Wither the NLRB?

Union members protesting the NLRB in 2007

A blog exploring what appears to be a turn away from NLRB elections by the mainstream unions in America.  Why is this happening and what does it tell us about the state of working class self-organisation in the States?
 

Although there can be little doubt that class struggle in on the uptick, the past month has seen two remarkable events.  The first was the UFCW-backed Walmart strikes on Black Friday.  The second was the series of SEIU-backed fast food walkouts in New York City.
 
What’s immediately evident about these strikes is that they symbolise quite a dramatic shift in the tactics of the American trade union establishment. This is especially noteworthy given that the UFCW is one of the largest unions in the country. Similarly, the massive SEIU led the breakaway of Change to Win from the AFL-CIO. So we're not talking about independent unions taking it upon themselves to innovate. Nor has it been small unions who may have to operate differently due to lack of resources. The unions who've helped organise these strikes are the big boys of big labor.

What went before

For decades, the modus operandi for the American trade unions was to have workers sign cards agreeing that they wanted to have a NLRB-overseen collective bargaining election. Once roughly two-thirds of the workforce was in support, the union would petition for an election.

Worker mobilisation was secondary to the election and the idea of a recognition strike was seen as a relic. Little effort was made on getting workers to join as individuals and then encouraging them to organise on the job. Instead, unions focused on gaining political influence. Members were mobilised not to support organising in non-unionised workplaces, but as fodder in the campaigns of Democratic politicians.

Such a legalistic strategy assumes (1) both the union and the employer will operate in good faith and (2) that the NLRB—and by extension US labor law—is, if not in favor of unions, is at least a neutral arbiter.* Needless to say, such assumptions have seen a dramatic drop in the number of Americans working under a union contract since the 1970s.

So what explains this new found willingness of the trade unions to undertake strikes so at odds with their long-standing strategy?

Two explanations

The simplest explanation would be that trade union leaders have come to see the error of their ways. Academics who track such things have argued for a number of years now that the most successful recent union campaigns have been those which eschewed the NLRB. And, in fact, some unions have had some moderately high profile successes organising outside the NLRB.

Additionally, a book entitled Reviving the Strike has gained currency across the American labor movement. I haven't read it, but my understanding is that it advocates such tactics as have apparently burst onto the scene in the past month.

On the other hand, this could be simply the unions exploiting the shopfloor anger that has inevitably accompanied the deepening crisis to ensure their continued existence. After decades of decline, the unions need to re-establish themselves.

Both in workplaces and on the streets, the working class has begun to mount a defense in this latest round of the class war. Unsurprisingly, it's been sporadic and incomplete and full of contradictions, but it's been there. Movements like Occupy and the mass protests seen in Wisconsin have alerted the trade union bureaucracy that they are no longer anything close to the default institution workers turn to in times of crisis.

Consequently, the business unions have had to give in somewhat to the self-organised spirit of those movements. Workers who have no existing loyalty to the trade unions might not be willing to wait for months and months while employers duck, dive, and delay NLRB elections. That means trade unions, if they are to remain legitimate conduits for channelling worker discontent, must adapt.

For the beleaguered unions, interestingly, wildcat strike waves allow them to establish their legitimacy in the eyes of both capital and labor. For pissed-off workers, the unions come in with their professional organisers, their specialist knowledge, and their financial resources. For employers, the unions offer themselves up as 'responsible leadership'.

It's not surprising to hear the reports from the Black Friday strikes that UFCW were very keen to keep pickets orderly and ensure that entrances remained unobstructed. Union officials let the police know in advance when and where protests would be and what sort of activity they'd be permitting on the picket lines.

The message to management in this situation is clear: the union is here to keep this from getting too antagonistic. You're better off with us than hedging your bets alone against your workforce who, unconstrained, might actually try tactics which effectively disrupt business.

History repeating itself?

There's a historical comparison to be had in all this. The NLRB came into being in 1935 at a point when self-organisation and self-activity amongst the industrial workers who formed the bulk of the American proletariat was increasing dramatically. Six years into the Great Depression, there was one expectation shared by capital, labor, and the government: shopfloor anger.

Certain sections of the bourgeoisie, in particular those represented by FDR and his New Deal programs, saw unions as part of the remedy to this. Acting without any institutional restraint, workers could issue unreasonable demands, spread strikes, and potentially challenge the very notion of private property through their actions (whether they realised it or not, it's worth adding).

Trade unions, on the other hand, are legal bodies. They have named officials and large treasuries. They can be fined and their officials jailed. They can be regulated and brought into corporatist structures to ensure labor peace.

At this point it's probably worth quickly discussing that anomaly of labor law known as Section 7 of the National Labor Relations Act, the “concerted protected activity” clause. By any reading of the clause, it gives all American workers the right to strike with or without a membership in a union. But it should be understood in the context of the goals of the larger act.

As has been argued by Staughton Lynd, section 7 was directed at the things workers were allowed to do in the process of forming a union. Once the union was formed, their was an expectation that a no-strike clause would be included in the collective bargaining agreement. The recognised union was then expected to accept responsibility for enforcing the contract on both workers and management. For the unions, the trade off for this was they gained government sponsorship via the NLRB and, from capital, gained the dues check-off system that ensured a steady funding stream for their officialdom.

Such an arrangement was supported by that supposed bastion of militancy, the early CIO. In fact, the organisation pitched itself to capital on the grounds that “A CIO contract is a guarantee against strikes”.

To put all this another way, the National Labor Relations Act granted unions legal legitimacy in exchange for policing worker unrest.

Playing politics

I also wonder—and this is purely conjecture here—if the timing of the strikes hasn't been political.

First, there's the obvious: that this strike wave has come in the aftermath of Obama's re-election victory might mean the unions are feeling a bit more secure. Of more interest however, would be whether the unions have intentionally pushed for (or rather allowed) these unofficial actions in the wake of the loss of the “Employee Free Choice Act”.

Despite alarmist claims from the right that the EFCA would be “the demise of a civilisation”, the act proposed nothing more than to slightly strengthen the hand of big labor. A revolution it was not.

Rule number one is that history doesn't operate in hypotheticals. However, I'm willing to bet that if the EFCA had been introduced in the aftermath of a wildcat strike wave, capital would have been lobbying both major parties for a mechanism making it easier to ensure disputes stayed within definable boundaries. The EFCA would have done just that. It would have made it easier to secure union recognition through a simpler NLRB-overseen card-check procedure, thus increasing the ease by which trade unions could court pissed-off workers in hopes of securing workplace representation.

The trade unions, in turn, may now be hedging their bets in the knowledge that capital may reconsider its opposition to such a bill if they're given a taste of the potential of unfiltered class power. In that bet, there's valuable lesson for America's workers, too.

* * *

I should conclude by saying that I don’t think the NLRB is finished. Just the opposite, in fact. The unions would like nothing more than an opportunity to strengthen their legitimacy by having a union-friendly government strengthen the privileges afforded to them by the law. This would most likely come through a strengthening of the NLRB.

Of course, having a more pro-union government shouldn't be the aim of workers.

The unions mediate the power that we hold as the productive class in society. Governments which give privileges to unions do it as a means to check that raw power and channel it through manageable structures. Instead, we need to resist this inevitable co-optation as much as we need resist to the direct attacks we face at work.

After all, it will only be by exercising our power, unfettered, that the class will come to understand the full extent of the power we hold.

--------

*US Labor law is in favor trade union representation. The National Labor Relations Act which created the NLRB was designed to give trade unions legitimacy under the law.

There is a larger point, however, which is that at high points of class struggle—the 1930s being the classic case—capital turns to the trade unions to ensure workplace conflict stays within certain, legally defined boundaries. The ruling class is rarely open about this (although not always, as I've written about here) and at low points of struggle, capital will still take the opportunity to malign unions and push for a retreat of the limited protections won by the working class. This means attacking the NLRB, stacking it in their favor, and breaking unions. But it rarely goes so far as to push the state to abolish trade unions altogether. No doubt, capital (or at least certain sections of it) maintains an institutional memory of the utility of trade unionism as a check on independent and unrestrained working class activity.

EDITED for accuracy (see comments below)

Posted By

Chilli Sauce
Dec 5 2012 11:50

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  • What’s immediately evident about these strikes is that they symbolise quite a dramatic shift in the tactics of the American trade union establishment.

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Comments

huli
Dec 5 2012 16:31

I believe that UFCW is still part of Change to Win, along with SEIU.

What is most applicable from the Joe Burns book to the strategy being deployed by SEIU and UFCW is reference to a 2005 proposal made by the AFT, suggesting that

Quote:
when organizing in new industries, unions establish independent organizations that would not be subject to lawsuits by employers. This type of organizing would "require creating new unions from scratch and even adopting unconventional tactics unencumbered by the restraints of current labor law." Understanding that unions have much to "risk and lose through the purposeful violation of Taft-Hartley," the proposal stated that these so-called "start-up unions," possessing no financial assets, "might enjoy greater strategic and tactical flexibility and would have substantially less to lose through the smart and strategic use of unconventional approaches where appropriate."

(Burns, Reviving the Strike, p 179. (I cannot find a PDF of the relevant AFT document, titled "Inclusive Strategies for Labor’s Renewal" but I found a fuller reference to it here: http://www.nathannewman.org/laborblog/archive/001978.shtml.)

I find it interesting that it happens to be two of the worst, most class-collaborationist unions in the US today, both under the banner of Change to Win, that are pursuing this strategy. I trust UFCW and SEIU about as far as I can throw them, so I am very skeptical that they are deploying this strategy in a way meant to invigorate the labor movement in any authentic way.

(I still don't understand how these fronts for established unions avoid being found to be "agents" under Taft-Hartley.)

huli
Dec 5 2012 16:47

I just noticed this blog post was linked by Joe Burns on FB, BTW. His comment is "Here is a posting from apparently a UK-based labor blogger. The author takes a view that unions organizing recent strikes are just trying to get ahead of a militant working class which I don't think describes the current situation at all. Nonetheless, article is worth a read."

Also, I don't think that EFCA was designed to make it "easier for unions to win NLRB elections" - it was designed to circumvent NLRB elections by triggering recognition by the employers through the card-check process.

Chilli Sauce
Dec 5 2012 23:08

Thanks for the comments, Huli.

You're entirely right about UFCW being in CTW. I guess I got confused because when I was in the UFCW way back when it was AFL-CIO. Libcom is being slow as a bastard today so I don't have energy to fix it right now, but I'll put in a correction tomorrow.

On the NLRB, those card-check campaigns would still be run through and overseen by the NLRB, no? But, you're right, my language was sloppy and I might clean that up a bit tomorrow as well.

Interesting to see that Joe Burns has picked up on this (I'm not going to lie, I'm mildly flattered). I will point out that I am currently UK-based but I'm an American by birth and was active as a unionist in the States for years.

I'm not totally sure I'm arguing the trade unions are "trying to get ahead of a militant working class". Rather, I think the unions are harvesting the inevitable and growing anger that's coming with the deepening crisis. In the 30s, however, I think that would be an accurate description.

In the present, what I'm arguing is that the class shouldn't allow the trade unions to mediate that anger--regardless of the degree it's present withing the class. Instead, we should build rank-and-file organisations whose tactics aren't limited by (1) labor law and (2) the constraints faced by workers when they're represented by organisations whose mediating role within capitalism gives officials a differing set of interests than the membership.

In any case, Joe, if you're reading this, I'd love to hear a more of an in-depth critique and have a bit more of a conversation.

kevin s.
Dec 6 2012 20:26

Hey all, hey Chili, hah that's hilarious about Joe Burns...

I really like this article a lot, even with the minor factual slip-ups (which it sounds like will be corrected shortly). I don't know if they accept non-IWW-written articles (or former IWW member-written articles) but it would be could if you submitted this to the Industrial Worker. A couple thoughts....

- That the unions are now innovating is clear, but apart from the opportunism element, folks I think also are quick to see a mainstream-union-ized version of "radical" stuff sometimes even where there's isn't anything remotely radical worth noting, as in the OUR Walmart organization which some folks are quick to compare with SWU and JJWU as a "minority union" or whatever. The only point of comparison between is a generally smart (if sometimes stomach-churning) use of mainstream media appeal, and what I consider to be a weaker aspect of the SWU and JJWU campaigns- their tendency to detract and break away from the "bigger mission" of revolutionary unionism and the IWW in particular. That said, SWU and JJWU are both a world apart from OW in that the latter is openly corporatist and is so "independent" that it doesn't even pitch itself as a union but rather as something very much like a wannabe company union that "tragically" the company won't accept - which is more appropriate for the UFCW in that the UFCW for many years has been unsuccessfully trying to sell itself as an pliable business partner by selling out its members to an extent that makes even SEIU look radical.

I agree with huli that SEIU is one of the worst collaborationist unions, however they are also more aggressive and shrewder about adopting certain forms of "controlled militancy" (in particular forms that are "media-savvy" and are viewed as still being "responsible" - civil disobedience actions, carefully stage-managed strikes and pickets, etc.) in pursuit of their goals, which is why they are the "fastest growing union in America." SEIU have close to perfected in the current context what you describe in the article:

Quote:
For the beleaguered unions, interestingly, wildcat strike waves allow them to establish their legitimacy in the eyes of both capital and labor. For pissed-off workers, the unions come in with their professional organisers, their specialist knowledge, and their financial resources. For employers, the unions offer themselves up as 'responsible leadership'.

While it's hard to say now, and I could easily be wrong, I suspect the fast food drive to be significantly more successful than the Walmart campaign. And it's also worth noting that SEIU is more aggressive in how they "sell" their campaign as well - it's explicitly a union drive, an industrial union drive at that (it's organized by what is basically the SEIU/"independent" equivalent of an industrial organizing committee and involves several different fast food companies in the same area). While I have no love at all for SEIU, and they are actually pretty closely partnered with UFCW and share the same corporatist goals and "vision," it's clear that SEIU is a smarter and more aggressive organization at this time than the UFCW is.

- I agree with this overall but I'd add a qualifier:

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Acting without any institutional restraint, workers could issue unreasonable demands, spread strikes, and potentially challenge the very notion of private property through their actions (whether they realised it or not, it's worth adding).

"Acting without institutional restraint" isn't exactly wholly accurate. Acting with different sets of institutional restraints: from the employers and government, violent repression; from the trade unions, a more militant and more politically independent (if also more racist and misogynistic) version of the same opportunistic use of labor conflict to secure their careers. What it amounts to is that the capitalists were more violently repressive, so the unions were more militant in response out of necessity... and as the capitalist grew more willing to collaborate, so did the unions. The old carrot and stick in other words. At the same time the unions mostly all-but-abandoned (with few and far exceptions) the goal of "organizing the unorganized" while from the '70s on the capitalist went on the attack mode, and it's this context which broadly informs the Change to Win split and the current gear shift within the big unions toward a more aggressive strategy.

Without any more information than you have, I think you are spot on about the political element and the relationship to EFCA, and for what its worth I've some other very smart comrades in the IWW make the same leap for the same reasons. The unions want from EFCA what the employers got from Taft-Hartley: a strengthening of their end of the labor law "trade off."

syndicalistcat
Dec 6 2012 23:11
Quote:
It's not surprising to hear the reports from the Black Friday strikes that UFCW were very keen to keep pickets orderly and ensure that entrances remained unobstructed. Union officials let the police know in advance when and where protests would be and what sort of activity they'd be permitting on the picket lines.

This seems to sort of assume that the role of unions is always to hold back a working class ready to launch militant actions at any moment. That is a really inaccurate picture of the present social reality in the USA. How do you know the workers at Walmart didn't want this restraint? I suspect they did.

If unions were always repressive of worker action in this way, it would make it easier to build independent organization.

Also, it's historically inaccurate to present the NLRA as the vehicle for no-strike contracts in the '30s. Most CIO contracts in the '30s didn't have "no strike" clauses. That was imposed on the labor movement by FDR during World War 2. He gave the union bureaucrats a universal union shop clause (required payment of dues) in exchange. This is discussed in Nelson Lichtenstein's "Labor's War at Home."

I tend to agree with Kevin's comments about the SEIU & the Fast Food Forward drive, so I won't repeat them here.

Chilli Sauce
Dec 7 2012 00:19

Good post Kevin. I had a lot of those same sort of thoughts in mind when I wrote the piece. Stuff like this in particular:

Kevin wrote:
folks I think also are quick to see a mainstream-union-ized version of "radical" stuff sometimes even where there's isn't anything remotely radical worth noting, as in the OUR Walmart organization which some folks are quick to compare with SWU and JJWU as a "minority union"

Syndicalistcat, you're right about the no-strike clauses coming a bit later. I was actually thinking about clarifying that but, really, I think it's part of the same process and the same institutional framework. I know Glaberman draws the same connections in his history of the early UAW, so that's sort of what I had in mind.

SynCat wrote:
This seems to sort of assume that the role of unions is always to hold back a working class ready to launch militant actions at any moment.

When did I say this?

SynCat wrote:
How do you know the workers at Walmart didn't want this restraint? I suspect they did.

They very well may have, but that's not really my point. I'm arguing that if actions go through the trade unions, that restraint is inevitable because it's structural.

I've been in a number of trade unions and when actions come up, the unions pitch the restrictions in such a way ("not pushing things too far", following procedures, following the law, not getting the union sued, "avoiding disciplinaries", etc, etc) that workers inexperienced in strike action are almost guaranteed to see it their way.

The decisions the union pushes may be the exact same decisions the workers themselves may have made. But it creates an unhealthy dynamic whereby it's not our level of wilingness and militancy that determines the course of the struggle, but the advice and supposed expertice of an officialdom who don't share the same interests as the workers on the ground.

In my own organising (both in my workplace and in supporting other worker organising independently of the TUs) there's been lots of times workers have wanted restraint. And, that's fine, you meet workers where they're at. But it's our job as radicals to try and push those limits and, in the context of the trade unions, we're going to come up against inevitable, structural barriers.

syndicalistcat
Dec 7 2012 06:29
Quote:
And, that's fine, you meet workers where they're at. But it's our job as radicals to try and push those limits and, in the context of the trade unions, we're going to come up against inevitable, structural barriers.

I agree on both points. Often there really is no resistance going on. And when it starts there can be frustrating persistence of all kinds of illusions. A reason I wanted to point this out is that restraining workers is not the only role of the unions. At times they are, can be, actual instruments of struggle. The problem is, as you point out, the structural, institutional tendency to restrict tactics & demands, and concentrate control into the hands of the bureaucracy for that reason. So the unions are actually contradictory. Or to put this another way, what unionism means in practice runs along a spectrum from self-organized type of unionism we advocate for all the way to the worst sort of top-down corporatist entity. And there are various forms of unionism that fall in between along this spectrum. Such as comparing Warehouse Workers for Justice-UE to SEIU.

because the unions are at times an instrument of struggle, this leads to illusions about the unions.

Chilli Sauce
Dec 7 2012 11:41

Yeah, I guess there's a spectrum, but it's still a spectrum that's fundamentally limited if it involves mediation.

The way I see it is that if we can organise victories within that spectrum, our goals as radicals should be to organise them outside of them. Of course whe should support workers in any struggle, but part of that support should be pieces (I'd like to hope) like this which engage trade union militants in practical ways. (I'll leave that to other whether I've achieved that goal).

I don't want to make this pedantic, but...

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what unionism means in practice runs along a spectrum from self-organized type of unionism we advocate for all the way to the worst sort of top-down corporatist entity.

there's a reason I use the term trade unionism because that's the type of legalistic, representative, mediative unionism which encompasses all registered, recognised unions from UE to UFCW.

Obviously we're not talking about anarcho-syndicalist revolutionary industrial unions, here.

syndicalistcat
Dec 11 2012 03:18

as the IWW says, a union is an organization workers create to bring the force of numbers to bear, to force employers to not do things they don't want them to do, and to do things they want them to do. the UE also satisfies this definition. I don't think trying to use "trade union" rather than "union" adds anything. Presumably the IWW is interested in labor law, how to use it, get around it, from the worker's point of view, and may sometimes have recourse to a lawyer. Does that make it "legalistic"? All unions will have some element of representation. Even the IWW in its heyday sometimes had negotiating or strike committees, and presented employers with demands, had job delegates and some paid organizers, such as Bill Haywood. Is that "representation"? I don't know. I wouldn't use this type of language if I wanted to describe what is wrong with organizations like the SEIU or UFCW because I'd want a a harsher, grittier critique. It's really about control over the union & over the struggles. A paid hierarchy or the members. Maybe that's what you mean by "mediative" or "representative". I just find that language very vague. I would say the IWW is at one end of that spectrum, as are libertarian unions in Spain like CGT & CNT, not outside it. they're within the spectrum because they are a form of unionism, according to the IWW definition i cited at the outset.

Chilli Sauce
Dec 11 2012 09:34

I guess, but to be honest, but that still sounds very wishy-washy to me.

FWIW, since moving to Europe I've found myself using trade union as shorthand the way I used to use "business" union.

On mediation, it's the "three Rs": representation, recognition, and (state) registration. Contracts, labor legislation restraint, de facto class collaboration, and the like follow from these positions. Any union that does that, in my opinion, can't qualify as revolutionary. (Again, this doesn't mean we can support workers in those unions or that some trade unions aren't worse than others.)

All this relates to a larger point here: The issue isn't neccesarily how an labour organisation presents itself or whether it claims to have certain principles, it's actions which matter. To put an organisation in a the position of mediating struggle places structural restraints on it to act in certain ways and not act in other ways.

Also, I don't fetishize the old IWW--some of it was amazing, some of it wasn't. It should be critiqued (as should, say, the CNT in '36). Things like paid organisers are problematic no matter when an where they occurred. On the other hand, there's nothing wrong with strike or negotiating committees as long as they're delegatory and not representative.

syndicalistcat
Dec 13 2012 03:52
Quote:
On mediation, it's the "three Rs": representation, recognition, and (state) registration. Contracts, labor legislation restraint, de facto class collaboration, and the like follow from these positions. Any union that does that, in my opinion, can't qualify as revolutionary.

I find this unrealistic. I think it's unlikely that any significant mass organization of workers is going to exist in the USA in the near future that satisfies your apriori definition. Workers are likely to want to achieve some kind of agreement with an employer through their struggles, even if just a Memorandum of Understanding, which lists the things each side agrees to. Signing such a MOU would be regarded legally as a form of recognition. The federal government would want an organization like this to file Landrum-Griffin reports, in all probability. This is the equivalent in the USA to "registration". We don't really have any form of registration but the government does regulate any and all labor organizations. The IWW has to file these reports.

There are legal rules that apply even to have any right to engage in concerted activity, the sorts of rights legally guaranteed by Section 7 of NLRA. These are rock bottom worker rights. But if another labor organization signs an agreement with the employer, then your group loses its Section 7 rights. You effectively have no right to exist, except as allowed under the constitution of the union that gains the monopoly of bargaining rights & under its contract with the employer. Of course there have been labor organizations that have at times built a dual organization despite this, such as the League of Revolutionary Workers in Detroit in the '60s. But it's hard to build an actual organization that can continue if you have no legal right to exist. This is a reason that most oppositional groupings in unions in the USA have tended to become electoral caucuses, to try to attain office in those unions. I favor trying to not do that, and trying to be an independent organization, but I don't know of any such organization right now. It's not an easy road to follow in the USA.

And if there is no other labor organization that you have to contend with, then, as I was saying, workers are going to probably want to come to some agreement with the employer, to gain the things they're fighting for.

And, as I said before, I think "representation" is hopelessly vague. If you were to say that there is a concentration of decision-making power in some group apart from the members, a hierarchy officers & staff, especially a paid hierarchy, then we'd be in agreement, I suppose.

Chilli Sauce
Dec 13 2012 08:32

It's about a strategy tho, isn't it?

I wish the .pdf of Fighting for Ourselves was already available publicly so I could just copy and paste, but it's basically just about avoiding getting sucked into the numbers game (which is part and parcel of trying to fill a representative function of unionism, I should add).

Instead, the goal is to have a dedicated group of militants (ideally revolutionaries) in each workplace who strategise on picking fights with the boss and then try to collectivise the struggle and the running of it as widely as possible. So while we want mass meetings which include all the workforce (bar scabs, mgmt stools, etc) we also use that space to also argue for our preferred methods of struggle. Now, the mass meeting could decide against us (opting for a representative solution, for example) but we still maintain our organisational integrity even in that case.

This is a means to allow us, as revolutionaries, to engage with, instigate, and support wider working class struggles, but still maintain our principles (none of the three Rs) as an organisation.

I think this might relate to the fact that we're not neccesarily concerned with leading struggles under our banners (not that we're opposed), but that the goal is to see anarcho-syndicalist methods spread as widely as possible throughout the class--to the point that self-organisation and collective action become the default response to problems at work.

huli
Dec 13 2012 16:01
Quote:
There are legal rules that apply even to have any right to engage in concerted activity, the sorts of rights legally guaranteed by Section 7 of NLRA. These are rock bottom worker rights. But if another labor organization signs an agreement with the employer, then your group loses its Section 7 rights. You effectively have no right to exist, except as allowed under the constitution of the union that gains the monopoly of bargaining rights & under its contract with the employer.

Is this true? In my workplace, we formed an independent union that didn't turn out to be what we had hoped, as it was captured by the most reformist, pro-contract, and conflict-averse elements in our workplace. A minority of us began to turn to the use of protected concerted activity outside of the approval of the "leadership." This is the first time I have heard that we do not have Section 7 rights in this scenario.

I hope Syndicalistcat will elaborate.

syndicalistcat
Dec 13 2012 19:55

huli, does this union have a contract with the employer? a union can legally sign away your Section 7 rights. so if for example the contract says beefs have to go thru a particular procedure, then I think your group would not be legally protected if it had recourse to direct action & didn't follow the procedure in the contract. This doesn't mean you shouldn't organize independently. We shouldn't allow ourselves to be limited to what the law allows, if there are things we think we have the right to do, and we have the numbers & situation that enables us to get away with it. That's pushing the envelope, or pushing back against the bars of the cage.

chili, even if a group is a minority of activists, it will find itself under pressure to become a pressure group in the union that has the legal representation role. for example, there is a job branch of IWW at the phone company in the Twin Cities. I think maybe 8 members, something like that. They've elected one of their key people as chief steward within the CWA, which is the union that has the contract & monopoly of bargaining rights. I'm not sure but I think this group may do a better job of being not sucked into being just an electoral caucus than usual...probably because they are an IWW branch. They can look to build their own job branch and maybe if they're big enough, have enough influence, can spur or be a catalyst to activity independent of the control of the union hierarchy at some point down the road. but they are active in CWA, do contest the leadership at meetings, etc.

Chilli Sauce
Dec 13 2012 20:40

Syndicalist, I don't feel like you've engaged with my larger point and are sort of moving the goalposts each time you respond.

So, while of course you're right that they'll be pressures, that's my exact point about representation and mediation and why we shouldn't ever have a strategy to put our organisations in those positions.

And of course we should contest the union leadership, but so what? We should contest the government, but that doesn't mean we should form or become active in a political party.

Contesting union officials should only be secondary to the organising we do on the ground and here, again, is where I think you're misunderstanding the strategy I'm promoting. Membership is secondary. The goal is to build contacts amongst the workforce, build up confidence (both in ourselves as militants and organisers and amongst the workforce as a whole), and then getting as many people taking action as possible. Deeper political conversations (and membership in radical organisations) will develop from there.

Again, we're not concerned with organising struggles under our banner, but in spreading struggle as widely as possible and building our dedicated and politicized core off the back of each escalating struggle.

Your argument also doesn't take into account the fact that the vast majority of American workplaces are non-union and that the overwhelming majority of American workers under 35 have no union experience. I actually think that gives us a lot more space to push for our understanding of how unions operate, especially because we often agree with some (but not all, of course) or the negative feelings that workers express about unions--they just want your dues, don't do anything, aren't democratic, in bed with mgmt, etc.

Chilli Sauce
Dec 13 2012 20:38
huli wrote:

Is this true? In my workplace, we formed an independent union that didn't turn out to be what we had hoped, as it was captured by the most reformist, pro-contract, and conflict-averse elements in our workplace. A minority of us began to turn to the use of protected concerted activity outside of the approval of the "leadership." This is the first time I have heard that we do not have Section 7 rights in this scenario.

S-cat is right, section 7 are a groups of "rights" which unions can sign away--and regularly do in terms of the right to strike during the life of a contract.

This is something that came up when writing Direct Unionism, the idea that an organised group of workers has more rights without a union contract.

syndicalist
Dec 13 2012 21:00
Chilli Sauce wrote:
Syndicalist, I don't feel like you've engaged with my larger point and are sort of moving the goalposts each time you respond.
.

Um, I think you mean Syndicalistcat...who should really change his name.

syndicalistcat
Dec 13 2012 22:23

yeah, syndicalist is a friend but a different person. I have forgotten the other name i used here in the past.

chili, I'm trying to point out that your strategy doesn't make a lot of sense to me. USA is not Spain. the idea of having assemblies independent of unions is unknown here, for the most part. only exception I know of is in the case of the port truckers, who have ad hoc assemblies they call "colectivos" and then elect a delegate as spokesperson, sometimes. that's in a situation where they have no legal union rights at all, since they are independent contractors. if i were in that situation, then i might try to develop a kind of militant minority organization, to invoke colectivos & maybe influence them, encourage militant action & solidarity.

in regard to unorganized workplaces, where people do have nominal legal union or concerted action rights, if this is to be approached in a strategic way, it would be good to think about the industry as a whole in that area, and how to build worker groups or organizing committees in the various workplaces. I think in fact in that situation workers will want to seek concessions on their issues, and to do that will have to think in terms of the power of numbers, and how to organize that. ultimately it's necessary to think of what it takes to win a strike which requires majority support. and this is going to mean organizing people into an ongoing union of some sort. they will prefer to gain an agreement with the employer if possible. and to do that there would need to be a negotiating committee or delegates.

Maybe I can clarify this by noting the origin of the word "representation." This word is used in relation to parliamentary or "democratic" government where we elect "representatives." The first country in the world to develop this concept was England, in the period of the late 1300s-early 1400s, when the parliament was created. This is why the first electoral law in England was passed in 1429. They had to have an electoral law in order to start having elections among a broader group of people, not just the king's pets & insiders & the various barons. According to one book on this, they were very explicit that "representatives" were NOT mere delegates. This is because of the idea that representatives have the "full power" of decision making, the rights of decision are completely transferred to the reps, they are not required to gain consent or agreement of the base.

so if *this* is what you mean by "representative", then it is contrasted with delegates, where delegates must at all times be under control of their base, be removable by the base, and their decisions have to be brought back for discussion, report & approval by the base, and so we can consider this in particular in regard to any process of negotiation or grievance settling with employers. So in the case of a union, this would mean things such as: members have the discussions about what their demands or issues are, what is going to be proposed to the employer, what the struggle is about. Any negotiating committee or elected person is expected to present this in the negotiations, and to report about the negotiations at some point to the members, especially presentation & discussion of any resolution, and it is understood the members themselves decide whether to accept.

Now, I think there are some unions in the USA that at least come somewhat close to this at times in practice, maybe UE. syndicalist can comment on this as he used to be with UE.

business unions become *more* "representative" and less "delegative" to the extent they approximate fully to the concept of full powers of decision being removed from the base, and the base having no right to approve. In practice i think this degree of degeneration to "representation" varies. Also, note that this is NOT necessarily what it means in the USA to say that a certain group of workers are "represented" by such-and-such union. In theory the union could be more delegative in how it works.

and then there is also the danger that if the militant minority type of organizing takes off in a particular industry, one of the business unions may try to move in on it. Fast Food Forward by SEIU is an example of this. After the IWW Jimmy Johns campaign, SEIU announced they would try to organize fast food workers, and apparently that's what they have done. and thus we can't really avoid having a strategy for dealing with the situations where the business unions are present in workplaces. Altho it is true that in the country as a whole only 6 percent private sector workers are in unions, there are vast stretches of the country where this is virtually zero, and so unions tend to be concentrated in certain regions, where the percentage is more like 15 percent, as in California. Moreover, the industries where the business unions are entrenched tend to be important strategically, such as transportation, utilities, public services. so we can't really afford to ignore them. in those industries union density is much higher than average.

huli
Dec 14 2012 03:24

Thanks for elaborating.

Of course, questions of legality should not be primary in organizing strategy, but I am still curious about Syndicalistcat's point.

I understand that if our union has signed a contract with a No-Strike Clause (it has not - yet), any wildcat strike activity is unprotected. If the boss retaliated against strikers it would not be a ULP, though it would be possible to fight the retaliation through direct action.

However, what if we had a contract with a no-strike clause. What about concerted activity short of a strike? Let's take something mild, like a march on the boss. A group of us decide to protest an action by the boss that our union has decided not to fight. We make it clear that we are not acting as the recognized union, but as a group of workers taking protected concerted activity. The contract may have a no-strike clause that also prohibits slow-downs, etc., but says nothing about petitions, marches on the boss, etc. But the boss retaliates against us for our concerted activity. Isn't this a ULP regardless of our union status?

syndicalist
Dec 14 2012 03:40

Here's a cross link for here and the Walmart thread. Here's what the OurWalmart folks say about ULP's and protected activities:
http://forrespect.org/stand-for-change/strike-tool-kit/section-one-legally-protected-unfair-labor-practice-strike-basics-2/

Chilli Sauce
Dec 14 2012 10:39

Sorry about that syndicalist, but thanks for the link.

S-Cat, again, I don't think you're understanding me: I'm not arguing for independent unions. I'm arguing for a revolutionary union made up of revolutionaries in each workplace who agitate for action and then try to spread action as widely as possible within the workplace and across workplaces.

In an ideal world, this would include mass assemblies. But given the reality of class struggle, I'm talking more about an active committee in the workplace who--based on their own size and an honest assessment of how many more workers they can pull in--push for winnable direct actions and grow in numbers off the back of them.

I don't actually think this is too different from what happens in organised unionised shops, the difference being that we're independent of any recognised trade union (and thus will always resist any attempt to allow someone or some other organisation to mediate any conflict with the boss).

Similarly, we wouldn't water down our politics to encourage "mass" membership. Sure we want a mass membership, but we want that membership to share our politics. At the same time, however, just because co-workers don't share our politics, it doesn't mean we won't try to organise alongside them.

Also, dude, don't lecture me about word origins of the difference between delegates and representatives. It's patronising. Do you really think I'm having an in-depth discussion of revolutionary anarchist politics and I haven't thought about the difference between delegates and representatives? That's pretty fucking patronising.

On the topic, however, when unions are put into a position of mediating the struggle between a boss and the workforce, it has to be able to represent the workforce. What the union says—as the recognised representative of the workforce—has to be binding or (a) the union could get the pants sued off them or (b) the employer will have no continued incentive to negotiate with the union.

While there could be some degree of democratic oversight or some delegatory functions, once you start dealing with recognition agreements and collective bargaining contracts, the necessity to service those contracts and the specialised knowledge entailed, again, makes a true delegatory union impossible. And that's not even taking into account that labor law is specifically set up to ensure centralisation in how legal, registered unions function.

In regards to UE, yeah, they're probably the best of US trade unions, but even they have full-time organisers and officials who, by the logic of the fact they aren't based on the shopfloor, inhibits it from being a fully delegatory union.

S-Cat wrote:
I think in fact in that situation workers will want to seek concessions on their issues, and to do that will have to think in terms of the power of numbers, and how to organize that. ultimately it's necessary to think of what it takes to win a strike which requires majority support. and this is going to mean organizing people into an ongoing union of some sort. they will prefer to gain an agreement with the employer if possible. and to do that there would need to be a negotiating committee or delegates.

I'll finish on this, I don't think you've provided much evidence for the argument you're making. You've made assertions, talked about the old IWW, told me how the US isn't Spain, lectured me on semantics, and keep going to back to the fact that some trade unions are less shit and more democratic than others. I don't think any of that proves anything.

I'm arguing for a different type of unionism: one that's explicitly political and doesn't try to speak on behalf of the larger workforce. Instead the revolutionary union focuses on building up the confidence and combativeness of the larger workforce to take on fights with the boss and force the boss to deal with the workforce as whole, without any other representative organisation involved. (And, again, don't patronise me, I know we could use delegates to accomplish this.)

I'm not sure you're right that most workers have an understanding of unions that that means they will “prefer to gain an agreement”. Even if that's true, however, it seem to suggest you don't have much faith in your organising ability or your organising strategy. What I'm arguing is that the process of those escalating direct actions will influence how participants understand struggle and understand unionism.

If revolutionary unionists can gain the respect of the workforce based on our militancy and effectiveness, that gives us the space to argue for our understanding of unionism. It's a slow, deliberate process and, in the end, our co-workers may still opt representative solution with some sort of recognised union in the workplace. Fine, we argue against it and even if it goes through, it doesn't really change our strategy. We keep doing the same thing, only this time we push for our co-workers to take the struggle beyond the bounds of any mediative, representative trade union which may be present in the workplace.

Chilli Sauce
Dec 14 2012 09:12
huli wrote:
Let's take something mild, like a march on the boss. A group of us decide to protest an action by the boss that our union has decided not to fight. We make it clear that we are not acting as the recognized union, but as a group of workers taking protected concerted activity. The contract may have a no-strike clause that also prohibits slow-downs, etc., but says nothing about petitions, marches on the boss, etc. But the boss retaliates against us for our concerted activity. Isn't this a ULP regardless of our union status?

That's actually a really interesting question. There could be something like a binding arbitration clause in the contract where grievances will have to go through the proper procedures. If you start taking collective action on the floor, the union could be brought into to ensure you take out a grievance. It's also my understanding (someone please correct me if I'm wrong) that judges have read binding arbitration clauses into contracts that don't have explicitly have them.

Have you read Glaberman's Punching Out? He talks a lot about this, how in the early day of the UAW, the union was the first recourse of the boss anytime workers tried to settle grievances on the shopfloor.

None of this means, I should add, that you shouldn't organise marches on the boss only that labor law is really fucking nasty and, if you're going to pay heed to section 7, a union contract is really constricting.

syndicalistcat
Dec 15 2012 00:16
Quote:
Also, dude, don't lecture me about word origins of the difference between delegates and representatives. It's patronising. Do you really think I'm having an in-depth discussion of revolutionary anarchist politics and I haven't thought about the difference between delegates and representatives? That's pretty fucking patronising.

dude, do you think you're the only person here? who is reading this? I'm trying to obtain clarity about your idea of "representative" which i find completely opaque.

I could with equal justice accuse you of being "patronizing" for this comment:

Quote:
I don't think you're understanding me: I'm not arguing for independent unions. I'm arguing for a revolutionary union made up of revolutionaries in each workplace who agitate for action and then try to spread action as widely as possible within the workplace and across workplaces.

In an ideal world, this would include mass assemblies. But given the reality of class struggle, I'm talking more about an active committee in the workplace who--based on their own size and an honest assessment of how many more workers they can pull in--push for winnable direct actions and grow in numbers off the back of them.

I've read thru "Fighting for Ourselves." I know what the SolFed line is. But I wouldn't accuse yu of being "patronizing" because it's fine if you want to lay out what you are thinking.

You say I have no convincing arguments but you offer none yourself. My comments have been partly clarifying questions, partly challenges to the SolFed line. Challenges in which i suggested that your approach has little purchase on reality here in the USA.

Instead of responding with arguments, you have to resort to personalizing the discussion, which is always a dead end.

Chilli Sauce
Dec 15 2012 21:58

S-cat, that was actually a pretty sad post.

I don't think you've engaged with any of my argument, instead you've taken a four line paragraph from a 700 word post and claimed that I've "personalised" the argument to the point where you're no longer even going to respond. roll eyes

And given that the strategy I've presented in no way takes into account things like labor law or even the general level of class struggle (instead focusing on organising based on the level of confidence and combativeness of your immediate workmates), I don't get how you could say it doesn't somehow fit an American context. My argument is a set of principles and basic organising strategies that focuses on how to build independent libertarian workplace organisation--those aren't exact national concepts.

In any case, the section of Fighting for Ourselves I'm thinking of is here and this is the excerpt in particular:

Quote:
The anarcho-syndicalist approach is to pick fights we can win, and use these victories to attract more workers into our orbit and to demonstrate the validity of our anti-capitalist and anti-state approach. It is true that most workers don’t share our perspective at the present time. But this is not a fixed fact, but dependent on numerous variables, some of which we can control and others which we cannot. In practice, we have found that at least some of our fellow workers are open to our revolutionary ideas and methods, whereas reformism is most often pushed by politicos convinced that 'ideology' puts off 'the workers' (remember the Treintistas). And we should add, the distance between disillusionment in your job and party politics, attitudes which are widespread, and a revolutionary perspective is not as great as many specialists in ‘revolutionary theory’ like to insist. Many of us have traversed it, and there’s nothing special about us. Being against capitalism and the state in the abstract doesn’t make much sense. But when it’s expressed through direct action, asserting our independence from those we struggle against, it’s almost common sense. Through the process of struggle, we are confident our perspective will come to appear more and more self-evident, even as it evolves through these experiences.

Anyway, I'd be curious to hear a larger critique of FFO from yourself, maybe you can prove how basic principles of self-organisation are trumped by national boundaries roll eyes

Chilli Sauce
Dec 16 2012 08:48
syndicalistcat wrote:

Instead of responding with arguments, you have to resort to personalizing the discussion, which is always a dead end.

Oh yeah, I wanted to post this. Prior to my articles about the Wal-Mart strikes and the NLRB you and I haven't really had any correspondence (although I do remember a bit on your Closed Shop article maybe last year--generally a very good article I should add). Anyway, this is the first line from your first post on the Wal-Mart blog:

Quote:
Frankly I think the above analysis has hints of paternalism. What I think is desireable is to look at it from the Walmart worker's point of view, which you don't do.

So who's personalising?

Chilli Sauce
Dec 16 2012 14:47
huli wrote:

However, what if we had a contract with a no-strike clause. What about concerted activity short of a strike? Let's take something mild, like a march on the boss. A group of us decide to protest an action by the boss that our union has decided not to fight. We make it clear that we are not acting as the recognized union, but as a group of workers taking protected concerted activity. The contract may have a no-strike clause that also prohibits slow-downs, etc., but says nothing about petitions, marches on the boss, etc. But the boss retaliates against us for our concerted activity. Isn't this a ULP regardless of our union status?

Huli, I thought this might be of interest:

http://www.employmentpolicy.org/topic/578/blog/employee-rights-when-collective-bargaining-agreement-has-expired-shop-stewards-cross-

from the October 2012 LEL Labor and Employment Law News

A recent NLRB case from Puerto Rico analyzes employee rights during a period when their collective bargaining agreement has expired and no successor contract is yet in place. It also explores the degree to which shop stewards’ NLRA rights differ, if at all, from the rights of other employees. CC-1 Limited Partnership d/b/a Coca Cola Puerto Rico Bottlers, 358 NLRB No.129 (Sept. 18, 2012).

Shop stewards are employees and are protected by the National Labor Relations Act. That means that their concerted – that is, collective – activities taken for mutual aid or protection are also protected. In this case, after the parties’ collective bargaining agreement expired, four of the five shop stewards encouraged other employees to stop working. The employer then fired the four stewards.

Most terms of a collective-bargaining agreement remain in force after the CBA expires. But, as the decision says, the “Board has long held, with Supreme Court approval, that a no-strike clause typically does not survive the expiration of a collective-bargaining agreement.” In addition, although the contract waived the rights of “shop stewards to engage in otherwise protected work stoppages”, the Board found no evidence “that the parties intended the waiver to outlive the contract”. As a result, the employer could not discipline “the stewards for encouraging employees to engage in a protected work stoppage.”

The Board explained, “Any other conclusion would allow rank-and-file employees to encourage or engage in a protected work stoppage, but would permit an employer to terminate a shop steward for the same action. Although the Board has found that an employer may impose harsher discipline on union officials for instigating or actively leading employees in illegal (and thus unprotected) strikes during the term of a collective-bargaining agreement, an employer may not rely on the employees’ shop-steward status to impose harsher discipline for protected activity. . . . As a result, the stewards did not violate the terms of the CBA, and the employer violated the NLRA by firing the stewards.” In addition, the Board said that it is “well established that an employer cannot enforce a rule that disciplines an employee for protected conduct. . . . Here, the stewards were engaged in protected concerted activity when they encouraged employees to join the strike”.

The case also discusses the status of a strike that has not been authorized by the union. The Supreme Court has found strike activity that undermines the union representative is unprotected because it undermines the principle of exclusive representation under NLRA Sec. 9(a). “The “Board has determined that, in assessing whether employees who act independently from their bargaining representative lose the protection of the Act, two factors are controlling: (1) whether the employees are attempting to bargain directly with the employer and (2) whether the employees’ position is inconsistent with the union's position.” In this case, there was no evidence that the union saw the employees’ actions as undermining the union. The union had requested strike funds from the International, and it had filed a grievance over the employer’s suspension of the stewards. In addition, when the union was told that the employees had voted to strike, the union did not oppose the strike, even though the union did tell the employer the strike had not been authorized.

huli
Dec 16 2012 16:13

Very interesting - thanks. I am particularly interested in the final paragraph. I am going to read the decision itself and think about this.

In our case, there are a couple of things happening: there is a small group of us (who are considered part of the bargaining unit) figuring out how to fight the boss effectively and independently of our union, since we can't rely on our union to act as a vehicle for that fight; and there is a large group of co-workers that the boss has refused to recognize as part of the bargaining unit.

At first I thought it made sense to fight to have this group of co-workers "recognized," and now I am not so sure that's a good idea, since the union is so shitty. I think there may be more potential to win fights over conditions if this group of co-workers avoids the pitfalls of recognition and contractualism and engages in concerted activity and direct action.

This group of "unrecognized" co-workers still maintains intact its Section 7 rights, since it has not compromised them through bargaining any limits to them, and it also is still able to operate free of Section 9(a). Their situation is somewhat less complicated by the NLRA than that of the group of us who are in the bargaining unit.

Chilli Sauce
Dec 16 2012 21:33

Huli, I think you should do a write-up (anonymise as needed, of course) on your experience organising on the job. I, for one, would really like to hear about it. Start yourself a libcom blog.

On section 7/Section 9, I'd start with reading this:

http://libcom.org/library/solidarity-unionism-starbucks-iww-uses-section-7

I don't actually think it's a great strategy in as much as if we get good at only uses section 7, what's to stop the State from changing it? But if you're going down that road, these folks have given a lot of thought to how best to do that.

huli
Dec 17 2012 00:16

I guess I shouldn't be surprised when I find out that any labor question I am obsessed with has usually been pondered by Staughton Lynde decades ago, but I started reading this today:

http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3098&context=ilj

I had read a little about Emporium Capwell before but suddenly it is so relevant to my daily life!

As to writing up an account, two of my co-workers and I are already planning to do that once some of the dust settles...

Thanks for the encouragement!

syndicalistcat
Dec 17 2012 23:43
Quote:
Anyway, I'd be curious to hear a larger critique of FFO from yourself, maybe you can prove how basic principles of self-organisation are trumped by national boundaries

you'd rather impute to me what I don't say than actually engage with what I do say.

I've already raised various points above that call into question the strategy laid out in FFO.

1. I've pointed to the difficulty of developing & maintaining an independent organization that ignores internal union politics in situations with a recognized business union and its contract in force. I'm not here offering a definitive conclusion about it, but pointing out an actual problem. The Staughton Lynd essay is relevant because he notes how the courts have shifted in a more authoritarian direction over time, as indicated in the Emporium Capwell case. But it's not just about the legalities of it. It's just that the actual reality has been that independent committees do tend to be sucked into internal union politics. And I pointed to the IWW group at the phone company in Twin Cities as an example. In this case an ostensibly revolutionary organization, and the person elected as chief steward is a revolutionary anarchist.

This is a problem for me, too, since I would also advocate for an independent committee of militants in such a situation. But it's a problem & I can't' say I have an answer for it.

2. In the case of workplaces where there is no business union, I think the workers will want to win. And to do that they'll need to develop majority force, because they can't shut down the workplace, conduct a strike, realistically without a very substantial part of the workforce supporting it. I wouldn't make a fetish of the numerical 50 percent plus 1. In the '30s strikes were often carried out by unions with a significant minority (like the famous sitdown strike at GM Flint in 1937, led by CP salts, remnants of the TUUL Auto Workers union).

There are some people in the IWW who are opposed to ever signing contracts, not even an MOU with no "no strike" clause, I guess. For similar reasons I think this is unrealistic. I think workers are likely to seek employer agreement to settle a particular fight. People don't necessarily like striking or fighting, and tend to want some resolution.

I see a problem with putting forward a vision of a "revolutionary union" that does not aspire to build a mass union, but assiduously tries to keep itself a minority of those who adhere to a particular revolutionary ideology. I think this doesn't really fit the likely reality. I think this comes about from a typically anarchist fear of success, so to speak. Fear of bureaucratization from a mass union. But I don't think that is an inevitability. I think sometimes anarchists fear success to the point of adopting very unrealistic attitudes. The CNT maintained mass unions over a period of many years that continued to be just assemblies & shop steward committees, plus union committees that had no power of decision-making, but were assigned certain tasks (the union junta). and no paid officers (except at the national level for the national industrial federations).

So I think we can't avoid putting forward a conception of a mass union that is self-managed & I think it is possible to have such an organization be committed in principle to a worker-self-managed replacement for capitalism. Even a union like FAT in Mexico is committed to this aim, and to worker self-management of the union.

Problems of the sort I've mentioned here may occur in other countries besides the USA. I can't say. But they are relevant here.