labor A Labor Day Like No Other
Labor Day 2023 isn’t like Labor Day 2022. It isn’t like any Labor Day of the past half-century.
The reason is simple: Labor law has changed.
Two Fridays ago, the National Labor Relations Board restored a good deal of labor law to its original purpose of enabling workers to bargain collectively for better pay and working conditions.
In its decision in the Cemex case, the Board ruled that when a majority of workers at a company or worksite affiliate with a union (something they could do by signing affiliation cards), the employer could either recognize that union voluntarily or request that the Board hold an election. If, during the run-up to the election or the election itself, the employer committed an unfair labor practice (ULP), the Board would immediately declare the union recognized and order the employer to begin bargaining with it.
That, to put it mildly, was a fundamental change to the law of the past 50 years, which court decisions and Republican-dominated NLRB rulings had tilted heavily to employers’ interests. During that time, there was no effective punishment when employers committed virtually any unfair labor practice under the sun in their invariably successful efforts to squelch their workers’ campaigns to unionize. Their most effective ULP was firing or threatening to fire pro-union employees, for which the “penalty” was to be ordered, after a process that could take several years, to rehire those employees and give them back pay, minus anything those workers had earned at other jobs since being fired.
There are a host of reasons why the share of private-sector workers who belong to unions has declined from roughly 35 percent 70 years ago to a bare 6 percent today (offshoring, state “right to work” laws, and so on), but the firing of workers who’d otherwise vote to go union was the most effective.
The centrality of firing to union deterrence has been made clear in recent years by the successful unionization efforts of workers who can’t be fired because they can’t really be replaced: professionals like university teaching and research assistants, medical interns and residents, museum staffers, think-tank policy experts, journalists at the handful of still-solvent news outlets, or foundation grant-makers. Their unionizations have been sweeping the country in the past two years, while the share of unionized sales clerks, mechanics, waitstaff, kitchen, warehouse, and assembly-line workers, all of whom can be replaced, has continued to decline.
In the (I shudder to think) six decades that I’ve been writing about unions, I’ve probably read at least three dozen books and I don’t know how many papers on strategies that could enable unions to grow again. I’ve seen anciens régimes ousted by insurgents who pledged they could revive their unions again. Yet every year, the share of unionized private-sector workers has continued to drop.
Strategies mattered, of course, but none of them could overcome the hard realities of the law: Once employers started coercing their workers, subjecting them to anti-union propaganda meetings, and firing the workers’ leaders, strategy was as naught.
With the NLRB’s ruling in Cemex, that has ceased to be the case. And it’s already having an impact. Workers at a Trader Joe’s in Manhattan whose union election ended in a 76-76 tie (therefore lacking a majority) filed with the Board last week that ULPs by the company during that election should, under the Cemex decision, nullify the election and allow their union to be immediately recognized.
With that, the post-Cemex era has begun.
THE CEMEX DECISION WASN’T THE ONLY decision the Board has announced in the past ten days. It also has issued rulings to speed up the timing of elections and to protect individual workers who, by their lonesome, begin agitating for a union.
Cemex, however, doesn’t cover all the ways that management can avoid unionization even when a clear majority of its workers have affirmed that they want a collectively bargained contract. Cemex can compel a union-busting employer to start bargaining, but it can’t compel that employer to actually reach agreement with workers and sign a contract. Unfortunately, that too is a tactic that employers routinely use to maintain control of their workers. Starbucks has refused to seriously bargain with workers at the more than 300 outlets where workers have voted to unionize, just as Amazon has refused the same with the unionized workers at its Staten Island warehouse.
The reason the Board didn’t address that issue in Cemex is that the National Labor Relations Act expressly prohibits the Board from imposing a contract if the parties fail to come to terms, or to appoint an arbitrator who could do that. In congressional Democrats’ more recent attempts to amend the NLRA so that it is no longer a tool for union-averse employers, they’ve included language that would permit the Board or its arbitrators to impose a first contract after a certain amount of time (could be 90 days, could be 180) has elapsed with no resolution in sight. But none of the Democrats’ bills to strengthen labor law, which date back to Lyndon Johnson’s presidency, have been able to surmount the 60-vote cloture hurdle in the Senate.
That apparently hasn’t daunted the moving spirit behind Cemex, NLRB General Counsel Jennifer Abruzzo, the Biden appointee who has become the most effective public official to champion the cause of American workers since New York Sen. Robert Wagner (author of the NLRA). Abruzzo has submitted a brief to the Board for its consideration that would deal with a situation in which an employer delays ad infinitum reaching a contractual agreement with its workers.
In a case called Thrive Pet Healthcare, she argues that an employer’s failure to bargain in good faith constitutes an unfair labor practice, which therefore requires a remedy. The law forbids the Board from imposing a contract as a remedy, so Abruzzo argues that a permissible remedy would be to make the damaged parties—the workers—whole by ordering the employer to give them wages, benefits, hours, and such that are comparable to those provided by comparable unionized companies in their field, or at least companies at the high end of their industry.
Such a ruling from the Board would be, like Cemex, a breakthrough in worker rights, even as it would also be a halfway house of a remedy. It would not be a contractual agreement, and as such would not necessarily involve the usual contractual stipulation requiring new bargaining when the contract expires. It would not enable the union to collect dues from workers who opt not to pay. It also fails to grapple with the problem that when only 6 percent of private-sector workers are unionized, the number of unionized or high-road employers setting the standards that an employer subject to a ruling under Thrive Pet would be compelled to meet may well be zero.
That said, Thrive Pet would likely define the outer limit of how much the NLRA can be restored to its original purpose, absent congressional action to fully restore it.
In a further development, the NLRB may now have the votes in the Senate to continue its recent string of pro-worker rulings. One reason why a rush of decisions has come down in the past two weeks is that the term of the third Democrat on the five-member Board (by custom, the president gets three appointments and the opposition party two), Gwynne Wilcox, is about to expire. The normal custom is that the Senate considers one presidential nominee and one opposition-party nominee together, but Senate Republican Leader Mitch McConnell has left one of the two Republican Board seats open for the past year, refusing to put a GOP nominee forward. Once Wilcox is off the Board, it would be down to three members, and by law, the Board can only make rulings that alter the status quo if it has at least four members.
Up to now, Democrats have waited patiently and foolishly for McConnell to produce his nominee, which he clearly had no intention of doing. According to my sources, it appears that Majority Leader Schumer is done waiting and will go ahead with the vote to confirm Wilcox to a new five-year term. As Alaska Republican Lisa Murkowski voted in committee to move Wilcox’s nomination to the floor, Schumer appears to believe he has the votes to confirm Wilcox and thereby enable the Board, with four members, to continue to secure workers’ rights.
IN A SENSE, WHAT ABRUZZO HAS BEEN ABOUT at the NLRB is what Lina Khan has been about at the Federal Trade Commission, and Gary Gensler at the Securities and Exchange Commission: restoring agencies to what they were intended to be when they were created by Franklin Roosevelt’s New Deal. Khan has been hard at work at the FTC to revive the broad purposes of antitrust law, which were radically narrowed during the Reagan era in ways that permitted corporations to run roughshod over workers and consumers. Gensler has been expanding the scope of the SEC’s regulations to cover the myriad of financial institutions and devices that have arisen alongside the banks and exchanges that the SEC initially regulated, with the understanding that the law’s authors meant the SEC to regulate finance, not just the set of companies that existed in 1935. So too for Abruzzo.
All of which is to say that Bidenomics doesn’t consist merely of the landmark legislation the president was able to maneuver through Congress in 2021 and 2022. Much of that legislation marked a return to industrial policy, and particularly to the place-based industrial policy that marked the New Deal’s development policies in the then-underdeveloped South and West. Just as Roosevelt brought hydropower to those regions and electric power to rural America, so Biden’s industrial policy has focused on rural and Rust Belt regions from which private capital has been fleeing for the past 30 years.
In a larger sense, Biden is the first president to undertake the replacement of the market neoliberalism of the past four decades with an updated (and emphatically not white-only) version of the pro-worker policies that defined the New Deal. That includes reinvigorating the administrative agencies, which are crawling their way back to their original strength. No such task proceeds in a perfect straight line, and there will always be disappointments. But there hasn’t been enough recognition of what both Biden’s legislation and his regulatory agencies are accomplishing for the nation’s working class.
The non-electoral threat looming over Bidenomics generally, and over the NLRB rulings specifically, is the Supreme Court. In the normal course of events, a case petitioning the courts to overrule Cemex would take at least a couple of years to reach the Supremes. Normality, however, hasn’t figured prominently in recent Court decisions, and Sam Alito has made clear he hates unions even more than he hates a woman’s right to an abortion. There’s little doubt that he and Clarence Thomas would invoke the recently-created-out-of-thin-air “major questions doctrine” to strike down Cemex, if possible, even before it takes effect. As to the other Republican justices, that would be a matter of post-Dobbs political calculation.
In recent polling, the Court’s approval rating has sunk to a historic low of roughly 40 percent, while the approval rating of unions has risen to a historic high of roughly 70 percent. The four younger Republican justices, who are looking forward to long tenures on the bench, have to be concerned that more rulings that go squarely against public sentiment increase the likelihood that Democrats—if not Biden, then his successors—will move against them, whether by increasing the Court’s size, imposing term limits, narrowing the scope of cases it can take, or some other form of disempowerment. Unlike Roe v. Wade, of course, Cemex is not now nor is likely to become a household word, but continuing the Court’s war on unions as they grow steadily more popular might give not just Chief Justice Roberts but Associates Gorsuch, Kavanaugh, and Barrett some pause.
Just how popular are unions? In the last couple of years, they’ve been polling consistently at or around a 70 percent approval rating, and a poll taken for the AFL-CIO released last week shows that among Americans aged 18–29, their approval rating is at a stratospheric 88 percent.
Is that number an outlier? In a piece I wrote earlier this year, I totaled up all the votes in all the NLRB-supervised unionization elections over the past two years held at the nearly 20 universities where grad student teaching and research assistants were seeking union recognition. The percentage of those grad students who voted for the unions was 89 percent. So that 88 percent approval rating for Americans 18–29 doesn’t look like an outlier after all.
What it also shows is that the support for unions among young Americans runs through all classes and races, and that the reason young, unreplaceable Americans have been unionizing and young, replaceable Americans haven’t has been the rules governing what employers can do—rules that ceased to be rules two Fridays ago.
IN 1995, WHEN SEIU PRESIDENT JOHN SWEENEY challenged incumbent AFL-CIO President Lane Kirkland in what proved to be a successful campaign to oust the Federation’s stick-in-the-mud leader, one of the issues that rose to the surface was that the share of their budgets that American unions in aggregate were devoting to organizing was a pathetic 3 percent. Some decades earlier, when unions were still large and powerful, that was in part due to the myopia of many union leaders, who believed their power would endure without having to enroll new members. “The organized fella is the fella that counts,” Kirkland’s predecessor as AFL-CIO president, George Meany, famously said while explaining why there was no need to unionize still more fellas (much less gals).
After Richard Nixon’s NLRB effectively relinquished the power to punish employers for unfair labor practices, most union organizing campaigns began running up against stone walls. For unions consisting of replaceable workers, devoting just 3 percent of their budget to organizing could be justified as a rational calculation.
But now, those budgets need to rise from 3 percent, if that’s still the accurate figure, to 30 percent, or maybe 60 or 90 percent. Last June, former New York Times labor reporter Steven Greenhouse and I co-authored a piece arguing that with support for unions at record highs, this should be “Labor’s John L. Lewis Moment,” as our headline proclaimed. By that, we meant that unions should emulate what Lewis, then president of the United Mine Workers, and Sidney Hillman, then president of the Amalgamated Clothing Workers, did in 1936, just a few months after the NLRA was enacted. They devoted close to their entire union treasuries to organizing the unorganized: autoworkers, steelworkers, rubber workers, electrical workers, and the Southern clothing, garment, and textile workers to whom their unions could suddenly reach out. The Mine Workers alone hired 500 organizers to go to the steel mills and the auto plants to make their case. And within a couple of years, the mightiest unions America has ever seen were born, and grew exponentially.
It’s important to note that these efforts took place even before the Supreme Court’s decision in Jones & Laughlin Steel, declaring that the NLRA was constitutional, was delivered in 1937. Lewis and Hillman knew that workers wanted unions, and that the law, at least provisionally, was on their side. That was enough for them to go all in.
The same conditions now exist today, and what the nation needs is its union leaders, with treasuries that dwarf those of Lewis and Hillman, to do what those leaders did in 1936. The Trader Joe’s workers’ filing in the first post-Cemex case came from Trader Joe’s United, an independent union that has organized four locations nationwide. But the bigger unions need to get into the game.
SEIU hasn’t yet devoted major resources to the Starbucks campaign; now’s the time to do it. The Teamsters, coming off their victory at UPS, have been planning a campaign at Amazon; now’s the time to go in big-time. The UAW is seeking to have its contracts with the three legacy automakers extended to the plants making electric cars and lithium-ion batteries; now, those plants have become more organizable, even regardless of what the union wins in bargaining. All the auto and aerospace factories in the South where companies have routinely employed unfair labor practices to deter one unionization effort after another are now significantly more likely to go union. (And if the Board issues a Thrive Pet Healthcare ruling, those factories may becompelled to adopt the pay levels and work standards in UAW contracts even if they don’t gounion.)
This Labor Day, in short, begins the most propitious time for unions to organize workers in more than half a century. Comes the moment, comes the movement? It had better.