For the first century or so of the modern union movement, unions were esssentially extra-legal. They were conceived as alternative centers of power that challenged the state and capitalist control of production that was itself instituted by state-enforced property regimes. As such, unionization was not fundamentally about making better deals with capital, or improving conditions of wage-labor, but of changing the dynamics of economic control. The primary goal was worker control of the means of production. As such, there was no question of unions being legally sanctioned entities that would enter into state mediated bargaining with capital.
One immediate consequence of this radical orientation was a militant practice. Whether violent or nonviolent, labor clashed with owners to a degree that has dropped out of the consciousness of at least the US public in recent decades. Haymarket, Homestead, and numerious sites in Appalachia were famous moments of conflict between workers and organizers, on the one hand, and either hired militias or official police on the other. These conflicts had a profound effect on the conditions of labor in the US and the industrialized West more generally. But in the mid-2oth c, the fundamental structure changed. Unions were legalized under specific rules. The ideal of worker-ownership was dropped everywhere in exchange for a regulated and legally guaratneed right to bargain. Different specific deals were struck in different countries, with the US arguably going the worst for labor. But everywhere the nature of the contest changed from a radical challenge to private ownership to a bargaining context.
In the US at least, it is now clear that the long struggle to maintain the gains of the first half of the 20th c has been lost. The legalized bargaining context has simply been a failure. Unionization has dropped continually for several decades, production has been shipped out to authoritarian regimes abroad, and now we are seeing the legal dismantling of the last vestiges of the historic mid-century deal.
The question, then, is what to do about this. The most highly bureaucratized unions will surely continue to fight a rear-guard action, if for no other reason than that their highly paid leaders can only maintain their positions through the continued de jure existence of the system. (de facto reality for actual workers notwithstanding.) But for those who believe in unions in a more robust sense, indeed, even for those who reject radical visions of worker control and see unions as a necessary bargaining counterweight to capital, it seems to me that it is time to drop the legal fiction. The reality is that meaningful unionism - unionization that has any hope of even moderate reformist accomplishments - has been either killed outright as in the recent Michigan laws, or put into a permanent coma by ongoing bloodletting. So any union movement worth the name, in the present context, is going to be extra-legal. If it is now illegal in Michigan to set up a shop, no matter that the majority or workers want to, in which everyone joins forces for collective bargaining - if, as is now the case, the law enshrines the rights of any worker to free-load on the organizing efforts of others - then the only way to pursue the project of unionization is to engage in extra-legal mechanisms of solidarity. No doubt there will be those who will recoil in horror at the suggestion that workers might use coercive means to enforce solidarity with even democratically instituted labor agreements. Coercion, in the current world, is generally horrifying if employed by non-state actors, and virtually invisible when employed by the state.
Personally, I think this is a bit of irrationality that we need to get over. We need to stop ignoring the wars, prisons, executions, global environmental destruction, and other forms of massive violence by states and private capital, and stop reacting like over-sensitive children at the mere thought of coercive nonviolence, or occasional sporadic violence several orders of magnitude less extreme than that of the state, by workers. But leave that for now. My claim at the moment is just that we have two, and only two, choices in the current context: give up on unions as meaningful elements of the social scene, or return to extra-legal union movements.