Robin J. Cartwright responds to Matt Dimick’s “Counterfeit Liberty.”

Which institution can more effectively protect workers’ interests: the state or labor unions? In “Counterfeit Liberty,” Matt Dimick uses comparative labor history to argue for the latter.

He distinguishes between worker rights and worker freedoms. Worker rights are claims that are enforced by the state and which the state actively prevents others from violating. This contrasts with worker freedoms, which are things the state permits workers to do, but does not prohibit others from interfering with. For instance, if workers have the freedom to strike, that means the state does not interfere with a strike (e.g. by giving police escort to scabs) but if workers have the right to strike, then not only does the state not interfere, but it will also punish any employer that interferes with the strike.

Although worker rights seem like a more robust protection, Dimick argues that we should be wary of relying on them, and that labor law reform should actually prioritize expanding worker freedoms over worker rights. This amounts to saying that labor unions are more effective in protecting workers’ interests than the state.

I agree with Dimick that we need to reengage mass worker collective action, however I think he underestimates the ways that unions can fail to protect workers’ rights even when they are not dependent on the state.

The state vs. unions as enforcers of workers’ interests

Dimick is entirely correct in recommending that we focus more on removing restrictions on workers’ actions rather than getting the state to directly protect workers’ rights. If the state could be relied upon to consistently protect workers’ interests, it would render the union redundant and unnecessary. Indeed, FDR himself was originally reluctant to support the Wagner Act (the National Labor Relations Act), believing it was the role of the government to protect workers’ rights – not workers themselves. He changed his position after the strike wave of 1934. As Dimick correctly points out, judges, lawyers, and politicians frequently cite the protections of workers’ rights in law to argue that restricting workers’ collective direct action does not undermine workers’ rights, that one actually implies the other.

State protection of workers’ rights tends to either displace labor unions or render them dependent on the state, shifting power from workers to the state. Once politics shift in a more anti-union direction, labor unions dependent on the state see their power and membership plummet. What the state gives, it can take away. If your union is so weak it requires the state to impose arbitration in order to get a first contract, then it’s actually the state, not your union, that got any concessions contained in that contract. Any union unable to secure a first contract without arbitration won’t find getting a second or third contract any easier, and will be unable to stand up to the state if it tries to impose a contract that forces worker concessions or decides to stop arbitrating altogether. In the rare case where we are able to influence the law, we ought to prioritize removing restrictions on worker activity (such as laws against secondary strikes, blockading your workplace, or workplace occupations) over getting the state to force employers to treat us better.

Activists and labor relations professionals in the United States often take the current structure of labor relations, with NLRB elections, contracts, dues checkoffs, and the like, for granted. But these practices actually vary greatly from country to country. In France, unions generally do not sign American-style contracts and usually have an open shop, while the state provides many of the benefits that in the US would come from a union contract. In Scandinavian countries, the majority of the workforce is unionized and unions do sign contracts (complete with no-strike pledges), but labor relations are largely unregulated by the state (there is nothing like the Wagner Act or NLRB elections, or even a statutory minimum wage), the open shop is the norm, and collective bargaining is usually conducted with industry-wide employer associations rather than with individual employers.

Much of Dimick’s essay is an excellent comparative analysis of labor history and law in the West that traces the historical development of these different labor relations models. Dimick argues that in English-speaking Western countries, capitalism (as a social relation) developed early, before industrialization, and consequently so did labor unions. This pre-industrial labor movement was relatively decentralized and more oriented towards crafts and individual employers, a tradition that continued long after the industrial revolution started. Labor unions thus developed a strong workplace presence, leading to frequent industrial unrest, but a weak “coordinating capacity.” By “coordinating capacity” he means a national union structure capable of maintaining control over its locals and members, negotiating with employers (or employer associations) on a national, industry-wide level, and insuring union members abide by any collective bargaining agreement the union signs. The lack of a strong “coordinating capacity” in English-speaking countries prevented them from developing a system of national, industry-wide, sectoral contracts without state-sponsorship, as they did in Scandinavia. When labor unrest grew to intolerable levels, the state stepped in to compensate for organized labor’s lack of “coordinating capacity,” resulting in organized labor’s dependency on the state. After politics shifted in a more conservative or neoliberal direction in the late 20th century, the state scaled back its support for organized labor, causing a sharp decline in union membership in most English-speaking countries.

In Scandinavia, capitalism (and thus labor unions) did not develop until the industrial revolution had already begun, and the labor movement organized broad-based national unions relatively early in its history, skipping the local employer-oriented unions that have always been part of the Anglo labor movement. Consequently, according to Dimick, Scandinavian labor unions had greater “coordinating capacity” that allowed them to self-regulate and abide by national industry-wide sectoral contracts, obviating the need for labor legislation. When Scandinavian politics shifted in a neoliberal direction in the late 20th century, union membership still managed to stay above fifty-percent of the workforce.

In France, and much of continental Europe, capitalism also developed alongside the industrial revolution, and, like Scandinavia, their labor movement also quickly organized broad-based national unions, skipping local employeroriented unions. Unlike Scandinavia, their labor movement repeatedly split along ideological and religious lines on a national level. As a result, in Dimick’s view, they had a weak “coordinating capacity,” which prevented them from developing Scandinavian-style labor self-regulation, and also a weak local employer-level organization, which prevented them from developing Anglo-style dependency on the state. Instead, when the state decided it needed to grant concessions to lessen labor unrest, it simply displaced unions and directly provided benefits to workers itself, even setting up state-sponsored grievance machinery (the works councils) that is normally directly organized by labor unions in other countries.

“Coordinating capacity” amounts to enforcement from above

Dimick’s analysis of these countries’ labor history is broadly accurate, but his term “coordinating capacity” isn’t really the best phrase. What Dimick is really talking about is the level of authority national union leaders have over their members, and their ability to enforce no-strike pledges. It’s true that union locals in the United States predate national labor unions by some 30 years, and that there is a history of conflict between national (and international) unions and their local affiliates, with the latter sometimes endorsing wildcat strikes in defiance of the international. Some contracts have collapsed because of this, and the wave of wildcat strikes in the 1960s and 1970s played a role in convincing employers to turn against unions. Had more local unions been willing to accept international leaders’ sweetheart deals, and been less likely to engage in wildcat strikes, it’s probably true that the United States would have a higher union density and less regulation of labor relations. However, this does not mean workers would have gotten more concessions from employers, or brought the United States any closer to revolution. Dimick’s phrase “coordinating capacity” can mislead the reader into thinking national labor unions were better able to coordinate their actions against employers and thus win more concessions, but actually they were better able to get their members to abide by contracts and not wildcat, which made employers more willing to sign contracts with unions.

There are cases where American labor unions have engaged in industry-wide bargaining akin to a small-scale version of what they do in Scandinavia, although this is the exception to the norm. Telephones & Steel used to be like that, and there have been local & regional versions like the Protocols of Peace and some local arbitration between employer associations and the Knights of Labor in Philadelphia and New England. Many of those local efforts did experience wildcat strikes, which made employers reluctant to negotiate with union leaders. In telephones, the industry was run by a monopoly (AT&T) for most of its history, so an employer-based approach had to become an industry-wide one. In fact, the union was originally organized on a decentralized basis as the National Federation of Telephone Workers, but it reorganized on a top-down basis (and renamed itself the Communications Workers of America) after a lack of coordination between locals caused them to lose a major strike. Similarly, the company U.S. Steel produced more than half of all steel in the United States, so any successful employer-based unionization by necessity had to be industry-wide. Despite these partial exceptions, Dimick is correct about there being less industry-wide bargaining in the US as compared to Europe.

In Scandinavia, although Dimick is correct that the state does not regulate labor relations the way it does in the U.S. and Canada, it does other things to moderate and co-opt unions. The distribution of various benefits (mainly unemployment insurance) from the welfare state is often done via labor unions rather than directly from government agencies. This discourages unions from being more militant, because if they challenge the state/employers too much, they can be cut off from these benefits. It also weakens the union’s incentive to challenge the boss, because it can use benefits to attract and retain members even if they obtain no concessions from employers. In a different article, Dimick advocates that the US adopt a similar system on the grounds that it would boost union membership, yet this policy amounts to a different form of dependency.

Dimick correctly notes that the practice of certifying a union as the exclusive representative for individual bargaining units dates to pre-Wagner Act procedures on the railroads, but wrongly attributes this to a weak and divided railroad labor movement that lacked adequate “coordinating capacity.” The reason federal labor relations legislation in the U.S. started with the railroads is because they are clearly part of interstate commerce and so legislation there had a lower chance of being struck down by the courts as unconstitutional. The U.S. constitution states “Congress shall have power to … regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Until the 1930s, the courts interpreted this clause in a manner that restricted Congress’s power by ruling unconstitutional any legislation that applied to commerce contained solely within one state. For example, in 1918, the court struck down a federal law banning child labor on the grounds that Congress had overstepped its authority by regulating intrastate commerce. Everyone agreed that railroads crossed state lines and were therefore part of interstate commerce, not intrastate commerce, and consequently everyone agreed that Congress had the constitutional authority to regulate railroads. All sorts of legislation (including labor legislation) initially applied solely to railroads, and later expanded to other industries.

There were three major strike waves in railroads (in 1877, 1885-86, and 1893-94) before the federal government began enacting labor legislation. Congress started passing laws to appease railroad workers out of fear of another strike wave erupting in the early 1900s – when lots of other labor unrest was erupting. The first of those waves was organized by non-union workers, but the other two were overseen by formal labor unions – the Knights of Labor and then the American Railway Union. Their ability to control their members didn’t really play a big role in their downfall; the national guard (and racial division) was a bigger issue. The American Railway Union only allowed whites to be members (over the objections of its president, Eugene Debs), turning workers of color into a source of scabs. The reason organized labor in railroads was weak and divided in the early 1900s is because the stronger unions had been destroyed by employers & the state. Dimick’s claim that “union organization on the railroads is a classic example of the early-industrialization problem” is therefore incorrect. Railroad unions were able to overcome the local craft-based nature of the early American labor movement and unify into one big union twice. Both unions were unable to overcome racial divisions and opposition by employers and the state, causing the railroad industry to revert to craft unionism where unions survived at all.

There are other differences between the US & Scandinavia labor history not addressed in Dimick’s article, as well. Scandinavia does not have the same record of imperialism, which makes organizing unions easier as that makes society less militarized (which means unionists tend to face less police/military violence). It also means it’s more difficult for an employer to move to a colony/satellite state to escape unionization or pursue lower wages. Prior to the 1960s, Europe also had greater levels of economic inequality than the US, which fueled European labor and socialist movements. The United States, Canada and Australia are all significantly larger than most European nations, which makes it more difficult to organize national unions and to maintain their authority over distant locals.

Although it has started to change somewhat in recent years due to an uptick in immigration, Scandinavia also does not have the same history of ethnic division as the United States, which made unionization easier as organizers did not have to overcome racial conflict or prepare for employers to use race in union-busting. A racist all-white union is more likely to be successful if it is in a location where all of the workers are white than if it is in a location where the working class is split into several races. There is an extensive history of American employers using race as a union-busting tool; it’s one of the reasons the Southern U.S. has always been unionized at a lower rate than other parts of the country. One of first large-scale attempts to organize Southern workers in U.S. history, by the Knights of Labor in the 1880s, was destroyed when employers used inflammatory racial appeals to convince most white workers to abandon the union over its inclusive policies towards blacks. Once the southern Knights were a largely black union, the state proceeded to massacre them. The CIO’s more conservative attempt to organize the South in the 1940s, Operation Dixie, also failed partly due to racial divisions.

No-strike pledges substitute union bureaucracy for worker power

Dimick is correct about many things. His analysis of why labor history in the West evolved differently in Scandinavia, English-speaking countries, and continental Europe is more right than wrong. Labor law reform should prioritize worker freedom over worker rights. Labor unions should strive to minimize dependence on the state. However, he is critically wrong about the need for unions to self-regulate by signing away their freedom to engage in collective direct action against employers. Unions should not be in the business of helping employers discipline workers. Just as legalistic labor regimes tend to substitute state power for worker power, union self-regulation tends to substitute the power of union bureaucracy for worker power.

The biggest flaw in Dimick’s article is his rejection of what he calls “myopic syndicalism” and his support for no-strike pledges. By “myopic syndicalism” he means the view that unions should never agree to any restriction of concerted activity, such as by agreeing not to strike during the term of a collective bargaining agreement. His view is that unions ought to self-regulate by voluntarily agreeing to temporarily forfeit direct action in exchange for concessions, and should compel their members not to violate these agreements. The problem with his stance is that unions agreeing to restrict their own concerted activity turns them into an obstacle for obtaining additional gains and an additional means for employers to control the workforce. Signing no-strike pledges also takes away unions’ revolutionary potential; you can’t wage a general strike if you’ve signed a no-strike pledge.

Dimick prioritizes worker freedoms over worker rights because he believes unions are more effective in protecting workers’ interests than the state. But his endorsement of union self-regulation and forfeit of direct action undermines the very source of union power.

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