With a String of Big-Win Labor Victories, Are Unions Surging Back?
School of Law experts David Webber and Michael Harper on labor’s recent gains—and the possible potholes ahead
Shrunk to 7 percent of the private US workforce from the one third they organized in their 1950s heyday, unions have been on the ropes dating back at least to 1981, when President Ronald Reagan shut down a strike by air traffic controllers. Yet workers are enjoying a year of victories that would have cheered Abraham Lincoln, who once praised “a system of labor where the laborer can strike if he wants to!”
United Auto Workers (UAW) strikes yielded pay raises and abolition of tiered wages that gave lower pay to newer hires. Tens of thousands of nurses, ER technicians, and pharmacists recently concluded their strike against Kaiser Permanente by winning 21 percent raises over the next four years. The prolonged Hollywood writers strike ended with studios granting almost three times their original pay offer. (BU’s May Commencement became a skirmish in that war, as hundreds heckled and protested speaker and Warner Bros. Discovery CEO David Zaslav [LAW’85, Hon.’23]). Meanwhile, the actors union remains on strike, although there have been reports that Hollywood studios have offered a wage increase that could be the highest in four decades.
UPS workers recently averted a strike by ratifying a five-year contract that their union hailed as “the most lucrative agreement the Teamsters have ever negotiated at UPS.” The topper: public approval of unions is at a six-decade high.
The wins thrill pro-labor advocates, who point to research showing that unionization helps offset economic inequality. The UAW is boosting unionization efforts at Tesla, a nonunion shop that pays less than the Big Three. You wouldn’t think there’d be a “yes, but …”
But storm clouds loom.
Rank-and-file autoworkers remain wary of electric vehicles (EVs), which the Big Three are curtailing amid slackening sales, portending a possible face-off with pro-environment Democrats, including President Biden. (In a major concession to the UAW, General Motors agreed to let EV battery makers join the union.) Donald Trump, the frontrunner among Republican presidential candidates, is no friend of unions, even speaking at a nonunion factory recently. And efforts to enact labor law protections for union drives are spinning in congressional mud.
We asked David H. Webber and Michael C. Harper about how labor reached this momentum, and whether they spy a drop-off ahead. Webber is a professor at the School of Law and Paul M. Suskind Scholar; Harper is Barreca Labor Relations Scholar and an emeritus professor at LAW.
This interview has been edited for clarity and brevity.
with David H. Webber and Michael C. Harper
BU Today: What’s behind this string of labor strikes and victories—why now, at this moment?
Webber: I think a large part of it is simply because many major labor unions have new leaders who are more militant than the preceding generation, who are looking to distinguish themselves from that generation. At the Teamsters, at the United Auto Workers (UAW), and elsewhere, we see new leaders taking much more aggressive stances that are paying off—with the Teamsters at UPS, with the UAW and the Big Three automakers. I also think that these leaders are responding to a new generation of workers. For decades, American workers have been squeezed on wages, on benefits, on working conditions, and they are prepared to push back.
I also think that the rise of millennials and Gen Z has been a factor. They have much more positive views of unions than prior generations do. Finally, the tight labor market has helped, giving workers more bargaining power. All these factors are interconnected and have combined to strengthen labor’s hand.
BU Today: Does the disagreement between progressive environmentalists and workers opposed to EVs portend a weakening of labor’s cause?
Webber: It could. And it could also lead to a weakening of the environmental cause.
The so-called blue-green alliance is not always a comfortable one. For example, many unions came out against the Green New Deal [proposed by US Rep. Alexandria Ocasio-Cortez (CAS’11) and Senator Ed Markey (Hon.’04), both Democrats, from New York and Massachusetts, respectively]. And there is skepticism about the “just transition,” by which workers in carbon-intensive industries are supposed to be retrained to work in green industries. I was recently speaking with a steelworker who works on oil rigs, and he told me he loved the idea of a just transition; he’s just never seen any real evidence of it. He has kids, he is worried about the future of the planet like everyone else. He also has a generous salary at his unionized workplace.
I have been pretty involved with the ESG [Environmental, Social, and Governance] responsible investment movement, and I worry about this. Worker pension funds have been at the forefront of the ESG movement—it would not exist without them—but worker concerns have often been shunted aside, even in the green community, and that is concerning. I think folks need to understand that saving the planet only for people to spend their lives working miserable jobs is not sustainable, either.
Saving the planet only for people to spend their lives working miserable jobs is not sustainable, either.
BU Today: What labor laws currently impede unionization, and how would they have to change to put more wind at labor’s back?
Harper: I would phrase this differently: what labor laws need strengthening to adequately balance the greater leverage, without the aid of law, that the providers of mobile capital have against the providers of labor, in setting the division of returns from production?
The law that needs reform, the National Labor Relations Act (NLRA), passed in 1935, effectively provided balance for several decades. But after being weakened by the 1947 Taft-Hartley [Act], it could not compensate for economic developments like the shift of production to anti-labor states; globalization and deregulation; and the concomitant political shifts that have led to continuing declines in union density in the private sector over the past half century. There needs to be a strengthening of the remedies the NLRA provides for illegal employer discrimination and threats against union supporters, especially during organizing drives. Currently, the law only expressly provides for equitable relief, rather than any fines or even full compensatory damages. Employers who fear higher labor costs from unionization rationally calculate that they can take the risk of being found intentionally discriminatory in order to fend off unionization.
In addition, the law should authorize the National Labor Relations Board to require any employer that discriminates or intimidates [workers] to bargain with unions that have presented proof of majority support before the intimidation. The NLRA also should be amended to preempt state “right-to-work” laws that undermine union finances by preventing the collection of mandatory reimbursements from employees for union bargaining and grievance processing.
More aggressive amendments could include mandatory arbitration of critical, first collective bargaining agreements with newly organized employers, and the revocation of the Taft-Hartley law’s prohibition of secondary union boycotts. [Those are boycotts of a company that does business with the company involved in the primary dispute with a union.] The latter amendment probably would result in the most significant enhancement of union bargaining leverage.
BU Today: What grade would you give President Biden and his National Labor Relations Board on their efforts to help organized labor?
Harper: Especially in light of the diminished political clout of organized labor, I consider Biden to be the most pro-union president in my lifetime—75 years.
The Protecting the Right to Organize Act of 2021, introduced as part of his extraordinarily progressive agenda before the Democrats lost their majority in the House, included all I suggested above and more. It probably contained too much to expect passage in the more conservative Senate, even with a Democratic majority. But it could have provided a basis for negotiation.
All Democratic presidents have appointed NLRB general counsels and a majority of board members favorable to unions. The general counsel appointed by Biden, Jennifer Abruzzo, has been the most aggressive and creative in advancing interpretations of the NLRA that would benefit union organization and bargaining leverage. These include reinvigorating a decades-old interpretation that empowers the board to issue bargaining orders against employers that commit unfair labor practices to stifle successful union organizational efforts. The Democratic board members have accepted this empowerment and most of Abruzzo’s other positions. We will have to see whether the courts do so as well, but if I were in the leadership of the AFL-CIO, I would give my highest marks to Abruzzo and the board, and Biden as well.
The board’s constructions of the statute have been oscillating back and forth with the change in the party in control of the White House over the past half century. Whenever any Republican is next elected president, we can expect much, if not most, of what this Board has accomplished for unions to be reversed. Legislation is required for lasting reform.