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Elaine Bernard Pt.1: Private sector union membership has plummeted while the
public sector has increased

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. As the economic crisis deepens, many economists have pointed to low wages, lack of real purchasing power as one of the root causes of the current economic crisis—consumer debt a result thereof. So why are wages so low in the United States? Well, clearly, partly connected, at least, to the lack of unionization. The United States is one of the least unionized countries in the industrialized world, certainly the least number of workers covered by a union contract. To try to understand why, we’re joined now by Elaine Bernard. She’s the head of the trade union program at the Harvard Law School. Thanks, Elaine. So, if I get my numbers right, we’re about 7.5 percent of the private sector are unionized, maybe 11 percent in the public sector. So why are the numbers so low?

ELAINE BERNARD, TRADE UNION PROGRAM, HARVARD LAW SCHOOL: Okay. Well, the US is seeing the decline of unions, really, as a density, as the proportion of the workforce that is in unions since 1955. But in absolute numbers, the number of folks in unions since about 1981. And most of the story is a decline in the private sector. What we’ve seen is in fact, if we go back to 1973, maybe one in four Americans who were working, whether a public sector worker or a private sector worker, was in a union. Today, one in thirteen in the private sector is in the union, whereas one in three is in a union in the public sector. So we’ve seen, in fact, the growth of unions in the public sector to a point where, you know, today it’s 36.8, 37 percent of the workforce, and huge decline in the private sector.

JAY: . And you know, so, in the private sector, the numbers have gone from 15 million down to 8.2 million, whereas the public sector’s gone from 3 up to 7.8. So talk about some of the reasons for this.

BERNARD: Well, one of the key reasons given, of course, is the law is very different. Most people don’t realize that private-sector employees are under one national law that goes back to 1935, the National Labor Relations Act. And that law has changed mostly not through legislation but actually through very undemocratic decisions made by judges who know, modestly, nothing about the workplace.

JAY: For example?

BERNARD: For example, it’s written into the labor law internationally that workers have a right to strike. Right to strike’s pretty fundamental. In US labor, private-sector law, you have the right to strike. But the judges have looked at that and said, “Hmm. You have the right to strike, and we can’t take that away, but we’ve decided that you can be permanently replaced.” Now, I teach international labor relations, and I go to other countries. And to try to explain to a normal person in another country that while you’ve got the right to strike, which means in every country that you can’t be fired for going on strike, but in the US you can be permanently replaced. So you’re not fired—you just lost your job permanently.

JAY: “Permanently replaced” means we can hire scabs, keep them, and you can stay out as long as you like.

BERNARD: What normally happens is if you then decide, “Gee, we’ve lost this strike. I’m going back to work. I admit. I give up. I yield. I’m coming back to work,” normally that means that the temporary replacement worker needs to lose their job because they’re temporary. And the worker who went on strike and therefore didn’t lose their job, just left their job for a short while to engage in legal strike activity, they are returned to their job. Well, in the United States, this striker replacement means that you’ve more or less lost your job; it’s not there for you anymore.

JAY: So unorganized workers when approached to join unions, I guess, would then obviously say, well, what’s the point if going on strike means I’m risking my job completely? So this is in fact cutting down on unionization.

BERNARD: Well, I don’t think most people don’t join unions to go on strike or to engage in anything. They join unions to gain a voice in the workplace, to be able to, you know, speak, to be able to, you know, talk to their fellow workers, to bargain collectively. And the real problem is, in the United States, it’s only the exceptional worker who’s going to do that, because employers have made it very clear in this country that they will do anything to prevent workers from unionizing, up to and including illegally firing workers. I mean, in one in four campaigns in the United States, workers are illegally terminated for attempting to exercise the rights that, you know, allegedly they have since 1935.

JAY: Now, there’s supposed to be a Labor Relations Board where this is supposed to be redressed. What’s the reality of it?

BERNARD: It takes a long time. And, you know, sometimes, you know, if you’ve been illegally fired in an organizing drive, it can take at least a couple of years to get your job back—if you get your job back—and by that point the organizing campaign is totally destroyed.

JAY: How does that compare, for example, to Canada?

BERNARD: Oh, in Canada, in most jurisdictions, there’s expedited hearings. So it’s understood that if an employee is fired during an organizing drive, that, you know, the board needs to hear that very quickly and come up with a decision within a week or so. And even if there’s, you know, things that need to drag it out, give an interim decision so that it doesn’t interfere with the election campaign.

JAY: What are some of the other legislative obstacles to organizing?

BERNARD: In America, 50 percent plus one need to make the decision to form a union. In most European countries, a few workers seeking to have voice in the workplace can bring about the creation of a works council, can join a union, can have collective voice. You know, the 50-percent-plus-one is a unique aspect to North America labor law. Our law is very complicated. It really goes back to the 1930s and needs to be understood in those terms. A lot of workers were in concentrated workplaces where—the big manufacturing industries, and the idea was that a union would organize workers by standing outside, handing out leaflets. So things like access to the workforce is greatly restricted by the courts today, so that it’s very difficult for a union to speak to workers. Can’t go on company property—it’s private property. Can’t find out who works there. Don’t have access to, you know, the employee list to be able to meet with workers to engage in a discussion. So our law has become a huge barrier to workers being able to express their desire to form a collective organization.

JAY: Well, in the next segment of our interview, let’s look at the picture of unionization in the United States and drill further into why it’s so low. Please join us for the next segment of this interview on The Real News Network.


Please note that TRNN transcripts are typed from a recording of the program; The Real News Network cannot guarantee their complete accuracy.

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Elaine Bernard is the executive director of the Labor and Worklife Program at Harvard Law School. Bernard's writings often focus on workers in the telecommunications industry, and the role technological change plays in altering work. In the last several years, she has publicly discussed how advancing technology will change how labor unions function (especially in regard to member-to-member and union-member communication and organizing).