When Antonin Scalia died in Texas last month, public sector unions got some breathing room. Friedrichs vs California Teachers Association — the case that was expected to overturn Abood vs Detroit Board of Ed in April — is likely to languish in a 4-4 stalemate until a new justice is appointed. The danger, of course, is that unions will slow down or even stop the internal reforms that were underway. Instead of putting on the breaks, they should see this gift of time as an opportunity to be even more innovative and aggressive in transforming their organizations.
Unions have good reason to resent the open shop. The average person does not want to pay for what they can get for free. Federal law recognized this “free-rider” problem in upholding the right to collect fair share fees and it is a cynical and calculated agenda that is fighting against it. Unfortunately, the legal trend is against us on this one. In the Friedrichs arguments we got an up close look at the future: fast or slow, fair or unfair, labor is losing fair share.
Whenever there is an existential threat, we humans are shocked out of complacency. It gets our attention. However, it can also result in panic, paralysis and short term thinking. In taking Friedrichs to the brink, and then pulling back, history gave unions a look into the abyss without having to take the actual fall. This is a gift that we need to appreciate.
It’s important to learn from both what the threat revealed about the internal workings of unions and what their response revealed about their readiness for change.
What the burning platform laid bare
The metaphor of the burning platform comes from a story of workers in the North Sea who faced the choice between certain death if they stayed on the burning oil rig or the risk of death if they jumped into the sea. The lesson of the story is not that people in organizations need to face certain death before they will change, but that commitment to change has to be greater than attachment to the status quo. This has been the difficulty for large, mostly successful, public sector unions since the 1990s.
What the fair share burning platform laid bare was an ugly truth: unions are out of touch with the overwhelming majority of their members. Union membership is seen as an obligation, a term of employment, and not a conscious act of joining and belonging to an organization. In spite of years of effort to shift the operating model, most unions still spend the majority of their time talking to 5% of their members who get in trouble or serve as shop stewards. Union staff see their role as doing things “for” members, and members are passive in the process.
Why should members join and pay dues to the union? In answering this, most people will point to collective bargaining. Bargaining turned public sector jobs into middle class jobs and bargaining is what is holding back efforts to strip those gains from workers today. Unfortunately, we are in an era where even huge fights result in modest settlements. Even big advances won through bargaining quickly become the ground people walk on. One statewide local that surveyed its members learned that they believe their jobs have good pay and benefits because they are public sector jobs, not because generations of union members have fought and won. The awareness of collective bargaining is highest right before the contract expires, but the difficulty of reaching agreements, and the threat of the open shop, have led many unions to sign longer and longer contract terms. As the primary purpose of the union, collective bargaining is becoming less visible and therefore less valuable as a way to attract and hold union members in a unionized environment.
As preferable as they are, mandatory union fees are an anesthetic that dulls the demand for change. Without the economic incentive, there is less of an incentive to listen to what members who are disaffected think or feel. Union members elect their leaders and even the most visionary leader needs to hold the loyalty of his or her followers. So they tend to listen most to the complainers and the supporters, and let the other 90% alone. When there is no immediate negative consequence to being out of touch, the pressure to change feels theoretical and therefore moves slowly.
One of the places unions have suffered from this dynamic is in their data systems. They haven’t needed to know their universe of members with any granularity, so data hasn’t been kept up to date and is often difficult to access, particularly for front line staff. Holding information tightly has been a cultural norm for most unions. As a result, current data systems are almost willfully inaccurate and woefully inadequate to the post-fair share challenge.
Another area where unions have changed very slowly is in the role of staff and member leaders. Since the 1990s unions have talked about changing from a focus on solving individual members’ problems to a focus on engaging members in campaigns. Actual change has come very slowly. Staff do feel increased pressure to produce — on political action recruitment and now membership sign up, for example — but this has been layered on top of their previous responsibilities and approach. Innovations that successfully shift the fundamental relationship between staff and members are few and far between.
There are wonderful and hope-inspiring examples of where this dire portrait is not true; where union members are leading, members are engaging in mass numbers, information is flowing and technology is assisting. There are even examples of where unions are innovating, with mixed results. They are what we need to learn from and build on, not the evidence that change is or isn’t needed.
The brief gift of time
On February 12th, West Virginia passed the “Workplace Freedom Act,” joining Michigan, Wisconsin and Indiana in reversing decades of established labor law. At the same time, nationally, an estimated 28 Friedrichs-like cases are working their way through the courts. New lawsuits are filed every day. In other words, we have time, but not a lot of it.
It is in this time period — however brief — that we need to invest heavily in even more ambitious change than we have seen so far. Unions that were rapidly upgrading their data systems and running member outreach programs should continue those with the same sense of urgency. And at the same time, they should create the space and resources to experiment with new approaches. Because the challenge of losing fair share is much bigger and more complex than just how to sign people up. The challenge is how to evolve the very nature of the union itself so that it can thrive in a radically changed environment.