For more than 50 years, organized labor has been on an almost-uninterrupted downward spiral of membership decline, representing 10.8 percent of the workforce today (6.1 percent in the private sector) as compared to 35 percent in the mid-50s. Hastened by globalization, deregulation, and technological innovation, union leadership has too frequently been stuck in lethargic bureaucratization, unable to recapture the aggressive involvement pressed forward by new unions during the Great Depression and World War II.
But now, in less than a year, workers have taken on the lion’s den of employer anti-union conduct by recruiting members and winning union elections in companies like Amazon, Apple, and Starbucks (so far there have been 300 election petitions filed with Starbucks in 35 states). In recent years, campaigns have also involved a range of jobs from graduate and research assistants at universities, journalists at big papers like The Los Angeles Times and others, and in art museums on behalf of professionals and security jobs. Organized efforts have moved forward in the union-free tech sector where traditionally labor has feared to tread.
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A confluence of pandemic-type issues triggered by a variety of safety disputes, protests against perceived unfairness in unilaterally imposed working schedules, as well as a real wage decline due to inflation, all appear to have set this off. But today’s labor shortage, a pro-union Biden administration, and the prominence of young, dedicated, and well-educated employees have produced a measure of success. The number of petitions filed before the National Labor Relations Board, the primary arbiter of union organizational disputes, has increased 57 percent within a year.
Yet labor’s road forward is not roadblock-free. The first factor is unrelenting employer anti-union tactics like so-called captive audience speeches where workers are called together on company time and property to hear anti-union message. Recently, Amazon did just that. The Biden-appointed NLRB general counsel is attempting to declare such tactics unlawful.
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The second problem is the somnolence of unions that spend an appreciably smaller percentage of their budget on organizing the unorganized than was the case during the union growth between the 1930s and the 1950s. In last month’s annual convention, newly anointed AFL-CIO President Liz Shuler proclaimed a timid goal of a million new members in 10 years, when the union movement of the ‘30s had gone from about 3 million members in 1934 to 9 million members in 1939. And all of this occurs at the very time that union assets, available for organizing, have grown 153 percent during the past two decades.
The irony is that the labor movement has a great opportunity in 2022. The new unions of the ‘30s tapped into the idealism of the young and principled, similar to today’s new worker-led efforts, challenging the ineffectiveness of the American Federation of Labor, which would not bring the skilled and unskilled as well as the Black and white together during the Depression.
Though some elements of labor, like the Communications Workers, Service Employees, and even the 19th-century Machinists have now de-bureaucratized aspects of existing union structures, the status quo too frequently impedes upward youthful activist progress in the union hierarchy. The new people in Starbucks and tech firms may have difficulty in advancing to top policymakers’ positions where too frequently incumbents eschew the hard work of organization.
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And finally, the insistence by labor and its allies that a change in labor law (admittedly deficient and badly in need of reform) is essential to labor’s revival is just flat wrong. Worker organizing initiatives, taking off from strikes, during 1933 and ‘34, preceded the 1935 National Labor Relations Act, not the other way around. Union growth continued nearly unabated in the teeth of the anti-union Taft-Hartley Act. The pro-collective bargaining Clinton and Obama NLRBs could not turn the tide of union decline. Today’s union successes also contradict this well-worn insistence.
Yet law can play a role, albeit a subordinate one. Employer neutrality (which even a reformed law cannot require) can make union organizations more successful — and perhaps anti-trust rather than labor law can make a difference here. The willingness of the Federal Trade Commission and Justice’s Antitrust Division to consider, in the words of FTC chair Lina Kahn “how to better address a merger’s labor market effects” induced Microsoft to enter into a union neutrality pledge because it feared anti-trust action against its merger with Activision Blizzard.
A decade ago, the British multinational First Group, committed itself to neutrality (I was the third party Independent Monitor implementing this) and union membership soared, inducing the company to negotiate a company-wide agreement with the Teamsters. So, as the NLRB’s activist stance with Starbucks demonstrates, there can be symbiotic relationships between law and labor — but it is not so simple as a change in the content of labor law. And unions are more likely to obtain neutrality through a friendly Biden administration or economic pressure.
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Successful union activism means independent bottom-up efforts like those undertaken in Amazon’s Staten Island facility — frequently where workers are emboldened by a labor shortage as well. The latter is a temporary phenomenon. This makes fundamental union reform necessary. And, in turn, that means either new unions or substantially renewed organizational energy and resources within the movement itself. Unions need to set more aggressive organizing goals, stop using the excuse that they need changes in labor law to organize more workers, and to use anti-trust (rather than labor) law to pressure companies to adopt employer neutrality. There is no other way.
William B. Gould IV is a professor of law, emeritus, at Stanford Law School; former chairman of the National Labor Relations Board, and author of “For Labor to Build Upon: Wars, Depression and Pandemic.”
