Why Can't Labor Get a Little More Help From Its Friends?

We'll begin with some good news. In mid-February, 7,600 baggage handlers and ramp workers for Continental Airlines -- painfully aware that they were the lowest-paid handlers in the industry and that their four previous attempts to unionize had all fallen short -- finally voted to join a union. This was a more arduous achievement than it may sound. Under the byzantine provisions of the Railway Labor Act, which governs labor relations in the airline industry as well, workers seeking a union need to win a majority not just of those employees who vote but of all the employees in their unit. Worse yet, their unit is defined as everyone in their job category within the United States: The more than 2,000 Continental ramp workers employed at the airline's Houston hub, for instance, could not vote to join the union on their own.

In fact, says Jeff Farmer, the organizing director of the Teamsters, the union that the ramp workers voted to join, "Continental has 47 stations across the country -- and we were able to reach out to all of them." That required a campaign on a scale that only half a dozen of America's unions would be able to mount, and even by those standards, the Teamsters' effort was extraordinary. "A number of other unions congratulated us," Farmer adds.

But the reason for the congratulations was sobering: The Teamsters' victory was just about the only good news that American unions had experienced in the first year of Barack Obama's presidency.

In 2008, unions had worked tirelessly for Obama's election in the hope that a Democratic president backed up by a heavily Democratic Congress could change the law that made organizing American workers so difficult. With the upset victory of Republican Scott Brown in the race for the vacant Senate seat from Massachusetts, however, those hopes were definitively dispelled. The failure to reform labor law almost certainly means that that the half-century decline of unions in America -- from representing nearly 40 percent of private-sector workers at the midpoint of the 20th century to representing just 7 percent today -- will continue apace. It means that the corresponding stagnation -- and periodic decline -- in the incomes of working- and middle-class Americans will likely continue as well.

But the failure of labor-law reform was hardly the only disaster that befell unions in 2009. Amid the greatest economic downturn since the 1930s, many thousands of unionized manufacturing, construction, and public employees lost their jobs, sending the percentage of unionized workers to record lows. Public support for unions also plunged, with both the Gallup and Pew polls showing a decline in public support of between 15 percent and 20 percent over the past several years. (In the Pew poll, those who had a favorable view of unions declined from 58 percent in 2007 to 41 percent in 2010.) Two developments fueled that decline: first, the travails of the Big Three automobile companies, for which one of the most prevalent explanations was the excessive labor costs that the United Auto Workers had inflicted on those companies (an explanation that relied on mislabeling the companies' obligations to their millions of retirees as existing wage costs). The second development, which bodes ill for the future of public-employee unions, is the rising backlash within a largely nonunion private sector against a still substantially unionized public sector, which has managed to retain the kinds of benefits (such as defined-benefit pensions) that were once routine in the private sector but that vanished as private-sector unions declined in size and clout.

Even the most basic expectations that unions had of the newly elected Democratic president and Congress were initially dashed. Though candidate Obama had campaigned against John McCain's proposal to tax employer-provided health-insurance policies, President Obama proposed a tax that would hit many union plans. Only when Richard Trumka, the AFL-CIO's new president, privately told Obama that his tax would provoke several major unions to withhold their support from Democrats in the 2010 midterm elections did Obama agree to raise the threshold on his tax so that it would spare most union members and other middle-class Americans. As well, the president's appointments to the National Labor Relations Board were delayed by Republican opposition in the Senate and by the administration's own unwillingness, first, to press for confirmation in a timely fashion and then to give recess appointments to the NLRB members. As a result, the five-member NLRB continues to limp along with just two members (one Democrat, one Republican), unable to rule on any contentious issues.

That said, the NLRB had few cases involving current organizing campaigns in 2009, chiefly because there was precious little organizing going on. Last year, unions devoted their energy mainly to the legislative battles for labor-law reform, stimulus legislation, and health-care reform. They pressed the administration for executive branch rules changes that may make the task of organizing workers less Herculean and that will better the lot of low-wage workers whether or not they belong to a union -- efforts that may soon bear some fruit.

The larger unions also were busy planning major organizing campaigns they would undertake if their reform bill, the Employee Free Choice Act, passed. Now, in the mordant words of one leading organizer, "we're trying to figure out what Plan B is."

***

This is hardly what unions expected when they plunged more than a quarter-billion dollars into their efforts to help elect Barack Obama and other Democrats in the summer and fall of 2008. The unions were the only element within the Democratic coalition able to mount a credible campaign for Obama in the sector of the electorate where his support was weakest: the white working class. Focusing on such relatively heavily unionized swing states as Ohio, Michigan, and Pennsylvania, they accomplished their mission: Unionized white men backed Obama by an 18 percent margin, even as nonunionized white men opposed him by 16 percent. The entire industrial Midwest ended up in Obama's column.

EFCA, which Obama had pledged to support, is designed to address a number of distinct shortcomings in existing labor law. Discharging a worker involved in an organizing campaign, or threatening to close or move a business if workers vote for a union, for instance, are forbidden by the current law, but the penalties are negligible, and such threats and firings have become routine. Employers can also delay elections for months if not years and compel their workers to attend one-on-one anti-union meetings with their supervisors. As well, companies are under no obligation to reach a contractual agreement with their workers even if they have voted to join a union and it is legally recognized -- indeed, a Massachusetts Institute of Technology survey showed that workers who won union status obtained a contract just 56 percent of the time.

EFCA sought to remedy these problems by increasing the penalties on management for violating the law, by forgoing the entire election process if a majority of workers signed union-affiliation cards (a process called "card check"), and by mandating arbitration of a first contract if no contract had been agreed upon within 120 days of the union winning recognition. The bill passed the House last summer, then went to the Senate where, like all substantive legislation in the past year, it hit a wall.

Tom Harkin, the Iowa liberal who chairs the Senate's Health, Education, Labor and Pensions Committee, quickly found that he couldn't rally all 60 Senate Democrats for the bill that had passed the House. Working with five other Senate Democrats from across the party's ideological spectrum, he developed a compromise proposal that abandoned the card-check proposal in favor of expedited elections and greatly enhanced penalties for employer misconduct. A modified form of binding arbitration remained in the bill.

This was a heavy lift in the Senate -- but without Obama's hands-on leadership, it stood no chance. "We wanted a jobs bill and EFCA right off the bat," Teamster President James P. Hoffa says. "Everyone expected it." Instead, Obama asked labor to wait until health care had been enacted. Labor also asked Senate Majority Leader Harry Reid to take up the bill last fall, but Reid, too, demurred until health care was passed. Nor did he push to break the Republicans' filibuster of the nomination of labor lawyer Craig Becker to the NLRB, as labor requested, in 2009.

By delaying labor reform until after their signature legislative efforts had passed, Obama and the Democrats were -- presumably, unknowingly -- following in the footsteps of earlier Democratic leaders who had failed their union allies. In 1965, about the only piece of Great Society legislation not enacted was the repeal of the Taft-Hartley Act provision that gave states the power to block unions from claiming as members all the employees in workplaces where they had won contracts. (In the early 1990s, Ken Young, then a retired AFL-CIO lobbyist, told me that Lyndon Johnson, with the federation's help, had gotten Congress to pass 85 of his 87 initiatives -- but not the modification of Taft-Hartley.) In 1978, as American management was beginning to invest heavily in union-busting endeavors, the first effort to reform labor law failed to win cloture in the Senate by two votes as President Jimmy Carter stood idly by. In 1993, President Bill Clinton responded to a similar labor-backed effort by appointing a commission to recommend changes in labor law to the next Congress -- which turned out to be run by Newt Gingrich. And last year, by asking his labor supporters to wait, Obama ensured -- unintentionally, of course -- that the next effort to revive organizing must wait until the next overwhelmingly Democratic Congress, whenever that will be.

Meanwhile, the percentage of American workers in unions continues to steadily decline. During the 1965 effort, more than 30 percent of private-sector workers belonged to unions. In 1978, the share was 26 percent; in 1994, 11 percent; and in 2009, just 7.2 percent. When the next chance to rewrite labor law comes around, the rate of private-sector unionization could be perilously close to zero.

***

With labor's prodding, and following some of the ideas first laid out in the Prospect's October 2009 special report on how government can help create good jobs, the administration has undertaken some initiatives on its own, executive-branch policies that don't require congressional action, that could help better the quality of private-sector jobs and modestly boost the prospects for unionizing workers. This February, the first annual report of the White House Task Force on the Middle Class called for using federal contracting policy -- the federal government spends over half a trillion dollars annually on contracts with private-sector firms -- to boost, where possible, the quality of the jobs of Americans working under those contracts. The task force said that it "recognizes that contracts should not be awarded to irresponsible sources with unsatisfactory records of business ethics, including noncompliance with labor and employment, tax, fraud and consumer protection laws." This tracked fairly closely the policies recommended, if not entirely implemented, by the Clinton administration.

What marked a new departure was the next sentence: "We also recognize that substandard wages and benefits can have negative impacts on employees' productivity and stability, which in turn can reduce the quality of performance on Federal contracts." The report added that specific contracting recommendations will soon be promulgated -- not as criteria that all contracts must meet, sources close to the deliberations say, but as factors that federal contracting officials should consider if the added costs aren't prohibitive.

A coalition of legal advocates, feminists, and unions have recommended designating four such factors for federal contracting -- a living wage, health benefits, pensions for workers, and paid family leave. Adopting any or all of these factors would improve the quality of some contracted jobs, much as municipal living-wage ordinances have improved the lot of contract workers in more than 100 American cities. Their effect on promoting unionization, however, isn't likely to be significant. "All this has very indirect and remote implications for organizing," says one union official who has worked on these efforts. At most, such policies "may create an incentive for companies to negotiate an agreement with a union that includes these factors, if they're adopted."

Unions are also hoping that the Labor Department will crack down on employers who insist their workers are independent contractors -- and hence, not able to join or form a union. (Such is the lot of the port truckers whom the Teamsters have been trying to organize.) They also hope that increased Labor Department enforcement of wage and hours violations will give unions more leverage in their campaigns to unionize miscreant employers. One organizer fondly recalls how Clinton administration Labor Secretary Robert Reich, acting under so-called hot-goods statutes, seized some clothing made by Los Angeles?area sweatshops that violated wage and hours laws, until Target and Macy's agreed to demand legal compliance from its subcontractors. A fine policy, but not one that necessarily translates to increased unionization.

Another helpful policy change is expected soon from the National Mediation Board. It would change the union election rules under the Railway Labor Act -- the rules requiring rail and airline workers to win a majority of all workers, voters and nonvoters alike, in order to win union recognition -- to permit workers to win recognition with a majority of those workers who actually vote.

With or without a change in the rules, the Teamsters' effort at Continental typifies the kind of organizing unions will continue to attempt under arduous circumstances. The huge campaigns that some major unions had been planning if EFCA had passed -- campaigns targeting such mega-retailers as Wal-Mart -- are no longer on the drawing boards. "The big unions are going back to campaigns that are fairly traditional," says one leading organizer. "They'll be ambitious; they'll be bottom up; they will take a long time."

Given the dysfunctionality of labor law, major unions will also continue their necessarily protracted efforts to pressure companies not to oppose their workers' efforts to organize, using alliances with unions from countries that have fairer labor laws. The Service Employees International Union has embarked on a global campaign, in conjunction with many unions in many nations, to persuade Sodexo, which employs thousands of food-service workers in the U.S. and hundreds of thousands around the world, not to interfere with their workers' campaigns to join unions. The Communications Workers of America will continue its campaign with Ver.di, its German counterpart, to persuade Deutsche Telekom not to obstruct the efforts of the workers at its U.S. subsidiary, T-Mobile, to unionize.

"This is all good stuff," the organizer says, "but it doesn't get us there. It's hard to imagine us reversing the decline absent the kind of transformational campaigns that the major unions were planning if EFCA passed."

"This moment," he says ruefully, "should have been a huge opportunity."

If nothing else, the experiences of 2009 seem to have taught most unions that the Democratic Party is their good friend during campaigns when the candidates need their help but isn't always there when the time comes to reciprocate -- and that sometimes they need to play hardball with Democrats. That's the lesson of Trumka's meeting with Obama and of the unions' support for Arkansas Lt. Governor Bill Halter's primary challenge to Wal-Mart's own senator, Blanche Lincoln. Unions need a supportive government to help them organize and create a thriving working class. If that requires getting tougher with their allies than they've customarily been -- well, it's about time.

***

The "Organizing Now" series of articles was produced in conjunction with Demos as part of a year-long joint project titled "The Way Forward," which will include further articles, Web features, and conferences on the hope for progress in the current political climate.

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