 to break labor contracts, Congress amended the bankruptcy code to prevent future abuses. 20 years later, corporate America took advantage of a pro-business environment, and got busy breaking unions. At US Airways, the tactic was concede or liquidate.

The culture is set against unions too. Due in part to a media campaign that happily carries corporate water (Friedman and free trade, for example), unions are not well- portrayed. Corporate mistakes are glossed over or not even covered – union mistakes are amped up, or created out of whole cloth. Remember US Airway’s Christmas meltdown when a boatload of bags went missing? Management blamed it on an employee sickout, and the media, without checking with a single union source (fair and balanced, what?), ran the story. Later, the DOT put the onus on poor planning – a management function. Which version do you remember?

The media that loves to portray unions as corrupt and mobbed up played down the fact the cops and firemen that ran into the WTC on 9/11 were union members. That the pilots and flight attendants on the high-jacked flights were my union brothers and sisters.  That the arsenal of democracy is assembled, in large part, by union members.  But the driving force is the contempt in which moneyed interests hold labor. I’ve had the opportunity to attend some black-tie affairs for the high and mighty, and after a few glasses of a middling chardonnay, the employee-bashing flows. Such a drag on the portfolio! And how dare we ungrateful bastards complain – we should be grateful to have a job! And organize? Commie bastards, I’ll show them – I’ll send their job to a maquiladora! I’m sorry, but when Wall Street cheers downsizing, layoffs and outsourcing, it’s not hard for me to know who my enemy is.

The AFL-CIO turned out the vote in 2000 and 2004, and came up short. Over that same period, due to offshoring and bankruptcies in aviation and steel, AFL-CIO membership declined dramatically. AFL-CIO elected to continue business as usual, emphasizing political change. In response, SEIU leader Andy Stern led a breakaway movement, Change to Win, which will prioritize organizing.

There are other fundamental differences. AFL-CIO emphasizes the traditional manufacturing jobs that have been their bread-and-butter. Change to Win accepts the sad fact those jobs are not coming back, and focuses on service jobs. AFL-CIO still looks to the employer to provide pensions and healthcare. That strategy is in question, given that even Exxon’s pension fund is actuarially, though not legally, underfunded. Moreover, Toyota can profitably operate in America, while GM can’t, in large part because Japan has national healthcare. SEIU is working to build a partnership among small business owners, policy makers and citizens to build an affordable health care system. AFL-CIO is top-down. SEIU, through PurpleOcean.org, invites the public participation. Check it out!

At bottom, SEIU recognizes current reality. AFL-CIO is fighting the last battle. Unions would have been wiser to understand they could not stop globalization. Even if America had not participated, the accursed French, or somebody, would have, and locked in a cost advantage. Far wiser to have conditioned acceptance of free trade on guaranteed income and health care, and generous access to education for displaced workers. Speaking as an outsourced employee, those three items mean far more to me than whether my union leadership continues cocktail weenie bogarting.