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Elaine Bernard, Executive Director of the Trade Union Program at Harvard Law School, explains the various ways that the US legal system inhibits worker organization. Above all, believes Elaine, the Taft-Hartley Act, a post-World War II bill that brought about the ‘right to work’ principle, stands as a continuing systemic challenge for unions.

Story Transcript

PAUL JAY, SENIOR EDITOR, TRNN: Welcome back to The Real News Network and our series of interviews with Elaine Bernard. She heads the Trade Union Program at Harvard. We’re talking about unions, the economic crisis, and the United States. Thanks for joining us again, Elaine. So talk about the state of unionization in the United States. Give us a sense of the numbers.

ELAINE BERNARD, TRADE UNION PROGRAM, HARVARD LAW SCHOOL: Really, if you look since the end of World War II (and that’s where we’ve got some good numbers for), continued to grow to about 1955, and then has been in decline, really, in density since 1955. What do we mean by “density”? We mean the proportion of the workforce that’s in union versus the workforce as a whole. Today there’s 16 million union members out of a workforce of about 125-130 million workers. It’s not because people have decided to quit unions. There’s been job loss where unions are, the decline in manufacturing where unions were strong, the de-unionization in manufacturing, the tendency of unions not to be able to move into new areas. That is, the workforce has grown where unions aren’t, in the service sector. And where unions are, the workforce has been in decline. Also, we’ve seen a geographic story here, which is the strength of the labor movement has been in, you know, the manufacturing center of the country—Michigan, Illinois, New England, the Northeast, and the West Coast. And in fact we’ve seen a complete hollowing out of the labor movement in the South and the Midwest.

JAY: So is it possible some of this is connected with this cleaning out of the more militant leadership in the unions and members, and you get kind of more unions, leaders (certainly not all but more) who maybe say, “Listen, we have enough members for enough dues. We’re doing okay. Why bother with all these new immigrants anyway?”

BERNARD: Oh, sure, there are divisions in the labor movement. But remember, ’55 is the year that the AFL and the CIO came together. Sometimes, quite frankly, a little competition can really help. You know, the most densely organized sector is education. Guess what? We’ve had two unions in K to 12 education—for most of the 20th century, in fact—and yet that’s the most densely organized sector. So, you know, a little competition is not necessarily a bad thing.

JAY: Talk a bit about Taft-Hartley. What exactly was it, and what was the significance of it?

BERNARD: Taft-Hartley was a labor-law reform that was brought in to weaken the labor movement. It was after World War II, after the death of President Roosevelt, and where there was a fear after the war that, you know, unions would be too powerful. And so it allowed states to pass legislation called “right to work,” which limited the right of unions to negotiate union security clauses, so that it became a law that basically said the union has to represent and speak for everyone in the workforce, but it can’t ask those people, it can’t force them to pay union dues, and it has to treat them similar to union members in almost all ways. So it really was a way of handicapping the unions.

JAY: And that legislation’s still in effect. In fact, there’s been a lot of critique of various periods in American history where the Democratic Party has controlled Congress, controlled the Senate, or had a Democratic president, and Taft-Hartley hasn’t been repealed, and perhaps an issue even today.

BERNARD: Sure. I mean, there’s 22 states where, you know, right-to-work laws are still on the books. And in fact there are a number of other states who’ve looked at passing this legislation that really limits union rights. Taft-Hartley is one law. There’s many laws where the Supreme Court has limited what would normally be considered labor rights. And that has created a situation where, you know, organizing in the United States is very, very difficult. I think one of the reasons we do not have universal health care in this country is because we do not have a organized worker constituency for it the way we do in other countries. When you only have 7 percent of the health-care workers organized, you’ve lost one of the most important, powerful voices for universal health care, as opposed to in elementary and secondary education, where we’re close to 50 percent organized. That’s why we have a public education system but we don’t have a universal public health care for all. The story is even a little more complicated. It’s a story of sectors. What we saw is if somebody entered the labor movement in 1973, they walk. Whether they were public or private sector, 1 in 4 workers in either sector would have been in a union. But that meant a labor movement of 15 million private-sector union members and 3 million public-sector union members. By the time we got to last year, the public sector, with very different labor laws, more than doubled, almost tripled in size, so that you now had just under 8 million public-sector workers. Private sector halved, so we ended up with 8.2 million. So today the labor movement, we look at those 16 million workers, almost half of them in organized labor are private-sector workers, and the other half is public sector workers. But the difference is huge. In the case of the private sector today, it’s 1 in 13 workers is a union member; in the public sector, it’s 1 in 3. And certainly in this instance you can look—there’s no clearer demonstration than something’s wrong with the law in the private sector.

JAY: And it can’t be explained, as some people do, that just the private sector, the traditional sectors of the private sectors that tend to be more unionized, for example manufacturing, it may have gone down. But as we’ve talked about before, it went from 20 million in ’73, today to about 15 million workers. But 15 million workers is still a lot of workers. So you can’t explain the lowering of unionization simply because of a smaller manufacturing sector.

BERNARD: It’s got a lot to do with the laws, because if you said, “Well, what if the private sector had the sort of laws—.” Right now, for instance, before Congress there’s the Employee Free Choice Act.

JAY: Okay. Let’s talk about that in the next segment of our series of interviews, let’s talk about the Employee Free Choice Act. Please join us for the next segment of our interview with Elaine Bernard.


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).