Unionizing is not against the law; but the law is against unionizing.

By Mark Kreidler, Capital & Main

This story is produced by the award-winning journalism nonprofit Capital & Main and co-published here with permission.

The past 18 months have been marked by loud labor organizing efforts — and opposition — at several massive corporate enterprises, including Starbucks and Amazon. Public approval of unions, meanwhile, is up to 71%, the highest level since 1965, according to a Gallup poll from August 2022. Yet according to the federal Bureau of Labor Statistics, the union membership rate of 10.1% last year was the lowest since records were kept, dating to 1983.

There’s certainly no single reason for those seemingly contradictory sets of statistics. But there is a main culprit: the country’s wildly outdated labor laws.

The current rules aren’t merely weak-kneed or incomplete; they’re tilted significantly in favor of employers. From restricting the right to organize to minimizing penalties for employers who break the laws, the legal deck is stacked against workers. And considering how long many of those rules have been on the books, they are well past due for an overhaul.

So what would meaningful reform look like?

The experts consulted by Capital & Main all came at that question from different angles. But on one point they were unified: Unless labor law is rewritten to make it easier for workers to organize in the first place, nothing else will matter much.

“The bottom line is that the labor movement is in the midst of a resurgence of both public support and activism,” said Peter Dreier, an Occidental College professor and the author of several books on public policy and labor history. “For that to translate to increased union membership, federal labor laws will have to change.”

It’s incredibly difficult to form a union under current U.S. labor laws. First, a company like Starbucks cannot be unionized nationally, as entire industries can in many European countries. Instead, union votes have to be won in worksites individually. The coffee chain has more than 16,000 locations across the United States.

In California alone, it would take more than 3,000 separate votes to successfully unionize the state’s Starbucks locations. That’s a tall order considering that labor law allows employers to ban most union talk at work but gives them the right to issue anti-union messages almost constantly.

“The easiest thing to change about the labor law is to make it easier to form a union,” said Michelle Kaminski, a professor at Michigan State’s School of Human Resources and Labor Relations. “As our technology changes and certain industries grow, it’s not that people in the new industries don’t want unions. It’s that it is so very hard to form one.”

Current labor law also restricts who can form a union. Among the groups lacking a federal right to organize are domestic workers, agricultural workers and independent contractors (like Uber drivers). That’s a runaway win for corporations that want to stymie union activity in such large employment swaths — and it works against the people of color and women who fill so many of those jobs.

“If you look at the reasons why domestic workers and agricultural workers were excluded from the National Labor Relations Act, it is absolutely shameful that those exclusions still exist,” said Sharon Block, a professor and the executive director of the Center for Labor and a Just Economy at Harvard Law School. “They were based on racist reasons — not even subtly, almost explicitly.”

That exposes another issue. The NLRA was signed into law in 1935, and aside from the Taft-Hartley Act of 1947, which pushed back on certain union activity and was enacted by a Republican Congress over President Harry S. Truman’s veto, it has never been amended. Most basic federal labor law is nearly 90 years old.

“We have a very different economy, a different mix of manufacturing and service, urban and rural — almost every way you’d imagine — since the 1930s,” Block said. “They had big factories where everybody passed through the same door, spent eight hours together. They could talk; they could organize themselves. Now you have workers who never see their co-workers. It’s just completely different, and we’ve made no forward progress in thinking about ways to better empower workers since then.”

One significant remnant of the 1935 creation of the NLRA: the remedies for breaking labor law, which are largely toothless. Both corporate and smaller employers have long known that the penalties don’t actually discourage such activity among those inclined to try to prevent unionization or ignore the unions once they’re formed.

If a store or company fires a worker for union activity and that can be proved, it’s a violation of the law. But experts say the proving process can drag out for six months or a year — and even if found in violation, the employer will only be ordered to reinstate the worker with back pay. In the meantime, a chilling message has been sent about what happens to workers who try to organize a union.

“The penalties are so small that businesses willfully break the law knowing that the fines they’re going to pay, if they pay any at all, are the small cost of doing business,” Dreier said.

Kaminski said any meaningful labor law reform would include a broad increase in the fines and remedies that can be levied against employers for breaking the rules — one of the few things, she said, that would catch the attention of companies that are inclined to do so.

The other basics? Block and Harvard labor law expert Benjamin Sachs lead an ongoing project, Clean Slate for Worker Power, that calls for a “fundamental redesign of labor law.” Among their tenets is that the decision to join a union should be strictly between a worker and the union. Under current law, employers can prohibit organizing talk at work, but are free to make their own mandatory “captive audience” anti-union speeches.

Clean Slate also advocates for the inclusion of the worker groups long denied the federal right to organize, and for sectoral bargaining — that is, bargaining by full industry rather than shop by shop. A common practice elsewhere in the world, sectoral bargaining would normalize wages across all the companies that operate within a single industry. “The companies then have to compete on the quality of their product, the quality of their management, rather than how good they are at wringing every last cent out of their labor force,” Block said.

Instead of the current, drawn-out election system, Kaminski favors an organizing process called card check recognition, through which a union can be formed as soon as 50% plus one of the workers sign cards saying they want one. And, she said, a labor law that imposes contracts on employers who continuously refuse to engage would jump-start any number of purposely stalled negotiations.

Democrats have rallied behind broad pro-labor legislation reform in the recent past, but none has passed. The Employee Free Choice Act failed under heavy pressure from business groups more than a decade ago, and Sen. Bernie Sanders’ Workplace Democracy Plan has faced similar blowback.

“Still, I do think something has happened in this ‘Hot Labor Summer,’” Block said. “There’s a lot of uncertainty by people about their jobs, because of the role of AI, because of climate change. You hear people saying, ‘I don’t know what it’s going to be like to work in a world that’s on fire.’

“But UPS workers just negotiated air conditioning in their trucks for the very first time, and we’re about to see the UAW negotiate on what the future of building electric vehicles is going to look like. Right now, unions are the only way that workers have a chance to get ahead of those kinds of changes — and that could, in turn, change the politics of some people who aren’t in unions but want to have a say in what happens.”

Copyright 2023 Capital & Main