Labor Day this year finds American unions plunging into the unknown. Fast-food and retail workers in roughly 60 cities have been demonstrating for a living wage, though how exactly they will win concessions from such mega-corporations as McDonald's remains fuzzy at best. The AFL-CIO, which will convene its biennial national convention in Los Angeles this month, is considering throwing open its ranks to workers who may not actually be union members. Activity is plentiful; uncertainty is rife.
The reasons for the uncertainty are clear: Traditional union organizing in the private sector no longer works. Employers routinely fire workers who seek to organize their companies, and while this is a violation of the National Labor Relations Act, the financial penalties imposed by the law for such transgressions are minimal. Labor's efforts to strengthen that law during the last four Democratic presidencies have failed. In consequence, the share of private-sector workers in unions, which in the middle of the 20th century exceeded one-third of the workforce, has dwindled to 6.6%. The share of the nation's economy — its gross domestic product — going to wages is at its lowest level since World War II.
If unions can't win gains for workers through collective bargaining, how else might they do so? In cities with liberal governments, the campaigns of the fast-food workers might be able to win municipal living-wage ordinances that raise workers' pay. (Some states — California is one — allow cities to set their own minimum-wage rates.) But is there any way that unions can secure legal changes that actually might revive their ability to organize workers and win raises the old-fashioned way?
Richard D. Kahlenberg, a senior fellow at the Century Foundation, and Moshe Z. Marvit, a labor and employment discrimination attorney, think there is. In their book, "Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice," they argue that workers seeking to organize unions should be covered under Title VII of the Civil Rights Act, which prohibits employers from firing or discriminating against workers for reasons of race, gender, age or disability. Under Title VII, the penalties for employers found guilty of violating their workers' rights are far more substantial than those imposed under the NLRA. Since the Civil Rights Act was passed in 1964, it has been a signal success in protecting workers' rights — as the NLRA has not.
There is, of course, one problem with this proposal: Getting it through Congress might prove just as difficult as reforming the NLRA itself. But that doesn't mean this proposal can't be enacted — because many states have their own versions of Title VII written into their statutory codes. The California Fair Employment and Housing Act, for instance, prohibits discrimination or harassment against the same categories of workers that Title VII protects, and adds a few protected categories of its own, such as workers who report patient abuse in hospitals or nursing homes that receive public tax dollars through programs like Medicaid. As with Title VII, the penalties that can be imposed on employers under the California act are substantial.
Under the NLRA, union organizing is a legally protected activity — it's just not protected very well. Extending the protections of the California Fair Employment and Housing Act to workers seeking to form unions would transform what is now only a legal right into an effective right as well. But it would do more than that.
Americans — liberals especially — are troubled by the rise in economic inequality that has imperiled the nation's middle class, and troubled as well that few solutions for this problem are readily apparent. Globalization may have reduced the incomes of Americans in industries that are open to competition from low-wage nations, but the jobs held by most Americans — in sales, construction, transportation, restaurants — can't be outsourced, which means that wage scales aren't affected by those in China. And yet, pay in those sectors has been declining as well.
By making union organizing a civil right, the California Legislature and Gov. Jerry Brown could begin to end this public-policy paralysis. In a state where millions work for low wages, California's leaders could help revive collective bargaining in a nation from which it's almost disappeared, and begin rebuilding the kind of vibrant economy that was once America's and California's calling card to the world.
Harold Meyerson is editor at large of the American Prospect and an op-ed columnist for the Washington Post.