The False Hope of Union Democracy

Over the course of the twentieth century, labor unions emerged across the globe in reaction to the widespread growth of industrial wage labor. The relative strength of unions saw a secular decline in the late twentieth century that has only continued in the early twenty-first century. Debates among sympathetic activists and scholars over the sources of this decline and how to reverse it have intensified alongside resurgent contemporary concern with economic inequality. This article argues that the recurrent focus of American labor scholars and activists within these debates on increasing internal union democracy as a means of revitalizing unions is fundamentally misguided. The promotion of liberal procedural rights, including broader and more direct elections, as a mechanism of accountability and source of renewed institutional dynamism will * Associate Professor of Law, The University of Hong Kong; J.D. Yale; Ph.D. U.C. Berkeley. Earlier drafts of this paper were greatly improved by participants at Comparative Approaches to Public and Private Regulation: The U.S. and Brazil (Columbia Law School), the 13th Brazilian Congress on International Law (University of Fortaleza), The International Law/International Relations Colloquium (Cornell Law School), the Colloquium on Scholarship in Employment and Labor Law (University of Washington), the Center for Law in the Contemporary Workplace’s Douglas Cunningham Speaker Series (Queen’s University Faculty of Law), and the 2016 ASCL Annual Work-In-Progress Comparative Law Workshop (UCLA Law School). For their specific feedback, I am most indebted to Kevin Banks, Mark Barenberg, Weitseng Chen, Matthew Dimick, Chris Erikson, Eli Friedman, Stan Getz, Charlotte Garden, Ana Virginia Gomes, Katherine Judge, Nicolas Lamp, Brian Langille, Maximo Langer, Odette Lienau, Cesar Rosado Marzán, Curtis Milhaupt, Mariana Pargendler, Aziz Rana, Jacqueline Ross, Kim Lane Schapelle, Chantal Thomas, Laura Weinrib, Frank Upham, and Noah Zatz. Special thanks to the Centre for Asian Legal Studies at the National University of Singapore. All errors and omissions are my own. Published by Penn Law: Legal Scholarship Repository, 2018 616 U. Pa. J. Int’l L. [Vol. 39:3] only further hasten the demise of labor unions in the United States and elsewhere. By contrast, labor unions were historically founded in explicitly corporatist, group-based notions of democratic process. Following corporatist theories of politics which allow the state to legally identify and regulate collective bargaining agents, unions operate to centralize and aggregate labor interests to facilitate their core functions of wage-bargaining and the acquisition of political capital. Thus, unions’ potential for achieving social influence and economic justice for their members is predicated on accumulating power through collective action. Collective action whose potency correlates with the effective strength of unions’ powers of internal discipline in and outside the workplace – powers directly undermined by solely liberal conceptions of the union/worker relationship and are unavoidably sourced in performative loyalty rather than electoral accountability. Following this corporatist logic, over the long-run, efforts to promote greater internal union democracy have failed to improve the performance of unions as wage-bargainers or as political agents. Unions have been key to movements for political democratization, but this effect has been achieved by channeling and disciplining class politics rather than serving as the foundation for the bottomup creation of social movement capital. Following a misconception of the individual workplace as a source of class solidarity, procedural localism focuses labor conflict where workers are most vulnerable to retaliation and least likely to induce broad based solidarity, a mistake only worsened by contemporary workplace authoritarianism. As a result, internal union democracy campaigns over the long run have ultimately resulted in weakened unions later returning to corporatist strategies. Moreover, the emphasis on internal union democracy has left unions susceptible to judicial and political assaults across the globe which exemplify the limits of negative liberal rights to address social power asymmetries, especially in common law countries. This mistaken focus on union democracy is redoubled when the international influence of U.S. labor scholarship inspires calls for union democratization as a salutatory reform elsewhere. To substantiate these claims, this article uses a trilateral comparison between the development of collective bargaining in the United States, Brazil, and China to demonstrate the inevitable pull of unions towards corporatist bargaining, even among nations with quite different regulatory regimes—but all where calls for greater union https://scholarship.law.upenn.edu/jil/vol39/iss3/2 2018] The False Hope of Union Democracy 617 democracy have at points been made. The article reinterprets the history of the decentralized U.S. labor union model, formally infused with liberal procedural norms, as one where the success of U.S. unions followed their ability to replicate corporatist behaviors through union mergers, pattern bargaining, sympathy strikes and other collective tactics, described as “aspirational corporatism.” By contrast, the relative success of the now-threatened Brazilian union model has been predicated on the elision of liberal norms, described as “hyper-corporatism,” even though calls for union democracy were a rallying cry during Brazil’s political democratization. These two examples are then contrasted with the Chinese Communist Party’s experiments with workplace proceduralism within its state labor union as a tactic to weaken the horizontal bonds of the evergrowing Chinese labor movement, while also seeking to designate collective bargaining units to ease labor unrest—described here as “simulated corporatism.” This comparative and historical analysis is not meant to critique the role of unions as instruments for economic fairness, but it is meant to help guide efforts to best realize their capabilities. The corporatist function of unions naturally moves them away from more radical reforms to transform the modern workplace which would alienate other established economic and political actors. In this regard, no structural configuration of internal union procedure can substitute for the presence of a broader labor politics or specific labor party. Thus, efforts to create or foster workplace relations governed by deeper norms of participatory economic democracy should be directed elsewhere. Published by Penn Law: Legal Scholarship Repository, 2018 618 U. Pa. J. Int’l L. [Vol. 39:3]