NYU JILP Symposium: Industrial Life without Independent Unions: The US Looks at China, and China Looks Back

[Cynthia Estlund is currently Catherine A. Rein Professor a NYU School of Law]

This post is part of the NYU Journal of International Law and Politics Vol. 46, No. 1 symposium. Other posts in this series can be found in the related posts below.

Jed Kroncke explores a fascinating contrast within US policy toward China and other developing countries: That policy couples vigorous promotion of legally-protected property rights and rule of law reforms with virtual acquiescence in the harsh suppression of independent trade unions and workers’ freedom of association. Kroncke’s thoughtful and provocative juxtaposition of the two arenas of rights and policy produces novel insights into both China and US policy, and reveals puzzles and paradoxes.

To wit: China’s rapid growth in the early years of “reform and opening” took place, as others have noted, without the legally enforceable property rights that most development scholars and policymakers claim are essential to economic development. More recently, China’s leaders have defied conventional wisdom on the role of property rights and “rule of law” in promoting liberalization by reforming property rights and legal institutions while strengthening one-party rule. There is the seeming paradox of China’s strengthening property rights and suppressing workers’ rights under the banner of “socialism.” And at the center of Kroncke’s account is the puzzle of US policy, which continues to stress property rights and “rule of law,” and fails to challenge China’s suppression of independent labor activism, although the latter has a better historical track record of promoting democratic development.

There is a straightforward pragmatic explanation for the last puzzle: Insofar as China sees property rights and “rule of law” reforms – or its version of them – as compatible with or even conducive to continued one-party rule, engagement on these issues is possible. By contrast, China vehemently denounces any outside effort to promote independent unionism as meddling in its internal political affairs. Clearly independent labor activism is seen as a threat to political stability and one-party rule.

But Kroncke contends that the US neglect of workers’ associational rights in China is not just a pragmatic accommodation to political realities there, but also a reflection of the decline of unions, and indeed the neglect of workers’ associational rights, here in the US. He points out that even some labor scholars who strongly support workers’ right to form unions and bargain collectively (like me) have turned toward more cooperative and less combative structures of workplace participation. It is no wonder that the urgency of supporting independent trade unionism in China is overlooked, says Kroncke, when independent trade unions in the US – battered by decades of employer resistance and unaided by an aging, ailing regulatory framework – have lost their central role in industrial relations practice and theory, and are fighting for survival. The Supreme Court has played a role, too, weakening collective labor rights and fortifying individuals’ constitutional “right to refrain” from associating with or contributing to majority-supported unions.

In the US, trade unions are feared and loathed by different actors for different reasons than in China. There is no one-party regime that fears toppling. But there are powerful conservative players that resent, and seek to curb, unions’ political role in a hyper-polarized two-party electoral system; they see unions as agents not of democratization but of Democratization. Some of their white working class constituents agree, and vigorously assert their “right to refrain,” or simply abstain, from supporting unions. And of course US employers fear unions for their threat to cherished managerial prerogatives and flexibility; armed with power over employees’ jobs and a legal “right to resist” unionization, they make union organizing risky, and its rewards elusive, for many workers who might otherwise choose union representation.

The decline of trade unions in the US (and to a lesser degree across the developed world) raises basic questions about the future of regulatory capitalism. In Western industrial societies in the 20th century, trade unions were at the center of the industrial protest that put labor reform at the top of the New Deal agenda. The resulting reforms made unions central regulatory actors in reducing the scope and intensity of industrial conflict, and in resolving the “labor question” that long roiled American society. But nowadays, with private sector union density below 7 percent and strikes at their lowest level in over a century, it is less obvious that robust trade unions are needed to secure “industrial peace.” Unions may still be needed to pursue industrial justice, equality, and democracy; but that has never been enough to secure the full measure of political support needed for major pro-union legislation. In the meantime, the overwhelming majority of US private sector workers lacks any institutionalized voice at work, and the idea of workplace democracy has faded from public discourse. That is what drives the exploration of alternative forms of representation — not instead but alongside of the elusive reforms that might enable more workers who want union representation to get it.

China is at a different phase of economic development. Its current spate of strikes might remind us – and perhaps even China’s leaders – of the period leading up to our New Deal, when independent unions came to the fore in a new industrial relations framework. But when China’s leaders observe the more recent decline of independent unionism and collective action in the West, and especially in the US, they must wonder whether they can muddle their way through the current era of labor conflict, avoid the political perils posed by an independent labor movement, and reach the more peaceable and mostly union-free state of affairs that may await on the other side. That, in any event, seems to be the plan, for there is no sign of any softening of China’s stance toward independent unions, even as strike activity continues to rise.

Can China ride out its current labor troubles and build a more advanced and productive economy, as they hope to do, without allowing workers to form independent unions to represent them in economic (and social and political) contestation? Just because it has not been done before does not mean that China cannot do it. Much as China has defied the conventional wisdom about the necessity of secure property rights for economic development, China may defy Western-inflected expectations about the role of independent trade unions in achieving industrial peace.

Clearly, however, China’s leaders cannot rely on repression alone to combat independent labor activism. For one thing, repression tends to backfire in the form of more violent and politicized labor conflict. For another, the regime’s legitimacy and longevity may depend on addressing workers’ grievances, boosting consumer spending, and distributing more of the fruits of economic growth to ordinary citizens. That is what independent unions and collective bargaining helped to achieve during the 20th century in the US and elsewhere, but that is not on the table in China. So the Party-state is improvising on other fronts — raising minimum wages and labor standards; facilitating workers’ access to arbitral and judicial enforcement of their legal rights; promoting reform, and a limited role for “direct elections,” within the Party-controlled official union; intervening in collective disputes and pressuring employers to make concessions to striking workers; and extending the “worker representative congress” system — with a history in China’s planned economy, and a superficial resemblance to German works councils — to private companies.

All of these reforms are simultaneously driven and constrained by the regime’s determination to avoid the rise of an independent labor movement. (So I argue in a book-in-progress.) For example, real direct elections in “grassroots” chapters of the official trade union might help make those official unions more responsive, and draw workers away from independent activism; yet elected grassroots union leaders might be hard to control, and might bring a measure of independent activism to the official union itself. And so the move to democratize union elections is cautious, spotty, and weak, and the official union continues to be seen as largely “useless” to workers. All in all, it remains to be seen whether China’s multifaceted strategy for quelling labor unrest can work without independent representation of workers in legal and regulatory channels, in collective bargaining, and in workplace participation schemes.

Here in the US, we might ask parallel questions about the patchwork of employment protections that proliferated as unions declined — minimum labor standards and anti-discrimination and anti-retaliation protections — and the internal compliance and “human resource” structures that have grown up in their wake. Can those legal and non-legal protections and processes, along with plaintiffs’ lawyers and worker centers (which are much freer to support workers in the US than in China), fill the vacuum left by union decline? China, and our own history of labor unrest, both remind us that the question would have a different cast if workers were hitting the streets en masse over their grievances. Unless that happens, we will be running, and China will be watching, a vast social and political experiment in industrial life after unions.