Tim Vizer/AP Images for Missouri Workers Center/Athena Coalition
Workers at Amazon fulfillment center STL8 walked off the job to demand better conditions, November 25, 2022, in St. Peters, Missouri.
For left-of-center policy wonks, this is shaping up as a banner week. Here in Washington, the journal Democracy is holding a “Middle-Out Economics” conference, featuring a host of progressive economists, Biden administration appointees, union think-tankers, and political consultants who grapple with the conundrum of how to translate Americans’ anti-plutocratic instincts into votes for candidates who support restoring power and income to American workers. And in another part of the leftie forest, the Roosevelt Institute held a webinar today in which one of the administration’s progressive stars, NLRB General Counsel Jennifer Abruzzo, and a panel of law school academics discussed the sudden wave of corporate challenges to the National Labor Relations Act, which the Supreme Court declared constitutional four score and seven years ago (i.e., in 1937).
Those challenges, which have been filed by Elon Musk’s SpaceX, Jeff Bezos’s Amazon, and the Albrecht family’s Trader Joe’s, were all mounted in a pushback against NLRB rulings that found them guilty of illegally firing or abusing (or both) workers trying to organize a union. Some have challenged the structure of administrative agencies; some have effectively called for diminishing the NLRB’s limited powers or scrapping it altogether. The challenges are many and varied, Abruzzo noted, because “deep-pocketed, low-road employers want to divert [the Board’s] sparse resources to defending ourselves in court … to slow down or prevent us from engaging in concerted action,” she said. “They’re just trying to stop our enforcement actions.”
“These esoteric legal arguments first came about because we dared to issue a complaint against SpaceX for firing eight workers” involved in organizing, Abruzzo said, and such other malignant behemoths as Amazon quickly piled on. Despite the Board’s budget constraints, she vowed, “we’re not going to postpone any of our work. There’s no way we’ll succumb to these pressures.”
In the discussion that followed, Diana Reddy, a law professor at UC Berkeley, provided an explanation for why the right and a segment of corporate America has taken arms against what it terms “the administrative state”—the agencies, many of which were established during the New Deal, which are intended to protect Americans’ rights against corporate power. Reddy quoted one conservative law scholar who recently opined, “Administrative law is supposed to be boring. Now, it’s not.”
That it’s not—that the Federal Trade Commission and the Justice Department are now resurrecting antitrust enforcement and the NLRB is strengthening the previously negligible penalties for illegally violating workers’ rights—is the consequence of the Biden administration’s break with the policies of neoliberal deregulation that had shaped every previous administration (including those of Democratic Presidents Carter, Clinton, and Obama) since 1977. Biden’s progressivism, in turn, has been shaped by large portions of the public awakening to the huge rise in economic inequality over the past half-century. Just how huge that rise has been was made clear at the Middle-Out Economics conference yesterday by the all-too-rare empirically oriented capitalist who coined that term, Nick Hanauer. Citing a 2020 RAND study he commissioned, Hanauer noted that had the distribution of income that prevailed in three decades following World War II continued through 2018, the median yearly income of the bottom 90 percent of Americans would have doubled from close to $50,000 to close to $100,000.
One consequence of Americans’ growing understanding of just how tilted the economy has become is their rising support for unions, which is now at the highest level it’s been in 60 years. That support is one reason why the Musks and Bezoses fear they’re not likely to prevail in the court of public opinion, and are turning to a different court, whose right-wing justices have already shown themselves, in Dobbs, willing and able to strike down long-settled law. If there’s one thing Sam Alito hates as much as women’s fundamental rights, it’s surely workers’ fundamental rights, though how willing his colleagues are to continuing ripping up America’s social contracts remains to be seen.
Then again, as Reddy noted, most American corporations were just as fiercely opposed to the National Labor Relations Act when it was signed into law in 1935, and it was only following the Court’s 5-4 decision upholding it that came two years later that they learned to live with it. That reluctant acceptance, Reddy said, was due in part to the huge burst of worker organizing that followed the law’s passage but preceded the Court’s ruling, which included the historic sit-down strikes that swept workplaces in early 1937, and the massive organizing drives of the CIO. What unions and workers were doing on the ground, and the support they enjoyed from the public, clearly had an effect both on the Court and on corporate America. (So did FDR’s unrealized threat to pack the Court with more justices.)
With Musk and Bezos now imploring Alito et al. to do their bidding, today’s unions need to do what the CIO was doing when the NLRA was first coming before the Court: organizing, rousing today’s pro-union supporters, following (as they did in 1937) the lead of the United Auto Workers, which in that year began the unionization of mass production industries as the constitutionality of the NLRA was then under consideration, and which today may be on the verge of unionizing mass production industry in the historically non-union South. Were this to happen, the hour of Middle-Out Economics may yet come again.
