Paul Sancya/AP Photo
United Auto Workers members walk the picket line at the Ford Michigan Assembly Plant in Wayne, Michigan, September 2023.
During the next four years, the gap between public support for unions and governmental policy toward unions will almost surely have to be measured in light-years. The public’s approval rating for unions, which September’s Gallup poll put at 70 percent, is the highest it’s been in nearly 70 years. The policies of the incoming Trump administration, abetted by an anti-union Supreme Court, appear poised to crush what vestiges of worker power still stubbornly persist. (To be sure, Trump’s nomination last Friday night of outgoing Republican Rep. Lori Chavez-DeRemer as his secretary of labor would put a genuine unicorn—a pro-union Republican—atop the Labor Department, but if confirmed, she would be, to put it gently, swimming upstream against Republicans’ and Trump’s anti-labor tsunami.)
The most direct threat to unions comes from Trump’s self-anointed “first buddy,” Elon Musk, and his fellow centi-billionaire, Jeff Bezos. Musk’s SpaceX and Bezos’s Amazon have filed cases in the far-right Fifth Circuit challenging the constitutionality of the National Labor Relations Board’s adjudication of labor disputes, in which administrative judges rule on cases brought by management and labor. The rather massive irony here is not only that the Board frequently rules for employers but that even when it assesses penalties on employers, labor law—which was already weak by European standards—has been so eroded over the decades that those penalties are negligible.
Due to the heroic efforts of Biden’s appointees to the Board, some of those penalties have been upgraded from effectively nonexistent to measurable but still avoidable. Under certain conditions, companies that are recidivist labor law violators may now be ordered into bargaining with their workers, but they’re under no obligation to reach a contract. When workers are fired illegally during union organizing campaigns, companies found guilty now not only have to give them their back pay, but also recompense them for expenses like doctors’ bills that their health insurance would have covered if they’d not been illegally discharged. Still, that is pennies compared to what companies might have to pay if their workers won a union and received a fair share of the corporate surplus.
Because the penalties for management lawbreaking are still so inadequate, it’s been labor advocates who’ve been calling for changing labor law for the past several decades. As they’ve never succeeded in passing a bill that substantially restores workers’ rights to collective bargaining (labor law reform bills in 1965, 1979, 1994, and 2010 never could clear the Senate’s self-imposed 60-vote filibuster hurdle), it’s chiefly been labor’s champions who’ve provided most of the critiques of existing labor law. And they’re surely right that the law’s inadequacy in protecting workers who seek to unionize is a primary reason why the share of unionized private-sector workers has declined over the past 70 years from more than a third of the workforce to a bare 6 percent.
What, then, is the NLRB doing that is inflicting “irreparable harm” to SpaceX and Amazon, as their legal briefs contend? And how is it that a law passed in 1935 and upheld by the Supreme Court in 1937 is only now—at a time when employer domination of over 94 percent of the private-sector workforce is nearly absolute—a threat to the sovereignty of American business, which somehow managed to get by even when the rate of unionization was six times higher than it is today?
Today, unions have the financial wherewithal to embark on far more ambitious organizing campaigns than they have in many decades.
Three factors, I suspect, have led us to this point. The first is the autocratic instincts of Musk, Bezos, and Donald Trump. The incoming president has been reported to be considering firing the Democratic members on the NLRB’s five-member board, though those members have fixed terms that don’t coincide with presidential terms, and though no president of either party has ever considered sacking Board members at his will (or, in Trump’s case, whim). As for Musk and Bezos, with great wealth apparently comes even greater irritation at having to share so much as a smidgen of power.
The second factor is that while the Republican Party exists at the sufferance of capital, which provides the lion’s share of its election funding, it fears and loathes organized labor for its provision of funds and bodies to Democratic candidates.
The third factor is that President Biden, in this case absolutely reflecting rather than flouting public opinion, was the most pro-union president in our history, and his appointees to both the Department of Labor and the NLRB sought to help and empower workers more than any Democratic administration since Lyndon Johnson’s or perhaps even Franklin Roosevelt’s.
Put these three factors together, and what unions may be facing are court rulings that leave the NLRB with no power to enforce workers’ rights and, even if the courts don’t rule that way, an administration that turns the agency over to management-side lawyers and defunds the Board’s field operations that investigate workers’ allegations.
But that doesn’t have to be the death knell for American workers.
As Chris Bohner and Eric Blanc have noted at the Radish Research Substack, upsurges in labor militance and organizing don’t invariably coincide with the terms of pro-labor governments, though control of government is still a huge factor in defining the scope and limits of worker power. The “Red for Ed” teacher strikes in such anti-union states as West Virginia and Oklahoma during Trump’s first term compelled those states to increase school funding and teacher pay despite the fact that those states had not legalized public-employee collective bargaining. More private-sector workers were unionized during the presidency of George W. Bush, Bohner and Blanc point out, than were during Barack Obama’s presidency—chiefly because unions did more organizing during the Bush years.
Today, with public support for unions at its highest level since the 1950s, unions certainly have the financial wherewithal to embark on far more ambitious organizing campaigns than they have in many decades. The most recent Department of Labor report documents that unions have $42 billion in financial assets—most of it liquid—and just $6.4 billion in debt. As former New York Times labor reporter Steve Greenhouse and I jointly wrote in 2022, labor’s reluctance to seize this moment of union popularity stands in pathetic contrast to the huge organizing initiatives that a number of unions undertook in the 1930s, when they successfully unionized a good 40 percent of America’s private-sector workforce outside the anti-union South. Even if Trump, Musk & Co. gut what’s left of the NLRB, unions still can organize and strike. Indeed, it was the strike wave of 1934 that compelled Congress to enact the National Labor Relations Act in 1935. (If the act is struck down wholesale, that would also sweep away the 1947 Taft-Hartley amendments that banned sympathy strikes, closed shops, and other aggressive tactics.)
As the Red for Ed teacher strikes of 2018 illustrated, what gives such efforts political clout is public support. Those red-state teachers made common cause with the parents of students in their states, who clearly understood their children would benefit from more school funding and higher teacher pay scales. It was these examples of what has come to be called “Bargaining for the Common Good” that compelled Republican legislators in red states to grant the teachers’ demands.
Bargaining for the Common Good now rates a chapter or two in various unions’ playbooks. A number of labor advocates released a report last week that better positioned unions to address the single greatest factor in the unaffordability of life’s essentials. The report, “Investing for the Common Good: How Workers’ Pensions Can Help Solve the Housing Crisis,” put forth a number of ways that a share of these immense storehouses of capital can be invested in new housing without compromising their fiduciary responsibilities, while employing many thousands of unionized construction workers. It enumerated a number of currently existing ways that such investments can be made, including large cities’ issuance of taxable municipal bonds for housing in which pension funds can invest. It also proposed the establishment of a cooperative asset manager serving such pension funds who could set the appropriate fiduciary standards for large-scale investments in affordable housing. Blue states and cities can help lay the groundwork for such initiatives—and it’s in blue states and cities, of course, where the lack of affordable housing is most acute.
In the past couple of years, many blue states and cities have also moved to enhance worker rights, though their ability to enact such policies can be preempted by federal law—the NLRA. Since 2023, ten such states have banned “captive audience” meetings—workplace meetings in which employers subject their workers to anti-union rants in the midst of organizing campaigns, which their workers are required to attend. Failure to attend can lead to demotion or even firing—hence the “captive” designation. Coercing attendance, those ten states decreed, violates workers’ rights to avoid speech that isn’t connected to the performance of their jobs.
If the courts and the Trump administration do indeed destroy the NLRB, they may thereby also create a space in which previously preempted states can try to preserve some basic worker rights. Abolishing a referee doesn’t mean class conflict will disappear; far from it. The states and the streets will still be there.
