The contemporary era of labor unionism

This essay is the final installment in a series on the history of the American labor union movement. The previous entries are available here:

Creation of the labor-progressive alliance

The era of labor reform and unionism’s height

Big Labor’s decline and left turn

The dance of Sweeney and Stern

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Observers proclaimed the 2008 elections an extinction-level event for political conservatism in America and the Republican Party that served as its electoral vehicle. With President Barack Obama elected with an Electoral College majority broader than any of his 21st century counterparts, Democrats in control of Congress by wide margins, and state governments largely under Democratic control, it was hard to blame them.

Newsweek proclaimed in early 2009: “We are all socialists now.”  Democratic political consultant James Carville proclaimed that Obama’s election heralded “40 More Years” in which “Democrats will rule the next generation.” And political handicapper Stuart Rothenberg called talk that Republicans could take control of the House of Representatives in 2010 “lunacy” that “ought to be put to rest immediately.”

Standing alongside President Obama at the electoral apogee of contemporary progressivism was Big Labor, which had invested heavily in the election of the first Black president to reverse the Long Decline in union membership and influence. The Obama administration repaid its support from Big Labor: President Obama named Hilda Solis, previously a left-wing, union-friendly congresswoman from Los Angeles, Secretary of Labor. The American Recovery and Reinvestment Act (ARRA) spent hundreds of millions on projects that would largely be subject to union-rate labor requirements. The Lilly Ledbetter Fair Pay Act adopted union-promoted rules expanding the timeframe for workers to sue for sex-based pay discrimination. The rescue package for Chrysler gave preference to the financial interests of the United Auto Workers union over other creditors.

But Big Labor had two other major asks on its wish list. One was a “public option” government-run health insurance program in any Obama administration healthcare reform package, and the other was legislation to facilitate union organizing, misleadingly titled the Employee Free Choice Act (EFCA). With an overwhelming House majority, the support of President Obama, and Senate Democrats a hair’s breadth from the power to overcome a filibuster on a party-line vote, a federal boost to labor unionism looked nearly certain.

But Obama’s heyday proved to be fleeting, not four decades. Conservatives quickly regrouped, and the debate over the ARRA and the healthcare plan that would become Obamacare created the Tea Party activist movement. Big Labor never got EFCA through the Senate, failing to secure the support of Democratic Senators like Arlen Specter (D-PA) and Blanche Lincoln (D-AR).

The “public option” died conclusively when Republican Scott Brown defeated then-Massachusetts Attorney General Martha Coakley in a special election to replace the late Sen. Edward Kennedy (D-MA). “Scott Brown Forty-One” forced Democrats in Congress to adopt legislation without a public option that had passed the Senate before Brown’s election.

Sen. Brown’s election proved a portent. The 2010 midterms brought Republicans back to control of the House of Representatives and to control of numerous state governments. The latter proved consequential for labor unions that had relied on a steady stream of state workers and state government stratagems such as the SEIU’s “dues skim” to build up membership and dues and fees revenues.

Big Labor would look upon the Obama years as a missed opportunity. After the interregnum of the first administration of Donald Trump, which largely followed Republicans’ historical Taft-Hartley consensus approach to labor relations, the Biden administration offered a “whole of government” approach to supporting union organizing. But that too would fail to reverse a decades-long trend dependent more on economic trends than policy frameworks.

Rather than moderating politically or focusing on member deliverables, Big Labor responded to its Long Decline with more political activity focused on impressing unwilling members into what was once called the “labor movement.” The results, 138 years after the formation of the American Federation of Labor, have seen unionism only decline further.

Ending the secret ballot

The law would have compelled recognition and bargaining upon the presentation of union authorization cards signed by a majority of the workers in a proposed bargaining unit, essentially overriding the provision for NLRB-supervised secret-ballot organizing elections.

The deceptively named Employee Free Choice Act (EFCA) was organized labor’s top demand from the new supercharged Democratic majorities that took office in 2009. Big Labor and its congressional allies designed the legislation with one goal in mind: ease union organizing at any cost. Its designers did not make EFCA omnibus legislation that would “solve” all Big Labor’s “problems” at once; to choose only the most glaring omission, the legislation did not touch Section 14(b) of the Taft-Hartley Act, the provision that authorizes state-level right-to-work laws.

The most controversial provision of EFCA was its “card check” or “union certification without election” rule. The law would have compelled recognition and bargaining upon the presentation of union authorization cards signed by a majority of the workers in a proposed bargaining unit, essentially overriding the provision for NLRB-supervised secret-ballot organizing elections. Less prominent but equally concerning to employee freedom and business advocates were provisions giving the Federal Mediation and Conciliation Service (FMCS) the power to dictate an initial contract to newly unionized workers and their employer and expanded penalties for employer (but not union) unfair labor practices. The latter functions as a sword of Damocles over employers who might wish to offer views on the potential consequences of unionization but are not sure what the precise legal boundaries on such activity are.

Facing the threat of the largest expansion of union power since the original 1935 Wagner Act, business groups and conservative activists spooled up major advocacy efforts both before and after President Obama’s election to block EFCA’s passage. Participants included the Workforce Fairness Institute, the U.S. Chamber of Commerce’s Workplace Freedom Initiative, Americans for Tax Reform’s Alliance for Worker Freedom, the broad business-community Coalition for a Democratic Workplace, and the Enterprise Freedom Action Committee.

They had an unexpected ally in 1972 Democratic presidential nominee George McGovern, who has the ignominious distinction of being the only Democratic nominee not to receive the AFL-CIO’s endorsement for President since the AFL and CIO merged in 1955. Former Sen. McGovern became a prominent face of opposition to the legislation, objecting in print to its “card check” provision, writing, “We [Democrats] cannot be a party that strips working Americans of the right to a secret-ballot election.” McGovern also wrote in opposition to the FMCS arbitration provision, citing long-time AFL-CIO president George Meany as arguing that mandatory arbitration of labor contracts was “an abrogation of freedom.”

McGovern would not prove to be the only Democrat unwilling to go along with Big Labor’s expansive labor-law rewrite. Sen. Arlen Specter of Pennsylvania, who midway through 2009 defected from a Republican Party with which he had long weakly aligned to the Democratic Party in which he had started his adult life, had prior to his party-switch declared at a Capital Research Center-sponsored conference that he could not support EFCA’s card-check provision. Democrats from Republican-leaning states like Sen. Blanche Lincoln (D-AR) also slow-walked the legislation through the Senate’s processes.

Besides, EFCA was not the Obama administration’s legislative priority either. Aside from the early “stimulus” government-spending bill, the administration and Democratic congressional leaders were most interested in passing a structural reform of healthcare finance. Organized labor and its allies on the political left were perfectly happy to support the healthcare crusade, and they were willing to follow the order of legislative operations their political allies laid out.

Retirements of the rivals

But when investigators came inquiring about Trumka’s alleged money-shuffling in support of Carey, Trumka clammed up. And Sweeney absolved his lieutenant, arguing that an internal investigation had cleared Trumka.

The rivalry between AFL-CIO leader John Sweeney and SEIU leader Andy Stern defined labor unionism in the 1990s and 2000s, as the two battled over political and organizing strategy in a declining movement. By 2009, however, they both were exiting office.

Sweeney would step down in September 2009, being replaced by his longtime deputy. Richard Trumka had risen through the leadership of the United Mine Workers of America, with a record of agitation and strike violence in his wake. Trumka was Sweeney’s running mate for the AFL-CIO’s number-two position of Secretary-Treasurer in 1995 and won election alongside him.

As AFL-CIO Secretary-Treasurer, Trumka’s most notable issue was his involvement in the late 1990s campaign finance scandal that unseated the “reformer” Teamsters union president Ron Carey and entangled the Clinton White House. As New York Times columnist William Safire wrote at the time:

Trumka at A.F.L.-C.I.O. headquarters agreed to take $150,000 from the teamsters’ treasury. He then sent that money to a liberal advocacy front called Citizen Action, which skimmed one-third of it as a laundering fee, passing the remaining $100,000 to the campaign consultants handling the re-election of the teamsters’ Ron Carey.

Thus did ”reformer” Carey, apparently with the secret help of Trumka, use the dues of union members — half of them opposed to him — to finance his own campaign. Asked about this abuse by the Federal official investigating the stolen election, former Judge Kenneth Conboy, Trumka took the Fifth.

Trumka’s invocation of his rights should have posed a terminal problem for his ascent up Big Labor’s cursus honorum. Since the 1950s and the days of the McClellan Committee investigating labor racketeering, the AFL-CIO had a standing rule that any union officer who pled the Fifth was obligated to resign. Then-AFL-CIO president George Meany had enacted the rule to pressure Teamsters boss Dave Beck, the so-called “Republicans’ Labor Statesman,” into cooperating with McClellan’s investigation.

But when investigators came inquiring about Trumka’s alleged money-shuffling in support of Carey, Trumka clammed up. And Sweeney absolved his lieutenant, arguing that an internal investigation had cleared Trumka.

And that was that. A decade or so later, Trumka was the new big boss, handed unopposed control of an AFL-CIO that dreamed of EFCA-boosted membership rolls and anticipated 40 years of social-democratic political dominance.

The AFL-CIO had other reasons to be optimistic. Its would-be rival, the Change to Win federation led by Andy Stern’s SEIU, was imploding. The biggest fight was within Unite Here, which had merged the old, declining, and resource-rich needle-trades union UNITE with the younger, growing, and resource-poor restaurant, hotel, and casino workers’ HERE early in the 2000s.

But by 2009, the marriage was strained amid allegations that Stern was eyeing Unite Here as his next acquisition target and with the initial power-sharing agreement between the UNITE and HERE factions due to expire. (Much of SEIU’s growth from the 1980s through the 2000s that made the old building-services union a power player in healthcare and the government sector was from aggressive mergers and acquisitions.) Unite Here president Bruce Raynor, who had previously led the needle-trades faction, declared the Unite Here experiment a failure. He then took his old UNITE unions out of Unite Here as “Workers United” and joined Stern’s SEIU.

Ultimately, SEIU would win the battle for Amalgamated Bank, securing it in an agreement formally dissolving the Unite Here merger. The Bank initially struggled, requiring a rescue from private equity firms (including one owned by Wilbur Ross, later Commerce Secretary in the very SEIU-unfriendly first Trump administration). But later Amalgamated Bank became an emblem of the alliance of Big Labor and the Democratic establishment by becoming the preferred bank for Democratic Party committees and candidates while under union control and substantial union ownership.

And come 2010, Stern followed Sweeney out the exit door. But unlike Sweeney, who comfortably passed off his office to his loyal lieutenant and chosen successor, Stern saw two senior subordinate officers battle for the top job. Stern preferred Anna Burger, the titular chairwoman of Change to Win and secretary-treasurer of the SEIU, to succeed him. According to Politico, the pair tried to work out an arrangement with the Obama White House to have Patrick Gaspard, the senior Obama White House aide who had previously led the political arm of the New York City-based 1199SEIU union, run as Burger’s running mate, with the promise of the union presidency in the future extended as a sweetener to Gaspard.

But Stern’s support brought baggage. Union officers, who were responsible for selecting Stern’s successor, had problems with the Stern-Burger regime. (A unionist blog hostile to that regime that served helpings of sometimes-unproven SEIU scuttlebutt went by the moniker “Stern Burger with Fries.”) To hear labor-movement journalist Harold Meyerson tell it, Burger became the target of union officers’ reprisal for Stern’s often heavy-handed management in what was otherwise a campaign about nothing substantive. The grumpy faction of SEIU leaders turned to then-executive vice president Mary Kay Henry, and when it became clear that Henry was going to secure a majority of the electoral votes, Burger withdrew.

Obamacare’s poisoned chalice

Contrary to predictions of a generational majority for Obama’s party, the healthcare debate was reanimating the moribund Republicans.

As the leadership of the two most important labor organizations was turning over, Congress and the Obama White House were assembling their healthcare finance legislation. Organized labor demanded that any such legislation include a so-called “public option,” a government-run health insurance program, and leave alone high-value health plans negotiated by unions.

But Democrats on the Senate Finance Committee did not pass legislation that met those demands. Their proposal included no “public option” and a “Cadillac tax” on high-value health plans. No big deal; the House of Representatives, with its gigantic Democratic majority, was expected to pass a more liberal bill it could send back through the Senate’s filibuster-proof Democratic majority. Sure, Senate Democrats had to retain a special election in Massachusetts, a state President Obama had won by 26 points, to make this play work, but that was surely academic.

Until it wasn’t. Contrary to predictions of a generational majority for Obama’s party, the healthcare debate was reanimating the moribund Republicans. With one chance to potentially stall the healthcare bill—and other left-wing legislation like EFCA—in Massachusetts, they rallied. The result was an upset win for “Scott Brown Forty-One”—nicknamed for the threshold to sustain a Senate filibuster—and the Republicans.

While Sen. Brown’s election terminated any remaining chance of EFCA or a “diet EFCA,” perhaps without the card-check provision, from becoming law, what became known as “Obamacare” was not dead. The Senate Finance Committee legislation had cleared the Senate before Brown’s election, so it remained alive as a (mostly) take-it-or-leave-it offer. Despite their aggressive rhetoric and even political threats to Democrats before Brown’s election that the Cadillac Tax was a non-starter and the public option was a must-have, labor unions dutifully got in line behind the Obama administration and campaigned for the House to pass the “Patient Protection and Affordable Care Act.”

Leading the charge for Big Labor was the SEIU and Dennis Rivera, longtime head of 1199SEIU and fair-weather friend of the New York State GOP’s “Prize Patrol.” Rivera built coalitions with healthcare-industry businesses and establishment institutions not perceived as openly left wing like the AARP that could aid the push for the Obama administration and Congressional Democrats’ healthcare policies. Unions also stocked the steering committee for the broad-left “Health Care for America Now” coalition funded largely by Irish-American duty-free-shop billionaire Chuck Feeney’s Atlantic Philanthropies, with AFSCME, the NEA, SEIU, and the UFCW sitting on the initial committee.

And when the House passage of Obamacare came down to a handful of Democrats with pro-life sympathies who did not want government funding of abortions, it was pressure from Big Labor that got them to “yes” on the legislation. So Obamacare passed, and despite lacking Big Labor’s favorite provision and the threat of a tax on Big Labor’s health plans, Big Labor cheered. But the legislation, and the “reconciliation sidecar” legislative process that helped it over the finish line, had irritated the electorate, and it made its irritation known in November 2010.

Republicans took control of the House of Representatives, snuffing out any hope of EFCA’s return for as long as that situation prevailed. More important was the absolute disaster union-backed Democrats suffered at the state level, with Republican “trifectas” sweeping to power in the Upper Midwest and Great Plains states.

This had two consequences. First, the trifecta governments began pushing back on union power, most notably in Wisconsin, where Gov. Scott Walker (R) and his allies strictly limited government worker collective bargaining in the state that had been one of the earliest adopters of the practice. Other new Republican governments like Michigan’s moved against the “dues skim” that had filled SEIU’s member rolls with workers who had little need nor desire to pay forced dues. Even Democratic-controlled states had to explore limiting their unionized government workers’ benefits and powers.

Second, the Republican trifectas aggressively redistricted their states, helping to secure Republicans’ position until later in the decade. Thus, even President Obama’s reelection in 2012 did not restore the Democrats’ federal “trifecta”; Republicans held on to House control.

The Long Decline continues

The Holy Grail for conservatives was a judgment prohibiting forced dues, at least in the government sector, in their entirety.

Parallel to the rapid decline in unions’ political fortunes was the continuation of the Long Decline in union membership. Big Labor had bet heavily on EFCA as the solution to its problems, but instead of more easily organizing new members, it reaped failure and an unusual down-blip in the labor movement’s general popularity. In Gallup’s historical tracking of labor union approval, approximately two-thirds of respondents typically approve of labor unions. But from 2009 through 2014, unions’ approval dropped to about half of respondents, the lowest levels Gallup has to date recorded. The likeliest cause of this drop-off was unions’ aggressive politicking for the Obama administration and liberal-progressive Democrats during the Obama years.

The Long Decline got so bad that Trumka’s AFL-CIO proposed a bonkers remedy to it. According to a 2013 New York Times report, Trumka floated “making progressive groups — like the NAACP; the Sierra Club; the National Council of La Raza, a Hispanic civil rights group; and MomsRising, an advocacy group for women’s and family issues — either formal partners or affiliates” of his labor union federation. The effort to double down on political activism was blocked by AFL-CIO member union leaders, who did not want their influence within the federation diluted by new activist voters.

As unions were struggling for members and popularity, they faced new challenges in the courts. Since 1977, government worker unions in states without right-to-work laws had the power under Supreme Court precedent to compel non-members forced to accept a union contract to pay forced dues. But as government worker union members became more aggressive in their organizing and fee-assessment tactics, dissenting employees began challenging the practice once again.

The first challenge to reach the Supreme Court was from California. Dianne Knox, a civil servant, challenged the union that dominated her workplace (SEIU Local 1000) for assessing a fee on nonmembers to oppose various ballot measures considered in the 2005 state elections. (Thanks in part to those assessed fees, the unions won.) In a case titled Knox v. SEIU Local 1000, the Supreme Court ruled in 2012 that the union should have used an opt-in procedure for special dues assessments against forced-dues-paying nonmembers and would be required to in the future.

Two years later, the “dues skim” was challenged at the high court. Pamela Harris, an Illinois woman who received state aid to provide in-home care to her disabled son, was deemed organized into the SEIU and compelled to pay forced dues as a sort of government worker. In 2014, the Supreme Court ruled in Harris v. Quinn that Harris’s arrangement with the state was not sufficient to create a compelling government interest to permit a forced dues scheme.

The Holy Grail for conservatives was a judgment prohibiting forced dues, at least in the government sector, in their entirety. In 2015, a challenge to government sector forced dues titled Friedrichs v. California Teachers Association reached the Supreme Court. But Associate Justice Antonin Scalia died between oral argument and the issuance of an opinion in the case. Without him, the Court was equally divided and the lower court ruling affirming the forced dues power under the 1977 precedent remained valid.

Meanwhile, with EFCA a non-starter in a Republican-controlled House of Representatives, Big Labor’s crusade for private sector organizing aid moved to the Executive Branch and the National Labor Relations Board (NLRB). The regulatory agencies under the Obama administration aggressively moved to ease organizing, authorizing “quickie elections,” affirming “micro-unions,” redefining “joint employment,” and granting unions the power to unionize graduate students.

2016 and beyond

In June 2018, the Supreme Court handed down its ruling in Janus v. AFSCME, overturning its 1977 precedent and affirming that any forced-dues arrangement for unions of government workers was contrary to the First Amendment rights of dissenting workers.

With Hillary Clinton the overwhelming bettors’ favorite to win the 2016 presidential election and Democrats hopeful that the House and Senate would revert to their control, organized labor would have been confident that its preferred policies would remain in effect or advance under an ever-emerging Democratic majority. But as labor unions’ own polling indicated through the campaign, her Republican rival Donald Trump had unusual strength in unexpected places, and that unexpected support would propel Trump to an Electoral College majority and the White House.

President Trump’s first administration treated organized labor as had its Republican predecessors since 1980; that is, as a wing of Everything Leftism to be opposed, and his NLRB appointees reversed many of the Obama-era “innovations.” Trump’s election meant something else: Senate Republicans led by Sen. Mitch McConnell (R-KY), who had taken the majority in the 2014 elections before Antonin Scalia’s death, held the vacancy created by his death open. When President Trump won, he could appoint (and McConnell’s Senate Republicans could confirm) a new justice. This had a labor implication: the challenges to government sector forced dues would return to Supreme Court.

With Associate Justice Neil Gorsuch seated, the Court could re-address the question that fate compelled it to punt in Friedrichs. Mark Janus, a child support specialist with the Illinois Department of Healthcare and Family Services, challenged the forced dues requirement imposed on him by American Federation of State, County, and Municipal Employees (AFSCME) Council 31. In June 2018, the Supreme Court handed down its ruling in Janus v. AFSCME, overturning its 1977 precedent and affirming that any forced-dues arrangement for unions of government workers was contrary to the First Amendment rights of dissenting workers.

But the first Trump administration exited office in 2021, being replaced by a Biden administration happy to use Big Labor as a vehicle to advance Everything Leftism. The Biden administration pursued a “whole of government” effort to promote union organizing, which began on its first day by breaching custom to sack the Trump-appointed NLRB General Counsel (chief prosecutor) before the end of his term in order to replace him with a labor union lawyer.

Like the first Trump administration, the Biden administration also concluded after only four years. The second Trump administration has begun with a double mind on labor issues, pushing aggressively against federal government unionism while offering appeasing noises to a Teamsters Union less committed to Everything Leftism than it was during the first Trump administration.

Conclusions

Since the Great Society showed the limits of liberalism, this has put Big Labor on the back foot as the conservative movement and Republican Party have gained electoral and advocacy purchase.

Thus concludes our trip from the beginnings of workmen’s organizing in the 19th century to the present day. The survey teaches lessons that other, often hagiographic stories of labor history would overlook or omit, which may now be considered.

First, organized labor on the American model, with exclusive monopoly collective bargaining on a firm or plant level was an early-20th century approach to addressing 19th century problems. Hours were long, pay was low, and work was hard; unionism emerged to ameliorate the conditions of the early industrial workers. But by the 1930s, the demands of organized labor were frequently adopted into public policy that has since become public consensus. The federal Fair Labor Standards Act codified in principle 19th century organized labor’s principal demand: the standard eight-hour workday (five times per week), with extra compensation required for extra time worked. It also threw in a federal minimum wage, since raised several times, with states free to adopt higher minimums.

Other 19th-century labor demands were also codified. The federal Occupational Safety and Health Act set enforceable standards for workplace safety, a longtime union reason-to-exist. States adopted compulsory, state-managed workers’ compensation and unemployment insurance schemes, superseding potentially union-provided benefits. Since American organized labor since the days of Samuel Gompers has sold itself as providing “more” for workers in a country less susceptible to appeals to class warfare than Europe has been, the crowding out of union-provided “benefits” by state mandates has proved vexing for union campaigners.

Throughout labor history, while unions tend to be “personally” popular, union demands that abuse the general public or union mismanagement that abuses union members can turn the public against union power. In 1946, the public swung hard toward restricting union activities after the strike wave that followed the end of World War II. In the late 1950s, Congress campaigned for and the public demanded legislation to redress the abuses of Jimmy Hoffa and other Big Labor crooks. Government worker unionism has come into question as it becomes increasingly apparent that unionized government workers have used their powers to provide worse services at higher prices.

Finally, the union-left alliance is as old as American unionism, with radicalism frequently appearing, receding, and returning. Since the Great Society showed the limits of liberalism, this has put Big Labor on the back foot as the conservative movement and Republican Party have gained electoral and advocacy purchase. Big Labor’s 1970s economics and ever-increasing revolution social policies have made it an important ally of the organized left and the Democratic Party. But that has left Big Labor exposed to the changing economy and to workers’ political preferences, which often don’t follow the left-wing politics of union leadership cadres.

A long, protracted decline in union power has been the result of government stepping into many of the roles unions claim as their own, periodic reversals in public fortunes in reaction to unions’ abuses, and a change in electoral politics from the New Deal and “we are all Keynesians now” Great Society eras. Big Labor over the past few decades has tried to recover that decline by increased coercion: forced-dues expansions, card-check mandates, and the like. Because the public are less than enthusiastic about forcing themselves to join political organizations with which they may disagree and economic organizations that provide little benefit to them, this effort has failed even to arrest Big Labor’s decline.

Source: https://capitalresearch.org/article/the-contemporary-era-of-labor-unionism/