Timothy Noah is the Labor & Employment editor at Politico. He has previously written for the New Republic and Slate, and is author of The Great Divergence: America’s Growing Inequality Crisis and What We Can Do About It (Bloomsbury, 2012).

Thomas Geoghegan is a labor lawyer and sometime journalist and author best known for his 1991 book, Which Side Are You On? Trying To Be For Labor When It’s Flat On Its Back. Geoghegan’s new book, Only One Thing Can Save Us: Why America Needs A New Kind of Labor Movement, is a sort of sequel. Like the earlier book, it’s part Spalding Gray monologue — equal parts comic and despairing — and part policy tome, full of provocative prescriptions for a patient that’s only gotten sicker during the past 23 years. POLITICO Pro Labor & Employment editor Timothy Noah interviewed Geoghegan by e-mail recently.

Timothy Noah: Your book appears at a notably bleak moment for the labor movement. Union density has fallen below 7 percent in the private sector. In the midterms, the AFL-CIO targeted six Republican governors and managed to defeat only one. Nearly half of all states are now “right-to-work,” meaning workers don’t have to pay union dues or their equivalent to a union that bargains collectively on their behalf. Would it be fair to describe this book as a last-ditch effort?


Thomas Geoghegan: For labor, it’s past the last-ditch stage. I think of it as a last-ditch effort for the Democrats. I’d say the book is addressed not just to labor but to the Democratic party — and to the left in general. Without a real labor movement in place, the Democrats will not be the party of the working people. And until it is such a party, it will not be a governing party.

At least in my view, the GOP is just not able to be a governing party — to stop the decay in our institutions, the continued growth in inequality, and a kind of hopelessness among people who just feel abandoned by our institutions — our political ones, corporate ones, and, yes, often labor too.

Labor’s real electoral weakness — which the midterms exposed — is not so much that it couldn’t knock out [Gov. Scott] Walker in Wisconsin. Its real weakness is that it can’t get the Democratic party to present itself as a party with an express commitment to raising wages and benefits for all Americans, including the middle class. This is at a time when even the middle class have stagnant wages, no savings, no private pensions, and we still depend on people going into significant debt to keep up demand.

Yet the Democrats largely believe the answer is not a revived labor movement, or giving people a chance to bargain for higher wages — no, basically, most of the elders in the party think the answer is just to send more people to college. Europeans I know puzzle over this: how is it that the Democrats are not a labor party? Well, they aren’t, because labor is so weak. And because labor is so weak, the Democrats are not a real labor party, and because the Democrats are not a real labor party, they come across as muddled and without a message and often saying things that mean nothing to their base.

TN: You recommend that labor stage protests targeted not at Republicans but at Democrats, and cite the 2012 Chicago teacher’s strike as an example. Can you elaborate?

TG: I think the Chicago teachers strike was a kind of paradigm strike — it really forced Democrats to decide whether the party was to be a neoliberal, corporate-friendly party or a the old time Democratic party for working people — it was symbolically a strike not just against privatization but against shortchanging kids on school books, teachers, and - yes - mental health professionals. For all the spurious talk of how the party believes in education, the Democratic establishment here has protected the business interests in this big global financial center from paying for the education of minority race poor children.

I tried to compare the situation of labor today to that of the civil rights movement in the early 1960s: labor has to force the national Democrats to take sides. The Kennedy administration did not want to take sides, but King and others forced them. Likewise, the party is happy to pay lip service to a higher minimum wage, but it does not want to take sides against business CEOs on the bigger issues of workplace democracy and higher wages and benefits. Well, we have to create situations like the Chicago teachers’ strike where the party has to take one side or other, just as John and Robert Kennedy were forced to do.

TN: You support the pro-labor left’s agenda on unions and the workplace — higher wages, fewer layoffs, more voice for workers in management decision-making — but your strategies for getting there are a bit unorthodox. The one likeliest to upset labor and the left — and to delight the right — is to accept the right’s demand for a national right-to-work law — that is, a law that frees workers from any legal obligation to pay union dues or their equivalent to a union that bargains collectively on their behalf. You’d accept that in exchange for passing a statute that defines the right to organize as a civil right under the 1964 Civil Rights Act. Explain why that would be a worthwhile trade.

TG: Yes, I did put forward, gingerly, the idea of such a bargain. But let’s say that labor could organize here as it does in northern Europe, e.g., France, Germany, Sweden, Denmark: Suppose it could bargain without winning majority votes. Suppose that unions did not have the burden of exclusive representation, [which makes them] represent even people who don’t pay dues. Suppose we had German type works councils, which employees elect, and which function like unions - and which get their funding from employers. Suppose we had the same remedies for discrimination and discharge and discipline of workers who support unions as we have for workers when employers violate the civil rights laws.

In other words suppose we could organize here the way they do in Europe.

Well, in these European countries, where unions don’t even have to pretend to represent the majority, but just a militant minority, there isn’t “agency” shop [i.e., the legal requirement that workers who choose not to join a union that bargains collectively on their behalf nonetheless contribute the equivalent of union dues]. In that sense, Sweden is a right to work state.

As long as unions are exclusive representatives and we have to prove majority support, yes, agency shop is a matter of justice. But if labor had a broader ability to represent not just 7 percent but have agreements covering 25 percent or more of the U.S. private sector workforce, yes, I suggest we at least consider a deal like the one I suggest in the book.

TN: Can you explain to non-lawyers why the remedies under the Civil Rights Act are better than the ones available under the National Labor Relations Act (“Wagner Act”)?

TG: From the employee point of view - and I represent employees under the Civil Rights Act, and the Americans With Disabilities Act, and other federal anti discrimination laws — the remedies are much better. But let me start with something that isn’t a remedy at all — namely, the right to take discovery, a process that the employee plaintiff controls. The plaintiff can discover all the relevant company records relating to union-busting, or any corporate matter that might relate to the case, or possibly lead to relevant evidence. Then he or she can put the boss under oath and ask up to seven hours of questions. Nothing like that is available under the Wagner Act.

As to remedies, unlike the Wagner Act, the employee can get not just back pay but compensatory damages, punitive damages, the right to a preliminary as well as a permanent injunction, a jury, and — very crucially — legal fees, which sometimes end up being the biggest financial cost of all to a defendant employer. Nothing like this exists under the Wagner Act.

I should note that Congressmen Keith Ellison (D Minn) and John Lewis (D-Ga) are sponsors of such a “civil rights act for labor.”

[Editor’s note: Ellison and Lewis’s bill is essentially as Geoghegan describes, but it achieves its goal by amending the Wagner Act rather than the Civil Rights Act.]

TN: Let’s talk about organizing part of a workplace rather than the whole workplace. It’s something that isn’t done now in the U.S., but that, as you note, labor unions do all the time in Europe. To non-lawyers, can you explain why you think a new law wouldn’t be necessary to make this change?

TG: Well, there are three different ways we might look at it. First of all Section 7 of the Wagner Act protects all concerted activity — even if it’s just two or three employees speaking up for everyone else. You can’t be fired for it. And that of course is a form of collective bargaining. Second, Section 8(a)(5) which imposes a duty to bargain, does not say that the duty to bargain applies only if a union has won a majority election.

Indeed, the Obama Board could impose such a duty — perhaps by rulemaking

The union would not be the exclusive representative. But let’s suppose the deal just applied to wages and benefits. The only people contractually entitled would be those in this “militant minority.” But what employer would not extend the same deal to others, who could capture the same increase by signing up with the union?

At any rate, is the [Wagner Act’s] “duty to bargain” such a big deal? Plenty of employers have such a duty in theory but refuse to sign the first contracts. The important thing is that the employer feels pressure to cut a deal - say, if the minority engages in short term disruptions, too short in duration for them to be replaced.

There is nothing that stops an employer from bargaining with a union that does not have such support — say, a union that represents just a small but militant minority. In effect, that is what Volkswagen is now doing with the United Auto Workers in Chattanooga — and it’s doing it because that is the kind of thing German employers are used to doing over there.

Professor Charles Morris, in his book “The Blue Eagle at Work,” has pointed out that the first labor contracts in the 1930s were with unions that were not exclusive representatives.

TN: The UAW claims it now has the support of a majority of the workers at the Chattanooga VW plant, despite having lost an election earlier this year. Have you been following events in Chattanooga after your book went to press?

TG: I think it’s gone more in the direction I was arguing for in the book. VW is now proposing to have “discussions” with unions that don’t represent the majority.

Of course I’m not surprised that the UAW is now claiming to have majority support — the last election was close, and Senator Bob Corker (R., Tenn) did his best to panic workers with statements that I bet many workers now believe to have been untrue. So on the part of some, I think there may be remorse.

And by the way, even if VW would be willing to negotiate with a members-only union, with less than majority support, I’m sure the UAW would much prefer to be the exclusive representative and represent everyone in the plant. Under the way the Wagner Act is interpreted and applied now, being the exclusive representative has many crucial strategic advantages. For example, it is clear that Volkswagen does have a duty to bargain.

But the UAW has been willing to give up its role as exclusive representative — even if it wins a certification as such — to have a works council in place to make the deals on plant rules that the “exclusive representative” normally would. And the UAW believes it has to be the exclusive representative in order to “give up” the right and bless a works council as an independent body that is not dominated by the employer — not dominated because the union agreed to it.

The point I’d like to leave with readers is this one: the VW-UAW story shows that we would not need a new law — maybe a change in the interpretation of existing law by the Obama [National Labor Relations Board] — to start doing things the way they do in Europe. It’s an option that under existing law is open to be explored: a labor movement that operates more like the labor movements in Germany, Sweden, Denmark and elsewhere.

TN: Another interesting idea in your book: You want states to offer tax breaks to companies that let rank-and-file employees — union or nonunion — elect half the corporate board. What makes you think corporations would go for it?

TG: I’d settle for just electing just one-third of the board.

No, Morgan Stanley Bank won’t do it, but even in the U.S., a company or two might try it. And it puts out an alternative model to our dysfunctional stockholder one.

But for [nonprofits], I’d go further. They can’t choose the place they incorporate so easily. So I’d propose mandating [nonprofits] like universities and medical centers to provide for their employees to elect one-third of the board. Not-for-profits may not be as big as Walmart, but they’re big enough, and usually trapped in their home states - they can’t go off to Delaware. That being so, a blue state or two might try mandating this limited kind of “co determination,” as the Germans call it. As it is, the boards are self perpetuating: Having employees elect at least a third may bring a bit more accountability to not for profits and make them hew closer to their charitable missions.

TN: The most haunting sentence in your book, I think, concerns employees who are no longer even “employees.” They’ve been reclassified as independent contractors so they can be paid subminimum wage with no Social Security or other benefits.

You write:“Sometimes I think: one day, every American worker will be a John Smith, Incorporated, every cleaning lady, every janitor, every one of us — it will be a nation of CEOs in chains.”

You’re writing here about what David Weil, the Boston University economist and current wage and hour administrator at the Labor department, calls (in a 2014 book of that name) the “fissured workplace.”

TG: Yes, we’re becoming a nation of temps. Even college graduates work as temps and are likely to stay at “entry level” forever, utterly disposable.

But I am not offering a “policy prescription” here except to bring back a real labor movement. That’s exactly what a labor movement is supposed to challenge. If it’s not there to keep us all from becoming a nation of temps and independent contractors, then there is no point to it.

The attempt to get rid of “employees” is new and not new — this kind of thing went on in the 1920s and 1930s too. The 1932 Norris-LaGuardia Act was passed to stop courts from enjoining strikes where the workers were trying to become employees.

We’re back in this situation, because labor is now as weak as it was back then.

We need a labor movement to fight to become employees again - and not just employees in a purely payroll sense, but employees who have some privileged position in the firm, and some right, albeit limited, to participate in its decisions. The greatest injury to our democracy — or ability to maintain a democracy — is to strip people even of the right to be employees, and to create a kind of caste system of temporaries, who have no opportunity to develop skills, to have mentors, to work their way up within the firms.

TN: One of the ironies of labor’s decline is that state and local governments are stepping in to try to fill the role once performed by labor. It’s ironic because conservative opposition to unions means a role once played by the private sector (unions) being taken over by the public sector (governments).

The most dramatic recent example was San Francisco’s recent decision to regulate retail workers’ schedules — a task that, it seems to me, would be better (and certainly more flexibly) addressed by unions if unions were powerful enough to negotiate them. Do you agree that local action on things like minimum wage and paid leave and now worker schedules is a poor substitute for “private sector” negotiations between management and unions?

TG: First of all, “We the People” do not all get to live in San Francisco.

Sure, local regulation is a very poor and very, very limited substitute, even though I favor it. How is any ordinance going to handle a company’s staffing decisions, or who gets to go on vacation and when? And in a way, it is a bad thing if this kind of thing provides some sanction for an economic system where we are all temps, or independent contractors. Companies might even welcome it to the extent it makes the powerlessness of people more bearable.

I’m all for minimum standards and Fight for 15. But come on: It’s the 21st century. With our rising level of education, more Americans should have more control in various ways and at various levels over what we do at work.

That’s what I fear many Democrats fail to get — that we need to change this corporate model, and not accommodate ourselves to it. That’s why I wrote the book.