Solidarity at Scale
By Ted Fertik (he/him) • April 20, 2021 • Vol. 01 No. 03
Illustration by Jay Davis (she/her)
Editor’s Note: Soaring corporate profits, extreme pressure on workers, courageous organizing efforts, and the uncertain fate of the Protecting the Right to Organize (PRO) Act in Congress have put the status and future of the labor movement at the center of U.S. politics. In this essay, scholar-activist Ted Fertik explains the current state of the labor movement, the promise of the PRO Act, and why now is the most critical moment for U.S. labor since the New Deal.
Recently, a consensus spanning liberals to leftists has emerged that, over the last 40 years, the balance of power between labor and capital has shifted sharply in capital’s favor, and that this change has been economically and politically devastating for U.S. democracy. It is now commonplace to find economists making an argument that was deemed laughable only a decade ago: business’s domination of workers has slowed growth, fed asset bubbles and financial instability, and made the U.S. and world economies substantially more crisis-prone.
Many factors have contributed to the weakening of worker power—including offshoring and import competition, unnecessarily tight monetary policy, and austerity. Pride of place, however, belongs to the deliberate decimation of unions, especially in the private sector, accompanied by the failure of labor law to keep up with employer anti-union tactics. Union density in the private sector has fallen to 6%, and with that collapse has gone labor’s ability to set wage standards across most of the U.S. economy. Since 2010, right-to-work laws that further weaken unions have been passed in states that once had powerful labor movements: Indiana (2012), Michigan (2012), Wisconsin (2015), West Virginia (2016), and Kentucky (2017). Though teacher’s strikes in 2018 and 2019 momentarily reversed the trend, by 2017 major strike activity had declined by a factor of 70 from its peak in 1974.
The coronavirus pandemic exposed and exacerbated the detrimental effects of this long decline. The absence of unions dramatically increased the risks that workers faced on the job. In meat-packing plants, warehouses, schools, and hospitals, workers had few options besides small-scale work stoppages to force management to supply them with personal protective equipment or to refit workplaces to limit the spread of the virus. Without unions, workers could not negotiate the sorts of short work time schemes—in which workers work reduced hours but receive full pay, with the difference subsidized by governments—that made it easier for European workers to remain employed during the pandemic. The weakness of unions is significantly responsible for the fact that so many workers lack basic benefits like paid sick leave and why, in many states, the unemployment system is so punitive and dysfunctional, with miserly benefits of limited duration, employer-friendly exemptions from eligibility, and onerous and humiliating requirements meant to shame and starve people back to work.
The pervasive insecurity of working class life has undoubtedly contributed to the difficulty that the United States has had containing COVID-19: workers who can’t stay home when they get sick, and who can’t compel their employers to protect them on the job—not to mention, who can only afford housing that is severely overcrowded—are workers who are more likely to contract and spread a deadly virus.
In the United States, the scales have always tilted in favor of capital. But it has not always been so lopsided.
In the United States, the scales have always tilted in favor of capital. But it has not always been so lopsided. Organized labor formed the backbone of the Democratic Party’s electoral coalition from the 1930s until the 1980s. The labor movement’s power was significantly responsible for what social welfare programs did get created in the United States, including public housing and Medicare. Thanks to the 1935 Wagner Act and its interpretation by the National Labor Relations Board (NLRB), U.S. labor unions developed the practice of routinized collective bargaining, with multi-year contracts, seniority clauses, health and pension benefits, and grievance procedures. As is by now well known, in a concession to the powerful Congressional bloc of Southern Democrats, the Wagner Act, along with other legislative landmarks of the New Deal, excluded agricultural and domestic workers, in order to thwart interracial solidarity and preserve the quasi-feudal, white supremacist social structure of the South. Many unions that did form were segregated, and only a few of the unions that represented Black and brown as well as white workers worked to confront the racist occupational hierarchies that characterized so much of U.S. industry.
Within those limits, workers and their families saw dramatic increases in living standards and in many cases substantially expanded opportunity for their children. But starting with the Jimmy Carter administration, things began to shift. Persistent inflation was widely blamed on union wage demands. Subsequent Democratic presidents and Congresses joined their Republican counterparts in embracing deregulatory measures and trade policies that contributed to weakening U.S. unions, and then failed to muster the political will to strengthen workers’ rights.
Since then, the Democratic Party’s commitment to labor has instead been limited to meaningful but fragile regulations and rulings by the NLRB and Department of Labor, often quickly reversed by Republican administrations. In a few cases, bargaining rights have been extended to public sector workers at the state level. Throughout this period, Democrats rarely evinced any particular concern over the drastic shrinkage of the labor movement, the near disappearance of large-scale strikes, or the brazenness of corporate anti-union practices. Yet workers continue to recognize the benefits of union membership. When asked, well over half of non-union workers say that they'd join a union if they could, but less than 11% of US workers are in fact represented by a union.
It took the election of Donald Trump, and his disturbing strength in many former union strongholds in the Upper Midwest, to make mainstream Democrats realize that the decline of unions has not only depressed workers’ wages and benefits; it has also been politically disastrous for the party as a whole. Republicans, by contrast, have long understood the electoral benefits of breaking unions, especially public sector unions. For instance, after sweeping into power in 2010, Wisconsin Republicans systematically dismantled worker protections and rights. Republicans’ anti-labor strategy makes perfect political sense. Unions reliably mobilize voters and expand participation. They are also one of the only institutions in American life through which a progressive and solidaristic worldview can be communicated and socialized, especially in parts of the country that are otherwise culturally dominated by institutions that inculcate support for conservative ideology, such as talk radio, evangelical churches, and the National Rifle Association. Destroying union power has proven a winning strategy for the GOP.
The Legal Roots of Union Decline
Unions, especially those in the private sector, have declined for many reasons, many of them related to structural changes that have affected all advanced capitalist economies. But economics do not tell the whole story. Legal developments have systematically eroded labor’s capacity to organize, hollowing out the achievements of the New Deal.
In 1935, the Wagner Act granted workers a legally protected right to organize a union free of employer intimidation or coercion. It directly infringed on employers’ property rights by essentially saying that bosses could not stop workers from engaging in concerted activity in the workplace, and it also gave workers a protected right to strike and in so doing to prevent employers from utilizing their capital. In 1937, the Supreme Court upheld these historically unprecedented curtailments of employers’ rights. But in subsequent years employers and their lawyers began to argue that the First Amendment’s guarantee of free speech meant that employers had a protected right to communicate their anti-union views to their employees. And the NLRB, which in its earliest years had interpreted its mandate as encouraging unionization, already in the late 1930s began to view its role as neutrally arbiting between employers and workers. Labor famously suffered an enormous setback in 1947, when an emboldened conservative majority in Congress overruled a presidential veto to pass the Taft-Hartley Act, which imposed a number of debilitating restrictions on unions and on the right to organize and strike.
Congress has not legislated any significant attacks on union rights in decades, but the conservative legal movement has been incredibly busy gutting workers rights from the bench. Particularly with Harris v. Quinn (2014) and Janus v. AFSCME (2018), the Supreme Court has done its part to weaken public sector unions by upholding the First Amendment right of workers not to have to pay union dues. The Court ruled that because collective bargaining by public employees is inherently political, mandatory dues represent coerced speech. In Epic Systems v. Lewis (2018), the Court essentially ruled that companies can force their employees to sign away Wagner Act rights to concerted action as a condition of employment.
Conservative offense has been complemented by liberal inaction.
All the while, conservative offense has been complemented by liberal inaction: the labor movement and Democratic lawmakers have failed to update labor law to rebalance the scales. Relatively modest efforts to reform labor law were felled by a filibuster during the Carter administration, when, in the aftermath of Watergate and the Church Committee revelations, Democrats held huge majorities in both houses. Labor’s next attempt, in the late 2000s, was the Employee Free Choice Act (EFCA). The EFCA would have allowed workers to form a union simply by getting a majority of workers to sign a union card (so-called “card check neutrality”), as an alternative to the employer-friendly secret ballot election, which (though not explicitly required by the National Labor Relations Act) had become the only way that the NLRB certified new unions. EFCA also would have eliminated the employer practice of killing successful union drives by refusing to negotiate a first contract through the imposition of mandatory first contract arbitration.
In 2008, candidate Barack Obama promised to pass EFCA. But even during the brief window when Democrats had 60 votes in the Senate, EFCA’s path around a filibuster required the support of conservative Democrats like Blanche Lincoln of Arkansas, a state with less than 2% union density and home to the most notorious anti-union employer in the world, Walmart. (After being booted from the Senate in the Republican sweep of 2010, Lincoln began lobbying for her state’s biggest local business, Walmart.) Despite his promises, President Obama made no effort whatsoever to pass EFCA. The labor movement has always been dependent on Democrats to prevent matters from getting even worse. Lately, it has been largely unable to impose any political costs on Democrats for their inability or unwillingness to deliver.
Reforming U.S. labor law is vital during this rare window of Democratic congressional control. Any reforms would have to reinvigorate workers’ organizing rights and constrain employers’ ability to undermine organizing. Absent such changes, defeats like the one apparently suffered by workers at an Amazon warehouse in Alabama, in a struggle that cannot but remind us of the long history of militant but also overlooked Black-led unionism in the heart of the U.S. South, will continue to be the rule. And any hope of battling the new Trumpian nationalism for the hearts and minds of U.S. workers will be diminished.
The Protecting the Right to Organize Act
The U.S. labor movement has largely aligned around the Protecting the Right to Organize (PRO) Act as its path to renewal. The PRO Act was recently passed without a single Democratic defection in the House and currently awaits a less certain fate in the Senate. If passed, the statute would represent the most transformative labor legislation in nearly a century. If adopted, it would also answer to the steady improvement of public attitudes towards unions.
The PRO Act incorporates key elements of the EFCA while going beyond its predecessor’s aspirations. Among its provisions, the PRO Act requires mandatory first contract arbitration. It also specifically bans a host of employer anti-union practices that have become widespread in recent decades, like the so-called “captive audience meetings” that are central to contemporary boss campaigns. But PRO goes even further, pursuing a root-and-branch repeal of anti-worker legislation and jurisprudence enacted since the breakthrough of the 1935 Wagner Act (still perhaps the most radical piece of legislation ever enacted by the U.S. Congress). It would repeal central components of the infamous Taft-Hartley Act of 1947, eliminating its ban on so-called “secondary boycotts” (essentially workplace actions by other workers in support of striking workers, such as truckers refusing to transport the products of a company that was being struck). It would also repeal the grossly misnamed “right to work” clause, which permits state governments to prohibit mandatory dues from workers in a unionized workplace, while still requiring unions to represent even those workers who refuse to pay dues.
The ban on secondary boycotts and the “right to work” carve-out both cut to the very heart of the central resource on which any labor movement depends: solidarity at scale. Prohibitions on secondary boycotts essentially mean that workers at one employer can’t draw on the strength of other workers in their fight. The right-to-work clause undermines solidarity within organized workplaces, because it encourages workers to “free ride” by not paying dues, fostering resentment between workers and leaving unions without sufficient funds to provide effective representation. In targeting these long-established employer advantages, the labor movement shows that it recognizes that it will live and die not only by the pressure that one particular group of workers can place on one employer in a radically fragmented economy, but by the collective strength of workers everywhere.
Were the PRO Act to become law, we should expect to see unions winning representation elections at a far higher rate. We should see employers resort less frequently to illegal tactics (because the penalties would be more aggressively enforced and carry meaningful fines). And with unions winning more elections and finding it easier to negotiate first contracts, more workers would see other workers winning better wages and working conditions when they organized—and thus would be more likely to want to imitate them.
Labor’s Holy Trinity
What are the prospects for passing the PRO Act when Democrats have the narrowest of majorities in the U.S. Senate?
Historically, U.S. workers have been able to significantly shift the overall legal regime of labor relations in their favor only when three factors were simultaneously present: a left-liberal consensus that lopsided employer power held back economic growth by reducing workers’ wages; left-liberal governing majorities; and genuine working class militancy that had the ability to impose significant costs on employers such that at least some fractions of the capitalist class are willing to accept unionization as the price of labor peace. This was the formula that led to passage of the Wagner Act in 1935, and to a significant extent it was this same pattern that led to the dramatic expansion of public sector bargaining rights in the context of Civil Rights Movement-inflected strikes in the 1960s.
By contrast, the last time labor genuinely pushed for labor law reform was during the 1970s, with Democratic supermajorities under Jimmy Carter. High inflation rates and considerable hostility between unions and the “new social movements” of the 1960s and 1970s turned left-liberal opinion against unions, such that the AFL-CIO had tepid support from the Democratic Party at best. Furthermore, after a surge in union militancy in the early 1970s, strike activity was trending significantly downward. Likewise, when the labor movement lobbied Obama to spend political capital on passing EFCA, in 2009, it had little success. Democratic supermajorities, Occupy, Thomas Piketty, fast food workers, Elizabeth Warren, Bernie Sanders, and the rest had not yet consolidated a new pro-union liberal common sense, and labor militancy was at a historic ebb tide.
Democrats will need to believe that their own long-term electoral success, especially given the GOP’s structural advantages, depends on a revival of unionism, and that the long-term benefit outweighs the potential short-term electoral cost in the form of an advertising onslaught by the U.S. Chamber of Commerce.
Today, despite very hopeful bursts of activity, from nurses in North Carolina to the recent organizing efforts in an Alabama Amazon warehouse, the labor movement is shrinking. Strike activity remains near historical lows. It is unlikely that labor law reform will prevail because some sectors of capital agree to accept a government-imposed settlement. Razor-thin Democratic majorities would almost certainly have to defang the legislative filibuster in order to get it through. Democrats will need to believe that their own long-term electoral success, especially given the GOP’s structural advantages, depends on a revival of unionism, and that the long-term benefit outweighs the potential short-term electoral cost in the form of an advertising onslaught by the U.S. Chamber of Commerce. The labor movement and its allies will need to convince Democrats of the political necessity of empowering workers, or else labor law reform will yet again elude us.
The Labor Movement Beyond Labor Law
Enacting the PRO Act should be just the first step in a full-spectrum strategy to revive the labor movement in the United States. Beyond the PRO Act, there are three key areas of policy that are critically important to strengthening worker power and enabling working class people to enjoy the fruits of their labor.
The first is immigration reform. Undocumented workers, as the pandemic has shown, are a critical component of the essential workforce that we have all relied on to make it through the past year. They are also among the most exploited and exploitable workers. The PRO Act includes important protections for undocumented workers. Legalizing their status, however, would eliminate the threat of deportation that hangs over every undocumented worker, which employers remorselessly use to deter organizing, to pay subminimum wages, and to thwart workers exercising any of their rights under labor and employment law. It took concerted organizing over many years by immigrant workers to win the majority of the labor movement over to support for immigrant rights. But by and large, today’s labor movement sees immigrant rights both as a fundamental question of racial justice and as a necessity for defending and improving standards for all workers.
The second area the labor movement must focus on is macroeconomic policy. The last time the labor movement was involved in any direct or significant way in making macroeconomic policy in the United States was the 1970s, when unions still had high density in industries that were considered essential to the well-being of the U.S. economy as a whole, especially autos and steel, and therefore had to be consulted on policies like wage and price controls. In alliance with Coretta Scott King and other civil rights leaders, much of the U.S. labor movement campaigned for full employment legislation in the 1970s. Ever since, organized labor has been largely shut out of this domain of policymaking, and in turn has invested less in the internal policy capacity to be able to influence macroeconomic policymaking even at the level of discourse. This appears to be shifting and it is urgent that the shift accelerate. More than any other policy, Federal Reserve chair Paul Volcker’s massive interest rate hikes starting in 1980 pummelled unions in the private sector. Ever since, consistently weak labor markets have compounded employers’ advantages in the legal sphere by increasing workers’ fear of unemployment and generally eliminating upward pressure on wages.
The labor movement should be among the loudest voices demanding that Congress and the Federal Reserve run the economy “hot”, as tight labor markets reduce workers’ fear of unemployment and increase their appetite for organizing.
Today, even the Republican Federal Reserve chair Jerome Powell appears to believe that policymakers have erred by consistently overstating inflation risks and understating the harm that workers suffer from persistently weak labor markets. The labor movement once understood that full employment was a fundamental precondition for union strength and working class prosperity. The labor movement should throw its complete support behind measures which increase the economic security of all workers—including measures such as a $15 minimum wage and child tax credits, both of which will embolden workers to make greater demands of their bosses. And the labor movement should be among the loudest voices demanding that Congress and the Federal Reserve run the economy “hot,” as tight labor markets reduce workers’ fear of unemployment and increase their appetite for organizing.
Finally, labor must put its full strength behind the type of massive public investment program in decarbonization represented by the Transform, Heal, and Renew by Investing in a Vibrant Economy (THRIVE) agenda. Authored by the Green New Deal Network, the THRIVE agenda would commit $1 trillion per year over 10 years in new federal spending on everything from clean energy and transportation to regenerative agriculture to the care economy. Labor, of course, is fully in favor of massive public investment. The question is whether labor is committed to decarbonization. There are encouraging signs that unions in construction and manufacturing are increasingly seeing that the energy transition the U.S. economy must undergo to head off climate catastrophe will also be a jobs bonanza. (Even automakers such as General Motors are beginning to get religion.) But many unions also fear the loss of jobs in high-wage blue collar industries like fracking and in pipeline construction.
The THRIVE agenda holds out the promise of a deeper alliance between unions and the huge swathes of poor and working class people in this country, especially Black, brown, and Indigenous, who have long been excluded from the benefits of unions, and who have been most exposed to the social and environmental ills that capitalism leaves in its wake. As an alliance of unions, community organizations, and environmental and climate justice groups, the Green New Deal Network and its THRIVE agenda emphasize investment in front-line communities and comprehensive labor standards, including union rights, to ensure that the jobs that accompany a Green New Deal are sustainable jobs—both for the planet and for workers.
Labor law reform, immigration reform, full employment policy, and massive public investment: this is not a small agenda for a labor movement that is far from the peak of its strength. This is, however, a moment when the public is warming toward unions, when the president of the United States is willing to film pro-union public service announcements, when the common sense among economists and political scientists has shifted sharply in favor of the merits of worker power, when massive public investment is meaningfully on the Democratic Party’s governing agenda, and when even central bankers favor tight labor markets. Whether all this will be enough, of course, still remains to be seen. Regardless, the PRO Act and linking workers’ rights to broader economic, racial, and environmental justice represent labor’s most important opportunity in more than two generations.
Ted Fertik (he/him) is a senior strategist with the Working Families Party and with the Grassroots Policy Project. This essay represents the author’s personal views.
Edited by Ashraf Ahmed (he/him)
