In February, teaching fellows in eight departments at Yale University voted in favor of union representation. Rather than bargain with the teaching fellows’ union, Yale has insisted upon first exhausting its appeals, apparently hoping that Donald Trump’s yet-to-be-named appointees to the National Labor Relations Board will come to its rescue. In the meantime, some of the teaching fellows have embarked upon a hunger strike, generating a great deal of publicity, and inflaming tensions on campus as right-wing student groups have taken to taunting the hunger strikers.
At the same time that this controversy has been brewing at Yale, employer trade associations have been aggressively lobbying Congress to do something to overturn the NLRB’s decision in Browning-Ferris Industries, which makes it easier for workers to bargain with lead firms that exercise power over their terms and conditions of employment.
When I think about the events at Yale and the employer community’s reaction to Browning-Ferris, I find it reassuring that collective bargaining still seems to strike so much fear into the hearts of employers. And yet, workers don’t seem to realize this. Instead, the share of the economic pie that workers get continues to shrink, while the percentage of workers in unions is also declining. And, instead of joining together with their co-workers to bargain collectively, some workers have turned to a billionaire demagogue who tells them they should let him be their voice since he alone can solve their problems.
Congress may be open to revisiting the classification of gig economy workers as employees or independent contractors under the Fair Labor Standards Act. Per Bloomberg BNA, “the head of the House workforce committee May 3 told an audience of innovators that she would be open to updating the Great Depression-era Fair Labor Standards Act to better serve the on-demand workforce.” Education and the Workforce Committee Chairwoman Virginia Foxx (R-N.C.) likened classifying gig economy workers as “trying to fit a square peg in a round hole.” Rep. Foxx made the comments at Consumer Technology Association’s New American Jobs Summit. Workforce Protections subcommittee ranking Democrat Rep. Mark Takano (Calif.) responded to Bloomberg BNA with concern, stating “When she talks about updating the laws, what I hear her say is we need to throw out protections instead of how these workers can get a fair deal.”
New data shows that the U.S. unemployment rate is near a record low – but productivity is dropping. Reuters reports that “U.S. job growth rebounded sharply in April and the unemployment rate dropped to a near 10-year low of 4.4 percent, signs of a tightening labor market that could seal the case for an interest rate increase next month despite moderate wage growth.” Reuters also notes, however, that “in another report, the Labor Department said productivity decreased at a 0.6 percent annualized rate in the first quarter, the weakest in a year, after rising at a 1.8 percent pace in the fourth quarter. It increased at a 1.1 percent rate compared to the first quarter of 2016.”
State-sponsored retirement plans for low-income workers exempted from strict ERISA requirements under the Obama Administration will likely see that protection revoked. According to CNBC, the Senate passed a resolution to repeal the exemption. The resolution previously passed the House, and President Trump is expected to sign it into law. Under the plans in question, “private-sector workers whose employers do not offer 401(k) or other retirement benefits, and who often have low incomes, are automatically enrolled in plans being launched in some states, such as Illinois. States say the exemption would have let employers pass workers’ money into plans without footing ERISA compliance costs.”
Sharon Block is the Executive Director of Harvard University’s Labor and Worklife Program. She formerly served in the Obama Administration as the Principal Deputy Assistant Secretary for Policy at the Department of Labor and Senior Counselor to the Secretary of Labor.
Two months ago, I walked out of the Frances Perkins Building in Washington and helped turn off the lights on the Obama Administration’s Department of Labor. As the head of the Department’s policy office and Senior Counselor to Secretary of Labor Tom Perez, I left proud of what we had accomplished to expand opportunity for American workers. I was also acutely aware that much remained to be done.
My life and the condition of our country has changed a great deal during these past two months. I am thrilled to be embarking on a new professional journey here at the Labor and Worklife Program at Harvard Law School and honored to have the opportunity to work with Professors Richard Freeman and Ben Sachs, the program’s faculty directors. I am humbled by the responsibility of taking over the program that my remarkable predecessor, Elaine Bernard, so successfully built over the past 30 years and by the magnitude of the challenges facing American workers today.
I come to the Labor and Worklife Program committed to continuing its core mission: to take advantage of the unique Harvard University community to bring rigorous, creative and serious problem-solving efforts to meet today’s challenges and prepare for the opportunities of tomorrow. A key component of my commitment is to continue the proud tradition of the Harvard Trade Union Program. I believe that it is more important than ever, as the labor movement faces unprecedented challenges, that a new generation of leaders benefit from the unparalleled training that the HTUP has provided for 75 years.
Yesterday, Republican lawmakers “proposed sweeping changes to Iowa’s collective bargaining laws” in the form of House Study Bill 84 and Senate File 213. As the Des Moines Register explains, the new bills would limit mandatory negotiations for most public-sector union workers (public safety workers such as firefighters and police officers are exempted) to base wages only; negotiations over issues like health insurance and overtime would be prohibited. The bills would also require unions to go through a certification process before each new contract negotiation. Additional coverage is available at the New Republic, which also provides a brief historical overview of collective bargaining law in Iowa.
The New York Times reports that New York is attempting to revive the once-thriving, now-troubled garment industry. City officials have increased efforts to create a new garment industry in Sunset Park, including a $115-million renovation of the city-owned Brooklyn Army Terminal, which will expand manufacturing space by 500,000 feet. They have also partnered with the Council of Fashion Designers of America in order to assist companies with modernizing their manufacturing processes and workplaces.
Can Andy Puzder survive? That’s the question Politico asks, noting that Puzder has faced allegations of beating his wife, began his career working for “one of the most notorious mob lawyers in the country,” and just admitted that he employed an undocumented immigrant as his house cleaner and didn’t pay taxes on her employment. Despite these scandals, however, Puzder is “somehow . . . still standing.”
In other news, the New York Times observes that the appeals panel that heard oral argument yesterday in State of Washington v. Donald Trump “appear[ed] skeptical of Trump’s travel ban.” The Times also notes that nearly 130 companies, most of them from the tech industry, filed an amicus brief in support of Washington State.
Kate Andrias is Assistant Professor of Law at the University of Michigan Law School.
Andrew Strom takes issue with labor supporters who are “arguing that collective bargaining is dead and unions need to find something new to replace it.” He argues that passing a series of local minimum wage ordinances “is no substitute for collective bargaining.” He is right on both counts. Collective bargaining is essential; and employment law cannot be a replacement for large-scale organizations that are controlled by workers. Any reform effort that rests on an abandonment of self-funded worker-led unions should be rejected.
But a commitment to collective bargaining and to worker-led organizations should not lead one to settle for our existing system of labor relations. As Strom himself has recognized “existing labor law makes it nearly impossible for workers to join unions.” The law also makes it exceedingly hard for workers to achieve substantial gains in bargaining. And the difficulties are likely to get worse with the new Administration.
People have been writing the obituary of the labor movement at least since the 1980s. These doomsayers fall into two camps. One the one hand, there are those who are eager to squelch worker power. A typical example is Virginia Foxx, the new Chair of the House Education and the Workforce Committee, who recently grabbed headlines when she asserted that organized labor had “sort of lost its reason for being.” Representative Foxx has never shown any interest in improving the lives of workers, so her comments are like a rabid Yankees’ fan predicting a bad year for the Red Sox. Of course, she’s not just a “fan,” she holds a position of power where she will undoubtedly try to make it harder for workers to bargain collectively.
But, at the moment, I’m more interested in the other critics – the labor partisans who argue that a new model is necessary to reverse labor’s long decline. Academics and outside observers have long tried to garner attention by promoting a shiny new toy that would replace the existing labor law regime. But it is more notable when a successful labor leader like David Rolf makes the same case. Rolf, a savvy strategist, who heads a home care workers’ union in Washington State, was one of the driving forces behind a successful ballot measure that dramatically raised wages and won paid sick leave for thousands of workers in SeaTac, where Seattle’s airport is located. Even though the Fight for Fifteen in Seattle could never have succeeded without support from unions that were the product of collective bargaining, Rolf is now going around the country arguing that collective bargaining is dead and unions need to find something new to replace it. In a post on this blog, Rolf set up a straw man by criticizing the status quo as based on “enterprise bargaining.” Elsewhere, Rolf suggested that we need a new model to promote geographic and/or sectoral bargaining. While it’s true that under current law, multiemployer bargaining is voluntary, unions already have a long history of engaging in geographic and/or sectoral bargaining. In some cases this has happened through formal multiemployer associations, while in other cases it happens informally on a de facto basis, but wherever unions have been successful, whether it is hospital workers in New York, supermarket workers in California, hotel workers in Las Vegas, or office cleaners in two dozen cities, this is what unions do now. And it’s not just in “legacy” industries. In fact, just this month, my union, SEIU Local 32BJ, reached a first contract with eleven employers covering over 7,000 workers at New York City’s three airports. Furthermore, even bargaining with a single employer can make a huge impact if the employer is large enough. For instance, the Teamsters represent over 250,000 workers who are employed by UPS. And if there were a successful campaign to organize Wal-Mart, that would cover over one million workers.
Kate Andrias is Assistant Professor of Law at the University of Michigan Law School.
This post is part of a series on Labor in the Trump Years.
As others have written, including on this blog, the Trump presidency could be devastating for unions—and for workers generally. The administration is likely to oppose any increase to the minimum wage; facilitate roll backs of overtime protections; support the expansion of right-to-work, including as a matter of constitutional doctrine; and appoint leaders to the various labor agencies who lack a commitment to enforcing civil rights, worker safety, and wage and hour laws. Also expected are appointees who seek to eviscerate collective bargaining and organizing rights under the NLRA.
Notwithstanding these and other serious threats, despair is the wrong reaction for several reasons.
First, the election underscored the importance of unions. To the extent commentators, including some Democrats, had depicted unions as unnecessary relics, the error of that position should now be clear. Worker organizations are key institutions for equalizing power in the economy and in the democracy. Their decline helps explain the current state of the American economy and politics. As Jake Rosenfeld wrote here, “[u]nions remain the only set of mass-based organizations that connect working-class Americans to politics.” Unions are also some of the few institutions in America through which working people can come together across boundaries of gender, race, and ethnicity, to advance their shared interests. Finally, unions are self-funded membership organizations. Historically, such civil society organizations have served as critical bulwarks against authoritarianism.