Labor Renewal In the Absence of Labor Law Reform

Photo: Jay Mallin for the AFL-CIO

This piece is the third in a month-long blog series that celebrates Labor History Month and examines how the labor movement’s past struggles and victories can inform the present fight for workers’ rights.

For years, labor law professors and union lawyers have argued about what the labor movement must do to grow. Because every problem looks like a nail if you have a hammer, those arguments have largely focused on the need for labor law reform.

The current moment calls into question the assumption underlying those arguments. Today’s labor movement has momentum, optimism, and – hopefully soon – will experience significant growth.  Yet, labor law reform remains a dream deferred.

What gives?

Workers are on the move even though the law remains broken. Figuring out why may offer insight into the labor movement’s path forward.

One thing that is clear is that many workers really, really want to form a union. And these workers appear to be less afraid to take risks to do so.  That may be because unemployment is so low that workers know they have other options if, as so often happens, their employer fires them for organizing.

There is almost certainly something generational going on as well. It’s been a long time since so many young people have been this excited about forming unions, as Teen Vogue’s labor beat writer – I’ll repeat that, Teen Vogue’s labor beat writer – has explained. And, many young people – including increasing numbers of women and workers of color – are choosing to pursue union apprenticeships in the building trades as an economically-secure and personally-fulfilling career path.

Some employers, on the other hand, may feel stuck between a rock and a hard place, and that feeling may make worker organizing a smidgen easier. It’s a bit harder to fire an employee for being a union activist when your business is already short-staffed and you know you can’t realistically expect to hire a replacement any time soon. Or to run a vigorous anti-union campaign when it’s obvious your employees are already feeling squeezed and that subjecting them to repeated captive audience meetings and one-on-one anti-union pressure sessions with their supervisors will only make morale worse.

Then there’s the influence of the federal government. There are two distinct aspects of what the current administration is doing in the economy that are making a real difference for workers who want to form a union, although there is even more the administration can do.

The first is the part that you hear a lot about. Joe Biden is the most pro-union President in our lifetime. Like Franklin D. Roosevelt, who famously declared, “If I went to work in a factory, the first thing I’d do is join a union,” Biden spoke out in favor of workers organizing at the Amazon warehouse in Bessemer, Alabama.  And he has appointed leaders of federal labor agencies – like former-Secretary of Labor Marty Walsh, current Acting Secretary Julie Su, and NLRB General Counsel Jennifer Abruzzo – who appear to be doing everything in their power to even the playing field for workers and unions.

That’s all true. But a dirty little secret of the deep state is that there is only so much that these labor agencies can do through the regulatory process to move the needle for workers and their unions absent statutory change, even if the leaders of these labor agencies really, really want to help through vigorous enforcement of existing laws.

The part you don’t hear much about – but that matters a great deal – is what other agencies of the federal government are doing through their implementation of laws like the bipartisan Infrastructure Investment and Jobs Act (IIJA), the CHIPS and Science Act (CHIPS), and the Inflation Reduction Act (IRA). With names like these, you’d certainly be excused for thinking these statutes don’t have much to do with workers forming unions.  But the truth is, taken together, the IIJA, CHIPS, and the IRA provide significant opportunities for large-scale union growth.

The reason is two-fold.

First, and most importantly, these laws will inject more than $2.3 trillion into the economy and should create several million new jobs in the United States over a relatively short period of time, with a significant percentage of the new jobs in construction and manufacturing.  Indeed, some are calling this the United States’ first industrial policy in a generation. The laws contemplate a transformation of the U.S. economy, standing up entirely new industries in significant, future growth sectors such as semiconductor production and solar panel manufacturing.

All of this is happening at a time of record low unemployment and, in addition, many of these jobs require occupation-specific training. So, employers have to compete for the available skilled and trained workers they need to undertake these often massive projects and, as we have described, that tends to make workers a little more willing to take the risks associated with forming a union.

Secondly, the federal government has recognized – correctly, I might add – that if it is going to invest significant taxpayer money in creating entirely new industrial sectors in the United States, it ought to do so in a manner that results in an economy of the sort that people want to work and live in, e.g., safe jobs with middle-class wages and benefits, a concerted effort to address the historic racial and gender inequalities that plague our labor markets, training opportunities so that local residents have a fair shot at obtaining work near where they live, and special consideration for communities historically burdened by pollution.

To see why this matters so much, one need look no further than auto manufacturer Hyundai for an example of what will happen if federal investment is made without a proper accounting for community impacts.

Late last year, Hyundai Motor Company and its sister Kia Corporation entered into settlement negotiations with the U.S. Department of Labor over allegations that company suppliers, including Hyundai subsidiaries, were employing children as young as twelve in manufacturing jobs in violation of federal and state law. Yet, at the same time, Hyundai is in the process of building a huge new  $5.5 billion electric vehicle and battery “Metaplant” in Georgia, presumably to take advantage of generous IRA tax credits that are available only for those EV vehicles that are assembled in North America.

It is obviously illogical for one arm of government to hand out generous financial subsidies to an employer while a sister federal agency investigates the company for serious labor violations. Not only does such an approach subsidize the company’s lawbreaking, it also undercuts the many responsible employers who abide by our nation’s labor laws and compete with Hyundai for federal support. The Biden Administration’s commitment to ensuring that the jobs created by the IIJA, CHIPS, and IRA are good jobs thus makes good practical sense.

It is for this reason that the AFL-CIO has repeatedly urged the Biden Administration and the agencies charged with administering these statutes to take additional steps when issuing rules and guidance implementing the IIJA, CHIPS, and IRA to ensure that law-breaking employers do not receive federal funds and to put clear incentives into place to encourage employers to take the high road of respecting their employees’ right to form a union without interference.

Workers’ recent victory in forming a union with the United Steelworkers at the Blue Bird bus manufacturing plant in central Georgia illustrates why policies of this sort are so important. Workers at the Blue Bird plant assemble electric school buses.  Construction of those buses are subsidized both directly, through $40 million in rebates issued to the company by the Environmental Protection Agency, and indirectly, through $5 billion in the IIJA that incentivizes school districts nationwide to replace their existing diesel buses with low- or no-emission vehicles like the ones Blue Bird’s workers produce.

When national and state elected leaders asked Blue Bird to respect its workers’ federally-protected right to form a union without company interference, that effort made a difference. On May 12, workers voted 697 to 435 to form their union with the Steelworkers. And the company, unlike Amazon and Starbucks, who have tied-up worker organizing victories in legal challenges for months or even years, did not challenge the workers’ victory. That’s how federal investment can help build an economy that works for workers, business, and the community.

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Of course, with a casebook as my hammer, I can’t help but emphasize that labor law really does still matter, even if historic victories like Blue Bird demonstrate that it is not the only thing that matters.

Indeed, labor law may matter most at the state level, where a right-wing governor and legislature can eliminate public sector workers’ longstanding collective bargaining rights in one fell swoop. For example, Florida recently enacted anti-union SB 256. Among many other unabashedly union-busting provisions, that Ayn Rand-inspired statute requires unions – private voluntary organizations – to include specific language in their membership forms stating that “Florida is a right-to-work state” and that “union membership and payment of union dues and assessments are voluntary.” That’s like the state requiring the AARP to include unnecessary language in its membership application saying that “even though you are 50, AARP membership remains voluntary and is not required by Florida law.” Talk about woke indoctrination by the government!

On the federal level, the need for labor law reform of course remains painfully obvious. Starbucks, for example, appears to have simply refused to bargain with its employees at the 144 stores around the nation where workers have organized and there is little the NLRB can do to effectively counter the company’s intransigence. Starbucks presumably calculates that, since there is no economic penalty for an employer’s refusal to bargain with a certified union, it makes economic sense to drag its feet. If the Protecting the Right to Organize (PRO) Act were enacted, the NLRB would have many more tools available to convince Starbucks to quickly comply with its obligation to bargain with its workers.

But the takeaway is that workers aren’t waiting for labor law reform – and shouldn’t wait – to forge ahead and form unions. While workers certainly should care about what Congress and the Supreme Court does – not the least because of what the Court might soon say about the right to strike in its forthcoming decision in Glacier Northwest v. International Brotherhood of Teamsters – they will not let a conservative House of Representatives or Supreme Court stop them from organizing at their own workplaces. That organizing, and the rebuilding of worker power and voice in our economy and politics that will follow, is the necessary precondition to enacting the PRO Act and achieving a Supreme Court majority that reflects the interests of working people.

Matt Ginsburg is General Counsel of the AFL-CIO.

Collective Bargaining, Workers’ Rights