The Law Will Not Help Unions Rebuild

Changes in the law will not make trade unions grow, no matter how tightly unions leaders close their eyes and believe, believe, believe. It is not obstructive laws that are holding back union membership around the globe. There are few obstructive laws in Europe, and yet union membership continues its relentless downward decline. 

Perhaps, the managerial, social and economic circumstances in which unions first emerged and grew simply no longer exist. Perhaps the union light is dying, and union leaders are simply raging against the dying of that light, to borrow from the Welsh poet, Dylan Thomas. 

In the USA Today

These thoughts were crystallised by a piece in the HR Policy Associations’ weekly newsletter on US union membership.

If you are interested in US labor relations, as we are, you will be more than familiar with the media chatter over the past year that the US union movement has awoken from the dead and discovered new life. Quoted in evidence: The UAW wins at the “Big 3” auto companies; the Hollywood strikes; workers in some Starbuck coffee shops voting to unionise; a union win in Amazon on Long Island. Opinion polls showing growing popular support for unions. A President that supports unions and walked the UAW picket line.

But the figures tell a different story. 

As the author of the HR Policy piece, Greg Hoff, Director of Labor and Employment Law and Policy, notes: 

“Despite highly publicized strike and organizing activity throughout 2023 and the most union-friendly President and NLRB in recent memory, American union membership dipped to a record low (10%).”

• According to newly released data from the Bureau of Labor statistics, the total – public and private sector – union membership rate in the U.S. dipped to 10%, a slight decline from 10.1% in 2022. 
• Private sector union membership remained around 6%. 
• Private sector industries with the highest unionization rates include utilities, transportation and warehousing, and education services. 
• Private sector industries with the lowest unionization rates include finance, professional and technical services, and food services. 

And in Europe?

Union membership figures are always difficult to collect because there is no common methodology for doing so between countries. In some countries, e.g. Italy, unions include retirees among their numbers. In others, such as some of the Nordics, access to certain social benefits, is through union membership. 

So, we are not always comparing apples with apples. From what we do know, the average union density across Europe is probably about 23%.  

Here are some numbers:

• France 8%. 
• Spain 12%. 
• Poland 13%. 
• Germany 16%. 
• UK 23%. 
• Ireland 26%. 
• Italy 32%. 
• Belgium 49%
• Nordics 60+%.

Note that about two-thirds of all union members are employed in the public sector. While no figures are available, probably somewhere between 10 and 15% of workers in the private sector are union members and 3% in France. Many of these workers are in older, long-established industries. 

Since the 1970s, the trajectory of union density has been downwards. Back then, density was about twice what it is today. It is the same everywhere. In Australia, for example, since 1992, the proportion of employees who were trade union members has fallen from 41% to 12.5%.

Union density should not be confused with collective bargaining coverage. In France, coverage is 98% despite union density of only 8%. Collective bargaining coverage is bolstered by in many countries by national and sectoral deals that do not necessarily deliver union members. 

What Explains the Decline?

As we are not academic researchers, these thoughts are not rooted in research based on literature reviews or field work. These are the thoughts of two people who have been involved in industrial relations for close to 100 years, between us. Our observations are based on the personal experience of change since the early 70’s.

Union strength was rooted in mass, mostly, male manual work

Private sector unions were to be found in the mines, steel mills, car factories, engineering works, docks, mass transport, food factories, warehouses and newspapers. Thousands clocked on every morning. Most, but not all, were men. Most, but not all, would have left school at a relatively young age, with few if any educational qualifications. This was just the way life was at the time. Union membership was a rite of passage into work and the union infrastructure was self-sustaining. Decades of offshoring manufacturing and back of house services, the rise of financial services and the service sector and the introduction of new technology have made life much more difficult. 

Union strength was rooted in the notion of a “job for life”

Most of the jobs listed above were “jobs for life”. On your first day at work, you got your union card, and were a member for life. “Turnover” was not something the unions had to contend with. In much of the private sector this is not the case today. In the service sector turnover rates of betweebb25% and 50% are normal. Small wonder that out of 16,000 Starbucks coffee shops in the US, around 300 have sought to unionise. The public sector, or the quasi-public sector, is different where, for the moment at least, “jobs for life” continue to be the norm. 

Unions were part of local communities

Back in the day, most workers lived near where they worked. Neighbours, mostly men, worked in the same factories, walked to work together, drank in the evening in the same pubs, supported the local football team, and went to the same churches. Not many had a mortgage. In Europe, they lived in social housing, often managed by left-of-centre local government. Strikes meant the loss of wages, but not the loss of your house. Contrast this with how many workers can afford to go on strike today? And without strikes, what leverage do unions have? Today’s leverage rests with young, highly skilled and essential workers and is at an individual level.

Unions were all that protected workers. The law was non-existent

The boss was all powerful. You could be sacked on a whim. Union solidarity was all that stood between you and the door. The ability to shout “out, brothers, out” was what protected you. Employment law was virtually non-existent. Laws often aimed to regulate union power. Unions were seen as an evil, and damaging strikes, the manifestation of that. There were few sympathetic judges. Compare that to today. There is a complete ecosystem of labour and employment laws that protect workers throughout their working life. And that body of law continues to grow. Got a problem? Consult a lawyer, not a union.

Managers were bad at managing

Workers were seen as a cost to be managed and minimised. They were just another a replaceable commodity.  In such circumstances, discontent was rife, unfairness abounded. Since then, managers have come to understand that that businesses, especially knowledge-based and customer-focused businesses, are highly dependent on engaged employees. Managers have become more adept at identify the causes of discontent and eliminating them before they can fester. Data analytics make this all the easier. With human resources, like medicine, prevention is better than cure.

Unions are not that attractive. 

Today, many unions are simply not that attractive to workers. Too many of them have become the plaything of leftwing activists, pushing ideological agendas that most workers simply do not relate to. Who wants to spend their lives in a meeting discussing the third amendment to the second addendum to the main motion on due diligence on coca plantations in West Africa? And if unions are not captured by activists of the left, they are run by university graduates with a Master’s degree or PhD in employee relations who know better than the workers themselves what the workers should want. For them, the workers themselves are a disappointment, lacking activist zeal. 

Other “voices” are available

Unions once had a near monopoly on “employee voice”, though the odd impromptu riot was not unknown over the years. In Europe, that monopoly has long been broken with the establishment of legally mandated works councils and other forms of employee fora where discussions on workplace change are separated from bargaining over pay. Elsewhere in the world, other than the US, such fora can be voluntarily established and offer an outlet for collective voice without union dues.

Technology has created new forms of voice. Social media aggregates individual voices and gives them a public platform without the need for gatekeeper approval. X/Twitter, LinkedIn, Facebook, Instagram, TikTok, WhatsApp, and the rest, allow employees to say what they want to say, individually and collectively. In Europe, a social media post by a disgruntled employee could be protected by whistleblowing legislation. Social media can damage your reputation in a heartbeat. Social media is distributed power, in the hands of any employee with a smartphone. 

And the agenda has expanded. Left to their own devices, employees tend not to resort to old-fashioned gripes about pay and conditions, but about the sale of facial recognition technology to authoritarian regimes, or defence contracts, or the plight of illegal migrants, leaders behaving badly, and the minefield of sexual politics. 

Of course, some of the non-union mechanisms of employee voice, such as works councils or European Works Councils, or social media platforms, can be subject to “activist capture”, those who seek to push their own agendas, often in the belief that many of their quiescent colleagues endorse such agendas. The efforts of these activists are even further out of step with the workers they claim to represent.

That said, the all-pervasive nature of social media, for all its benefits, is an activist charter. Motivated activists can punch above their weight in companies as “Emocracy” and “Clicktivism” are more associated with clicks and likes than members. Today’s social campaigns can be more effective in the C suite than strikes have every been, unions are rarely involved  … and no-one loses pay.

Back to the Beginning

Unions were of their time and place. That time and place is gone. It is not coming back. Laws will not change this reality. You cannot pass laws to make workers join unions if they do not want to. Well… you can, but you will be voted out at the next election. You can pass laws to force employers to meet with unions who have recruited a handful of their employees. But no law can force parties to come to an agreement with one another where the power balance is firmly in the company’s favour.  How many years does it take for a union awarded recognition in the US by the NLRB to agree a first contract with a reluctant employer? Unless the union can call an effective strike, probably never. 

The law can never compensate for the lack of members. Unions were built on membership. Without members, they are nothing. And the data shows, they have fewer and fewer members. 

And Yet …

Just because trade unions are losing members almost everywhere doesn’t necessarily mean they are losing power and influence. For now, many governments (around the world) think strong trade unions are important. 

In Europe, unions are essential for the “social model” to operate. The irony is that the less members trade unions have, the more power they are given by the law … whether that is low thresholds for bargaining rights, preferential treatment when it comes to seats on works councils, and easy access to policy makers. 

The same applies in the United States where the Democrats need strong trade unions as a source of Party financing. If we look to developing countries, the inclusion of trade union rights as basic human rights means that the S element of ESG is increasingly important in the C suite, at home. And, as discussed earlier, the “megaphone” of social media amplifies the voice of activists and can give them a disproportionate influence. Empty vessels can make a great deal of noise. 

But there comes a tipping point. Governments, whether national or EU, cannot go on pretending that hollowed-out unions are the authentic voice of “the working class”, however defined. For example, the refusal of the EU Council of Ministers to accept union demands that the Platform Workers Directive favour the near automatic reclassification of gig workers as employees could be such a turning point.

In the End…

For the unions, there is no legal “Seventh Cavalry” coming over the hill anytime soon that will help them rebuild membership because today’s workers rarely need to be rescued and the cavalry is reliant on ancient weapons ill-suited to the battle they face.

DISCLAIMER: The views and opinions expressed in this paper are made by the authors in their personal capacities