Keynote speaker Benjamin Sachs discusses union vitality at Annual Survey symposium

The title of the NYU Annual Survey of American Law’s annual symposium on February 21 might well have ended with a question mark: “The Continuing Vitality of Unions.” In the event’s keynote, Professor Benjamin Sachs of Harvard Law School acknowledged the beleaguered condition of organized labor in the US, with ever-dwindling membership numbers and the passage of laws across the country hostile to unionization.

Benjamin SachsSachs stressed the importance of vital unions both economically and politically. “Unions are an essential contributor to economic equality,” he said. “Across time and across countries, the higher the level of union density, the more economically equal a society is likely to be.”

Pointing out that, between 1973 and 2007, union membership dropped from 34 to eight percent of workers even as hourly-wage inequality rose 40 percent, Sachs added, “When unions were active and strong, they helped ensure that the government was responsive to the actual preferences of the poor and middle class. So the decline in union density over the last few decades has contributed not only to economic inequality, but to political inequality as well.”

Sachs teased out a bit of a silver lining. “In my view, vitality in the [American] labor movement today is real,” he said. “But it’s also true that vitality is dispersed, thin, and, everywhere it exists, contested…. Organizing agreements can facilitate private-sector growth, but they’re now challenged as corrupt. New models of public-sector unionism bring union growth and are challenged as compelled association. Worker centers develop some vibrancy and are challenged by invoking the LMRDA [Labor-Management Reporting and Disclosure Act].”

In the body of his talk, Sachs discussed new approaches to traditional union organizing, such as private organizing agreements, fresh models of public-sector unionizing, and attempts to utilize state and local laws, while also examining challenges to those approaches. He then turned to new forms of labor organizing that hold some promise.

Worker centers, nonprofit organizations providing services to low-wage laborers, are a new alternative to traditional unions. The centers advocate and engage in political action on behalf of workers and provide a space for community. Since they do not participate in collective bargaining with employers, they do not require workers’ majority support to operate, making them less prey to political pushback. Recently, however, the chairman of the House Committee on Education and the Workforce asked the Labor Department to consider making worker centers subject to the LMRDA, which would significantly restrict their protest activity and forms of internal governance.

A student poses a question to Benjamin SachsA partnership between worker centers and traditional unions could bolster the potency of both, Sachs suggested: “A combination of these two kinds of worker organizations—one deeply rooted in community and the other equipped to serve as a bargaining representative—could be powerful, indeed.” He also offered the concept of a new form of collective worker organization: a minority or members-only union that could be tested out in right-to-work states that allow even workers covered by a collective-bargaining agreement to opt out of paying union dues.

The combination of non-union-supporters’ being required to be represented by unions even as those unions are forced to advocate for non-dues-payers is, for Sachs, a “problematic confluence of federal and state laws.” A members-only union that would let uninterested workers remain outside union representation while allowing supportive laborers to pay dues and enjoy the benefits of a collective bargaining agreement could be a win-win situation, he argued.

NYU Law professors Samuel Estreicher, Cynthia Estlund, and Deborah Malamud served as moderators for each of the daylong symposium’s three panels: “Unions in the Political Process,” “Unions in the Public Eye,” and “The Future of the NLRB,” respectively. Among the panelists were Steven Greenhouse ’82, labor and workplace correspondent for the New York Times, and Kent Hirozawa ’82, a member of the National Labor Relations Board.

Posted on February 28, 2014