Opinion: Labor's Last Stand

Protests continue in Wisconsin, and around the country, over the threats to curtail bargaining rights and cut benefits of public-sector unions. But the wake-up call to labor has come late, and the targets of the protests are much too narrow to reverse labor's flagging course.

Anti-labor Republicans are rightly emboldened to take on the public-sector unions, but their true impetus is hardly the low-turnout midterm elections that swept many of them into office. Instead, the decades-long success of anti-labor forces in crippling private-sector unionism, which now stands at less than 7 percent of the private-sector workforce, is the real inspiration for the attack on labor's remaining fortress in the public sector.

Although the modern caricature of unions is that of strike-happy militants, private workers' right to strike has really been nonexistent since 1938. That's the year the Supreme Court decided that workers are free to strike in support of their economic demands, but employers have the right to permanently replace them.

For years, this precedent lay dormant and relatively harmless, until the economic dislocation of the 1970s and subsequent globalization of the economy created an American work culture of mass layoffs that made striking far more costly to workers. Business-beholden Democrats and conservative Republicans have successfully impeded numerous attempts to modify the court's decision legislatively.

In the years since 1938, the court has favored management over workers' rights at nearly every turn. The court granted employers the right to shut down operations permanently in order to avoid a unionized workforce. Even where the union-averse employer doesn't close permanently, but instead flees to a nonunionized location, employees are without a remedy when the new location is offshore, which has been the destination of choice for the emasculated American manufacturing and textile industries.

At the same time it has sharply curtailed the rights of workers under the National Labor Relations Act, the Supreme Court has hamstrung unions' ability to seek redress through the political process. In 1988, the court limited the purposes for which unions may collect dues from their members, effectively making it more difficult to spend such dues to support pro-union parties and candidates in elections.

In contrast, last year the court concluded that the government could not prevent corporations from using general treasury funds -- that is, the money from consumer sales and stockholders -- to support candidates sympathetic to their policy preferences, which are often at variance with those of labor. The unequal judicial treatment of labor and capital could not be more apparent.

This is the backdrop for the dispute over the bargaining rights of public-sector unions in Wisconsin, Ohio and elsewhere. For anti-union Republicans, the logic is simple: Why stop when you're on a roll?

The greatest growth in unionism since the late 1970s has been in the public sector, where more than a third of employees are organized. A victory by anti-union Republicans in the current battles would hollow the American labor movement, and corporate influence in elections would become almost irrebuttable.

Thus, the most telling element of Wisconsin Gov. Scott Walker's legislation is a proposal that would prevent employers from collecting union dues on behalf of unions and exempt employees represented by unions from paying dues if they so chose. A union with empty pockets simply cannot engage in the political process, let alone effectively negotiate with management.

As labor mounts its last stand, it would be wise to treat this tardy wake-up call as the teachable moment it is. Even if reforms like those in Wisconsin are successfully fought off, it is now clear that the fundamental protections for organized labor in America have eroded beyond repair by temporary victories.

Labor must push for amendments to state constitutions that will protect its bargaining rights against the whims of an isolated election cycle. And the protests must turn from state capitals to Congress and even to the Supreme Court, which is too often insulated from its own ideological tinkering.

Terry Smith is a distinguished research professor at DePaul College of Law in Chicago.