Originally published in The Intercept on January 21, 2018.
The American labor movement, over the past four decades, has had two golden opportunities to shift the balance of power between workers and bosses — first in 1978, with unified Democratic control of Washington, and again in 2009. Both times, the unions came close and fell short, leading, in no small part, to the precarious situation labor finds itself in today.
Just over 10 percent of workers are unionized, down from 35 percent in the mid 1950s. Potentially, though, a wave of Democratic victories in 2018 and 2020 could give labor groups one last chance to turn things around. With an eye toward that moment, labor’s leading strategists are coming together to build a program that avoids the mistakes of the last two rounds.
Strike One: 1978
The National Labor Relations Act — a foundational law that guarantees the rights of private sector employees to unionize — was passed in 1935, and more than 40 years later, President Jimmy Carter, urged on by the AFL-CIO, came out in support of federal labor law reform. “The purpose of this [proposed] legislation is to make the laws which govern labor-management relations work more efficiently, quickly, and equitably and to ensure that our labor laws fulfill the promise made to employees and employers,” Carter said at the time.
The law would have addressed a number of issues that still remain on labor’s agenda today, such as faster union elections and tougher penalties for employers who refuse to bargain and violate labor law. “We didn’t try for revolutionary things; we pushed for things we thought we could get broad support for,” said Ray Marshall, who had served as labor secretary in the Carter administration. But with 59 votes in the Senate, a 44-year-old freshman Republican from Utah, Orrin Hatch, had filibustered the law, and it failed.
One of the revolutionary things the administration did not try for was the Humphrey-Hawkins Full Employment bill, which guaranteed a federal job to anybody who wanted one. It represented the height of labor’s aspirations coming out of the Great Society and what liberals (at least the ones who had not turned toward the free market as the answer) saw as one of the final legs of the stool. Carter was having none of it, and a much-weakened version went through instead. Anger at Carter’s inability to deliver for labor led many unions to back the primary challenge launched by Sen. Ted Kennedy, D-Mass. Despite Carter’s reputation as a progressive and the good work he has done since leaving office, his presidency is not remembered fondly in many union households.
Strike Two: 2009
The labor movement had another rare opportunity in 2009. Barack Obama had won the presidency, and Democrats not only took over Congress, but also seized an unexpected 60-vote, filibuster-proof majority in the Senate. Labor wasted no time vocalizing its demand for the passage of the Employer Free Choice Act, a law known as EFCA that would have given workers the right to join a union as soon as a majority of employees signed cards in support of the move. The legislation also would have stiffened penalties on employers who violated labor laws and forced recalcitrant employers to negotiate contracts with new unions.
The unifying idea behind these three reforms was that policies were needed to make it easier for workers to form unions and bargain contracts once they did. Research at the time showed a steep rise in the illegal firings of pro-union workers in the 2000s, and the National Labor Relations Board election process — to certify or decertify a union as a unit’s bargaining representative — was widely seen as tilted toward anti-union employers. Even when workers did vote for union representation through NLRB elections, many employers then refused to bargain, with only 38 percent of unions securing a contract within a year of certification.
Unions started discussions around EFCA in 2003, when Republicans controlled Congress and the White House. In 2007, Kennedy and Reps. George Miller, D-Calif., and Peter King, R-N.Y., introduced the bill, which passed in the House 241-185 — including 13 votes from Republicans. Though EFCA also had majority support in the Senate, it was blocked by a Republican filibuster.
So when Democrats took control in 2008, with a filibuster-proof majority to boot, the prospect of EFCA’s passage was tantalizing.
In 2009, progressives believed the odds were in their favor — all it would take was getting the votes of all 59 Democrats and independents, and hanging on to Arlen Specter, the Republican senator from Pennsylvania who co-sponsored the 2007 bill. Unions predicted they could add at least 5 million members to their rolls in just a few years if EFCA were to pass.
The business community hated EFCA, correctly recognizing that it would have shifted power relations between workers and employers. “This will be Armageddon,” the vice president for labor policy at the Chamber of Commerce complained. Before his inauguration, Obama told the Washington Post he knew the business community saw EFCA as “the devil incarnate.”
But the politics ended up being far more treacherous than labor anticipated — or perhaps more than the movement allowed itself to see.
“We never had 60 votes for EFCA, we just didn’t,” said Sharon Block, who worked as senior labor counsel for Kennedy on the Senate committee on Health, Education Labor, and Pensions in 2008. “We didn’t have all the Dems, even though we were closer than we had been before.”
Though EFCA tackled several areas, the provision that remains most memorable is “card check,” which would have allowed workers to form a union once a majority signed pro-union cards. (Labor organizers prefer the term “majority sign-up,” but card check is what stuck.)
The proposal was deeply controversial, in part because unions found it tough to explain why they were discouraging NLRB elections, in which workers could vote by secret ballot. Suddenly, Democrats and unions found themselves on the defensive, pushing back against arguments that they were anti-democratic. EFCA opponents argued they were merely trying to protect workers from coercive employee pressure — a talking point that resonated even as they expressed no similar concern regarding the similar, well-documented pressure coming from employers.
“There was a lot of not terribly sexy, but good reforms in EFCA to shape public opinion along the lines of fairness and stopping intimidation, but instead the conversation was about fattening the coffers of union bosses through anti-democratic methods, that unions don’t want you to have the right to vote,” recalled Louis Nayman, who worked then as a director of organization at the American Federation of Teachers. “Opponents even got George McGovern, the darling of the left, to do a 60-second anti-EFCA ad paid for by [anti-union activist] Rick Berman.”
Labor leaders still disagree about the reasons for EFCA’s failure.
Some say it’s the fault of moderate Democrats — like former Sen. Blanche Lincoln from Arkansas — who said she’d only vote for the bill if the card check provision was removed. (Lincoln lost her re-election bid to a Republican in 2010.)
Others blame Obama for not prioritizing the legislation, instead putting his energies and political capital behind health care reform.
And some say it had to do with a weak ground game from the labor movement and progressives, who never really mobilized the public enough to hold Congress and the president accountable. “There was this ‘Hey we just got you elected and now you owe us’ way of thinking about the world,” said Ken Jacobs, chair of the Labor Center at the University of California, Berkeley. “Obama at some point said, ‘You’ll have to make me do it,’ and that was not taken seriously to the degree it needed to be. To do something that will significantly shift power relations in the U.S. cannot be done quietly as a negotiated deal, it cannot happen without a loud clamor for it. It needs to be big enough and presented in ways people can understand.”
Block, the former lawyer to Kennedy in the Senate, doesn’t think Obama’s lackluster advocacy really made much of a difference. In fact, she said, some version of EFCA probably would have gotten through, but the final blow came when Senate Democrats lost 60 votes following Kennedy’s death. When the Massachusetts Democrat died of brain cancer in August 2009, he was succeeded by Republican Sen. Scott Brown, and the filibuster majority was no more, and EFCA never came up for a vote again.
The cost of losing EFCA was devastating, said Block. “We had put all of our eggs in that legislative basket and we didn’t win. And we really haven’t seen fundamental labor law reform since then.”
Carrie Gleason, who directs the Fair Workweek Initiative at the Center for Popular Democracy, said EFCA would have generated momentum to do even more, but after it failed, “the labor movement lost steam on a broader agenda.”
Though it was unsuccessful, Nayman, who is now retired, thinks the movement to pass EFCA alarmed and energized mainstream Republicans, who were suddenly fearful that unions might dramatically boost their membership, thereby increasing Democratic power throughout the United States.
“Right-wing funders capitalized on that and said, ‘Let’s never be put in this position again, let’s go after their money,’” said Nayman, who draws links between EFCA’s failure and Wisconsin Gov. Scott Walker’s subsequent rise to power, which came in part as a result of his focus on weakening public sector unions. “When you aim to shoot the king, you better kill him, and with EFCA that didn’t happen,” Nayman said. “Every action has a reaction.”
“During the EFCA fight, I think there was a lot more energy on the business side, it felt like there were more people being brought in to canvass against it than there was union rank-and-file being brought to pressure Congress,” reflected Lawrence Mishel, who led the Economic Policy Institute, a pro-labor think tank in D.C., for decades until his retirement in December.
One consequence of failing to pass anything major on the federal level was a shift to state and local labor organizing — turning to city councils, legislatures, and ballot initiatives. The Fight for $15, for example, took off in 2012 and over the next five years, led to a wave of successful efforts to raise the minimum wage, pass fair scheduling bills, paid sick days, and paid family leave.
“A lot of us looked at the Fight for $15 in the beginning and thought they were out of their minds,” said Jacobs. “But they ended up changing the whole debate, in part by going out with clear, bold demands everyone could understand.”
But one result of all those local gains has been a push by Republicans in states to pass “preemption” laws, which prohibit local governments from passing laws on certain issues, effectively blocking cities from passing progressive legislation. “We’ve made tremendous gains, but with Republicans pushing for national preemption, everything is at risk if we don’t organize and build power in Congress,” said Gleason.
A Better Deal and Beyond
In 2017, a group of prominent congressional Democrats, including Senate Democratic Leader Charles Schumer and House Democratic Leader Nancy Pelosi, unveiled a package of labor reforms, under the banner “A Better Deal for American Workers.” The package includes ideas to strengthen the right to strike (by banning the permanent replacement of striking workers), push for mechanisms to ensure employers negotiate a first contract with unions (similar to what was proposed in EFCA), and ban so-called right-to-work laws, which have allowed workers to shirk paying fees to unions that represent them.
Mishel, the recently retired economist, called the Better Deal ideas “seriously bold” and Jacobs of UC Berkeley agreed, adding that the proposals seem to reflect “a much deeper understanding” among Democratic leadership and Democratic thinkers of what ultimately needs to be done. (Card check is notably not included in the list of Better Deal proposals.)
Also on the table is a bill called the Workplace Action for a Growing Economy Act, backed by the labor federation AFL-CIO. The WAGE Act would make it easier for workers to organize, stiffen penalties against employers who violate labor law, and give workers the right to file discrimination lawsuits if they’re punished for union activity.
At AFL-CIO’s convention in October, the union passed a resolution pledging to protect workers’ right to organize, heighten employer penalties, make negotiating first contracts easier, and protect immigrant workers from exploitation and retaliation.
Damon Silvers, director of policy and special counsel at AFL-CIO, told The Intercept that the group’s immediate strategy is to focus on those four planks and push for the WAGE Act, ultimately launching a longer-term conversation about what more fundamental change is needed.
The looming question is whether these ideas are enough to confront the challenges faced by working people in 2018. Most labor experts agree that if these proposals had passed back in 1978, when Hatch famously filibustered attempts at reform, economic inequality could look very different today. But what about now?
Larry Cohen, Our Revolution board chair and former president of the Communications Workers of America, said labor should aim higher, since no Republican would vote for any of the Better Deal ideas anyway. “If our frame is collective bargaining, how does that look in the rest of the world, and why do we come up short?” Cohen asked, noting that it’s much harder to bargain collectively in the United States compared to many other democratic countries. “Everyone lectures us about the global economy, and we need to lecture back,” he said.
In the meantime, labor is sliding backward. The Supreme Court will issue a decision later this year that could severely weaken public sector unions, and President Donald Trump’s National Labor Relations Board is doing its very best to overturn critical pro-worker decisions issued during the Obama era. And, because the basic structure of the National Labor Relations Act hasn’t changed much since it was first established in 1935, employers have had decades to develop new legal strategies to weaken the law; their strategies include forced arbitration and misclassifying workers as independent contractors.
A number of creative proposals have been floated recently — and might attract attention from progressive legislators looking for ways to stand out in a competitive 2020 primary.
Among these ideas include a push to end at-will firing, and a call for workers to demand their rights be treated as constitutional rights. “I think this frame is very helpful to talk about the core of what it means to have more of a say at your job,” said Gleason. “The right to free speech at work, the idea that your employer can’t just fire you because they don’t like you or because you spoke up about your beliefs. … I think people in America don’t really realize how powerless they are at their jobs until it’s too late.”
Other ideas include exploring so-called sectoral labor standards — where workers across entire industries, such as all finance workers or all retail workers, bargain collectively. Sectoral bargaining has been an important lever for workers in countries like France, Germany, and Brazil. Right now in the United States, workers collectively bargain with their individual employers, but sectoral bargaining would mean negotiations could take place industry-wide.
“If there’s anything we’ve learned from the Fight for $15 and a union is that the need for real transformative demands are important,” said Sarita Gupta, executive director of Jobs With Justice. “People want demands that are worth the risk.” Gupta’s group is exploring proposals like the idea of universal family care and “co-enforcement,” under which community-based organizations would partner with workers to help enforce progressive labor laws.
Jacobs said pushing for joint-employer liability, meaning pushing legislators to end corporations’ ability to shirk legal responsibility through franchising, also needs to be on the table. While the NLRB under Obama started to address this issue through a critical decision issued in 2015, the NLRB reversed the ruling last month, making it once again extremely difficult to hold corporations liable.
Nayman hopes to see a greater willingness among progressives to reach out to moderate Democrats on labor reform. “I would not start my conversation with Bernie Sanders or Sherrod Brown, I would start with the Blue Dogs, because you’re going to need them too,” he said. “Rather than treating moderates as enemies and sellouts, recognize that we’ll need them on board for this.”
“The lesson [from EFCA] is you don’t wait until the wave hits, you begin to work when times look tough,” added Bill Samuel, director of government affairs at AFL-CIO. “So we’ll begin drafting and introducing legislation, which we’ve done in terms of the WAGE Act, and we’re going to work on getting support from members and candidates.”
Unions should precondition endorsements for candidates on a commitment to support the WAGE Act, he added. “The lesson is get to work, regardless of the political environment you’re in, build support, awareness, and be ready.”