John Lamparski/NurPhoto via AP
Demonstrators rally in front of Amazon CEO Jeff Bezos’s residence calling for workers’ rights and a stop to union busting, November 26, 2021, in New York.
So, 2021 was a banner year for American workers, right? Wages rising, unemployment low, the revival of the strike, unions’ approval rating at its highest level (68 percent) in 50 years, and the most pro-labor administration in American history—things looking up, no?
No. Not by a long shot.
Yesterday, the Bureau of Labor Statistics released its annual count of unionized workers, which made clear that the 70-year decline of unions—that is, of worker power—continues apace. The share of unionized American workers dropped from 10.8 percent last year to 10.3 percent this year (tying the all-time low set in 2019), and the rate among private-sector workers also hit a new rock bottom of 6.1 percent, which is about one-seventh of its level in the middle of the 20th century.
With so much apparently going workers’ way, including their record-high level of support for unions, how do we explain this continuing decline?
The paramount reason is the law. Where once the 1935 National Labor Relations Act (NLRA) ensured workers’ right to form unions and bargain collectively, the steady weakening of that law by court decisions, the 1947 Taft-Hartley Act, and decades of congressional inaction to bolster it have poked so many holes in that law that now, far from ensuring workers’ rights, it exposes workers seeking a union to existential risks—most particularly, to being fired if they raise a peep about forming a union. Last year’s failed organizing drive at Amazon’s Bessemer, Alabama, warehouse, during which the company thoroughly intimidated its workers into rejecting the union, typifies the leeway management has to violate the terms of the NLRA without facing significant penalties. And when it comes to the behavior of “socially conscious” management, it’s hard to find any private-sector management that will countenance the partial sharing of power with its workers that unions bring. The determination of Starbucks founder Howard Schultz to keep his baristas from joining a union is Exhibit Z in the long string of “liberal” capitalists who don’t believe their employees can be entrusted with even a modicum of power.
Even as employment roared back from its pandemic lows last year, the actual number of workers in unions fell by 241,000.
It gets worse: Even as employment roared back from its pandemic lows last year, the actual number of workers in unions fell by 241,000. And even as major manufacturers are under pressure to begin making their products in America again, a disproportionate share of the new factories they’ve promised to build are to be located in the South, where the pre–Emancipation Proclamation opposition to paying for labor has never fully gone away. Once again, the states with the lowest levels of unionization are South Carolina (1.7 percent) and North Carolina (2.5 percent).
The only category of workers whose support for unions hasn’t been thwarted by fear of firing in the past year has been professionals who can’t be easily replaced. In the past couple of years, workers at media outlets, think tanks, museums, and universities have managed to win union status. In worksites staffed predominantly by millennials and Gen Zers, among whom support for unions hovers near 80 percent, some modest unionization efforts have prevailed—most notably, at some Starbucks outlets in Buffalo. Should such efforts begin to swell, however, the union-busting tactics that Amazon used may well be put into play by employers like Starbucks, too.
If any mystery attends the record levels of workers quitting their jobs in recent months, yesterday’s numbers on union membership should dispel it. When just 6 percent of private-sector workers have a voice on the job, the other voiceless 94 percent have little recourse but to exit if they don’t like what their employer is up to.
Earlier this year, the Biden administration and congressional Democrats introduced a bill—the PRO Act—that would have plugged almost every hole that has turned the NLRA into a slice of Swiss cheese. But as getting that bill through the Senate is impossible so long as the filibuster enables the Republicans to block it (not surprisingly, all 50 Republicans oppose it), the PRO Act, like much else, has been doomed by Sens. Manchin and Sinema’s insistence that the filibuster is the core principle of American democracy. One particular of the PRO Act—increasing the currently negligible fines employers must pay when they’re found in violation of the NLRA—has made it into the Build Back Better bill, but that’s hardly a guarantee that it will make it to the president’s desk.
Progressive state and local governments can help workers in many ways—in recent years, by raising their minimum wage, creating paid sick days, and the like. So can federal agencies when there’s a pro-worker president, which Joe Biden assuredly is. They can increase the wages and benefits of federal employees, expand the number of workers who qualify for overtime pay, and crack down on employers who misclassify their workers as independent contractors. But neither the state or local governments nor the federal Cabinet departments can make it easier for workers to join unions. That task is up to Congress—and just maybe (and just lately), the National Labor Relations Board.
With its new Biden-appointed majority and its new Biden-appointed general counsel (Jennifer Abruzzo), the Board is looking at such long-discarded remedies as requiring companies that violate workers’ rights in the course of defeating unionization campaigns to recognize those unions. It is also considering whether blocking unionization by misclassifying workers as independent contractors when they’re actually employees is itself a violation of the NLRA’s guarantee of workers’ rights to associate and bargain collectively. Just yesterday, a few hundred truck drivers who work for XPO Logistics at the Port of Los Angeles filed a case against the company—not with the state (which has already ruled that XPO misclassified them as independent contractors when they’re really employees, for which XPO has agreed to pay those drivers $30 million), but with the NLRB, claiming that their misclassification violates the NLRA. In effect, they’re asking the NLRB to rule that they can form a union, a course of action not available to workers who actually are independent contractors, not just mislabeled employees. Should they prevail, the number of misclassified workers who could unionize—potentially including the drivers at companies like Uber and Lyft—could be well into the millions.
Of course, none of this means that the union-hating right-wingers on the Supreme Court would stand for this, or that corporations still wouldn’t bend heaven and earth to squelch worker power. For now, though, anyone hoping that this year’s union numbers will look better than last year’s should keep an eye on the NLRB.
