Can Labor Fight Back?

Can Labor Fight Back?

Trump and the Republicans plan to roll back worker rights to pre-New Deal levels.

January 30, 2017

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This article appears in the Winter 2017 issue of The American Prospect magazine. Subscribe here

As the former union bastions of Pennsylvania, Ohio, Michigan, and Wisconsin flipped from blue to red on election night, with votes rolling in for a billionaire real-estate mogul with a cheap populist varnish, the once-mighty American labor movement saw its life flash before its eyes.

Early in the Democratic primary, virtually every labor union lined up behind Hillary Clinton—seeing her as a better political bet than the socialist insurgent Bernie Sanders. In the general election, they spent record amounts of money on their ground-game operations to turn out the vote for Clinton and give Democrats a majority in the Senate.

The stakes were high. With Clinton in the White House, unions had assurances that President Barack Obama’s pro-worker regulatory regime—which had expanded the number of workers who could receive overtime, and had mandated minimum pay standards and paid sick leave for federal contract workers—would remain intact. They likely would have persuaded her to continue using executive authority and leveraging the government’s contracting power to lift up workers. The Department of Labor would have continued to adopt innovative enforcement practices for wage and hour laws, while the National Labor Relations Board would have continued to interpret labor law in ways more supportive of workers and their unions. And with a Democratic Senate, a path to citizenship for undocumented immigrants, an infrastructure plan stocked with good-paying jobs, and even a higher minimum wage were all at least on the table. Even if the Democrats didn’t retake the Senate, Clinton would have served as a roadblock against Republicans’ anti-worker animus.

But it was not to be. When the Democrats’ Electoral College firewall collapsed, so too did the last line of political defense between a vulnerable labor movement and a Republican Party that has become even more uniformly opposed to unions and workers’ rights since 2006—the last time the GOP had unified control of the federal government.

The impending GOP attack on organized labor and workers will have multiple fronts: executive action, legislation, court rulings—and with Republicans in control of more than half the states, not just the federal government.

Unions need only look to Wisconsin and the orchestrated attack led by Republican Governor Scott Walker and his right-wing business allies to glimpse what might befall the nation. Soon after he was elected in 2010, Walker went after the state’s public-sector unions and gutted their collective-bargaining rights. After labor unions went all in on a recall election and failed, Walker went on to re-election in 2014 and signed into law right-to-work legislation the following year. Union membership rolls in Wisconsin have been decimated, significantly reducing the level of resources unions allot to organizing and politics. After Wisconsin flipped for Donald Trump, both the right and the left agreed on one thing: Walker’s attack on unions had been a deciding factor.

Clearly, the next four years for labor will be bad. How bad?

“In theory, with full GOP control, Republicans could repeal the National Labor Relations Act. They could repeal the Fair Labor Standards Act. They could repeal the entire New Deal,” says Catherine Fisk, a labor law professor at the University of California, Irvine. “There’s nothing to stop them except their own political strategy and fears of sparking a huge backlash.”

 

THE NEW DEAL IS NOT LIKELY to be repealed, at least not in its entirety. The National Labor Relations Act has been so corroded by employers’ violations of its terms—for which the penalties are negligible—that there’s little point in repealing it. But Trump will almost certainly roll back most of Obama’s labor-related executive orders and rules. Federal courts have already made that job easier: In November, a federal circuit judge in Texas enjoined the rule that would have granted millions of workers access to overtime pay, just days before it was to go into effect, and his opinion signaled that he would likely throw out the rule altogether. While Obama has appealed the injunction, as of now the future of the overtime rule will ultimately be in the hands of Trump. And another federal judge, also in Texas, struck down Obama’s persuader rule, which required companies to better disclose union-busting activity.

Gage Skidmore/Creative Commons

Unions need only look to Wisconsin and the orchestrated attack led by Republican Governor Scott Walker and his right-wing business allies to glimpse what might befall the nation.

Among Obama’s labor-related orders likely to be struck down by the new administration are the executive orders mandating that companies with substantial federal contracts provide a $10.10 minimum wage and paid sick leave for their contract workers, and furthermore disclose past labor-law violations. Orders requiring federal contractors to adhere to federal anti-discrimination laws for LGBTQ employees could also be wiped away.

“There’s a 25-year tradition of presidents very early in their tenures reversing the labor and employment executive orders of their predecessor presidents of a different party,” says Seth Harris, who served as acting labor secretary for Obama, between the tenures of Hilda Solis and Tom Perez.

Advocates don’t need to look far back into history to get a sense of what a Republican Department of Labor could mean. George W. Bush’s labor secretary, Elaine Chao, pared down the enforcement wing of the department to the point where, according to a Government Accountability Office report, workers’ wage-and-hour complaints often languished. She also intensified union auditing to bog down union staff with paperwork, and cost unions a lot of time and money. (The auditing exposed little wrongdoing.)

“The traditional approach of Republicans has been to emphasize compliance and de-emphasize enforcement. That doesn’t stop enforcement; it just reduces enforcement’s importance in the compliance regime,” says Harris. “That’s been the mode going back to Reagan.”

Unions are already considering the likelihood that Congress will pass national right-to-work legislation, which would ban private-sector unions from requiring dues payments from workers who benefit from union representation and contracts. If enacted, national right-to-work would significantly deplete both their membership and their treasuries. Trump has voiced support for such a law. Unions are also on the lookout for attempts to repeal or weaken such venerable labor laws as the Davis-Bacon Act, the prevailing wage statute that sets pay standards for workers on federally funded construction projects. (That measure could be part of the GOP’s infrastructure plan.) Several prominent Republicans have already co-sponsored legislation for national right-to-work and repeal of Davis-Bacon.

The right is also dead set on reversing the National Labor Relations Board’s decisions that have tilted in favor of labor. House Speaker Paul Ryan’s vaunted “Better Way” agenda has a special section on the NLRB, which laments, “It is hard to imagine a federal agency that has imposed more radical change on America’s workplaces than the political appointees at the National Labor Relations Board,” citing as examples rules that have made it easier for unions to organize workplaces.

Ryan’s plan calls for curtailing the power and scope of the NLRB, but that may change now that Trump will be appointing anti-union members to the board. “When Democrats are in power, Republicans try to starve the Department of Labor and NLRB,” says Nelson Lichtenstein, a professor of labor history at the University of California, Santa Barbara. “When they get into power, they don’t want to starve it anymore. They want their people in it.”

Though it may take a while for Trump to get his NLRB appointees approved, once a pro-business majority is in place the board will begin hearing cases that could reverse the Obama-era decisions that sped up union elections, allowed “mini-units” (a distinct set of an employer’s workers) to unionize, and established a new joint employer standard that makes corporations responsible for contractors’ and franchisees’ violations of their workers’ rights and labor law generally. A landmark NLRB decision that granted graduate student teaching and research assistants the right to form a union might be on the chopping block, too.

“At the NLRB, there is no middle ground. Precedent means nothing,” Lichtenstein notes. “It totally switches back and forth now.”

Bill Clark/CQ Roll Call via AP Images

House Speaker Paul Ryan’s vaunted “Better Way” agenda has a special section on the NLRB, which laments, “It is hard to imagine a federal agency that has imposed more radical change on America’s workplaces than the political appointees at the National Labor Relations Board.”

Wilma Liebman, a former Democratic chair of the NLRB, anticipates that Trump’s board will not only reverse Obama’s decisions, but will likely dramatically expand management rights, employers’ property rights, and employers’ free speech rights over the rights of workers and their unions. “I wouldn’t expect too much that would be pro-worker. The question is how bad, and how fast?” she says.

 

JUST LAST YEAR, PUBLIC-SECTOR unions were facing the near certainty that the Supreme Court would rule in Friedrichs v. California Teachers Association that non-union members were not required to pay mandatory “agency fees” for a public-sector union’s collective-bargaining services. The prospect of a massive reduction in dues payments, and with that, the unions’ clout, stared them squarely in the face.

But Justice Antonin Scalia’s sudden death led to deadlock on Friedrichs; no decision came down. A new liberal justice appointed by Obama (or, after the Senate Republican stonewall, Clinton) would almost certainly have protected public-sector unions from such attacks for decades to come.

Now, President Trump is expected to nominate a reactionary in the same mold as Scalia. And though a deadlocked Court was unable to rule on Friedrichs, there are a couple of dozen cases working their way through the lower courts that would accomplish the same union evisceration that Friedrichs was intended to. With that, the GOP will have succeeded in its campaign to attack the public sector—which, with 35 percent density, is by far the most heavily unionized sector in the country.

A conservative Court is also expected to reject impending cases that seek to do away with mandatory arbitration clauses that prohibit workers and consumers from participating in class-action lawsuits.

With Trump’s court likely to rule that public-sector union-represented workers need not pay dues, those unions are scrambling to shore up their ranks. The leadership of the American Federation of State, County, and Municipal Employees—a 1.6 million-member organization that is one of the nation’s four big public-sector unions—says it got scared straight when it looked like Friedrichs would be upheld before Scalia died. AFSCME had already seen what could happen on a state level: After Walker gutted state workers’ collective-bargaining rights, AFSCME lost two-thirds of its Wisconsin membership. “I think we took things for granted,” AFSCME President Lee Saunders told The Washington Post in 2015. “We stopped communicating with people, because we didn’t feel like we needed to. That was the wrong approach, and we don’t want to fall back into that trap.”

The union has focused on intensive internal organizing efforts, trying to rebuild connections with its members over the long term, not just when election season comes around. Since 2014, it has trained thousands of its members in how to talk to their co-workers about the union and what they want from it. “The result has been a substantial culture shift. Workers even in the smallest locals are now more empowered to make change, rather than waiting for someone from ‘the union’ to do it for them,” Saunders wrote in an op-ed for the Prospect. “And our frontline local leaders and staff representatives have gone from being service providers to organizing coaches. More and more, we’re teaching people to fish instead of giving them a fish.”

The back-to-basics strategy appears to be working. The union says it has signed up about 380,000 new dues-paying members since it began the effort and hopes that continued contact with members will encourage them to stay in the union voluntarily if a Friedrichs-style case does come to fruition.

 

THIS, OF COURSE, IS NOT THE first time that organized labor has faced an existential crisis—in fact, most of the movement’s history is characterized by existential crises. As always, it’s labor’s response that will determine whether the oft-predicted demise of the movement will come to pass.

“What terrifies me most is [that] we adopt this conservative cautionary crouch. That means that even if everything we do that’s cautionary and conservative is successful, we’ll just be weaker on the other end of it,” says Stephen Lerner, a labor strategist who organized the Service Employees International Union’s groundbreaking Justice for Janitors campaign in the 1990s. “So we have to figure out how we do this in a way that will build a broader movement, not circling the wagons trying to save something that wasn’t working in the first place.”

A signature issue of Trump’s campaign was his promise to deport millions of undocumented immigrants, which would likely entail greatly stepped-up workplace raids. As more Latino and immigrant workers have joined unions over the past two decades, labor has become perhaps the leading advocate of fully legalizing the undocumented. Now, one of its top priorities, observers say, will be resisting any assault on the undocumented community, including efforts to increase deportations.

Lichtenstein thinks that the Republican strategy will be to starve cities of federal funding as a means to undermine the power of union strongholds. Trump has already threatened to defund cities that maintain their sanctuary status for undocumented immigrants, as many major Democratic mayors have pledged. In addition, infrastructure and other critical federal spending programs could be selectively diverted to non-urban areas, creating a cash crisis for city budgets. “Every mayor, no matter how liberal they are, will be forced to take a harder line against the unions [especially public-sector], because money will be tight,” Lichtenstein says. “That will generate a kind of civil war within the Democratic political world.”

Where Republican governors have cut funding to Democratic cities, unions often have reacted forcefully. Illinois Republican Governor Bruce Rauner, for instance, has reduced state funding to Chicago, and, in response, Democratic Mayor Rahm Emanuel has privatized city services and closed public schools, running into fierce opposition from the city’s teachers union, which has relied on militant tactics to block some of Emanuel’s initiatives.

SEIU Local 99/Creative Commons

Spurred by movement like Fight for 15, liberal cities and blue states will likely continue to serve as incubators of progressive policies that improve the quality of low-wage work.

“That will happen in all sorts of places around the country,” Lichtenstein says. “Paul Ryan knows that. He’s been thinking about this for ten years. They have a well-developed idea of what they want to do: A fight inside of the cities, plus Friedrichs, will create Wisconsin on the national scale.”

Lichtenstein anticipates that as attacks against unions escalate, the movement will become more radical. “When you’re defeated and weak, you become radical institutionally. This is based in history,” he says.

Indeed, the centers of resistance, struggle, and progress will almost surely continue to be in localized areas—the liberal metropolises and the (few) Democratic-controlled states where union density is higher and progressive organizations are more influential. In such terrains, unions have experienced successes that may provide models for the broader movement, as more and more cities, at least, turn blue.

The Culinary Workers Union—a heavily Latino and female local that represents hotel and casino workers in Las Vegas—is a political powerhouse that, despite being in a right-to-work state, has maintained a robust membership of 60,000 and has pioneered strong leadership and service programs. The Culinary Workers have made Las Vegas a union town, and translated the power of their numbers and spirit into political success. In November, the union’s members played a key role in helping Clinton and Democratic Senate candidate Catherine Cortez Masto win in a contentious purple state, and also helped elect Jacky Rosen, a former Culinary member, and Ruben Kihuen, the son of a Culinary housekeeper member, to Congress in formerly Republican-held seats.

“We won because we were committed to doing this internal power-building,” says Bethany Khan, the local union’s communications director. “We’ll continue to be very aggressive and militant on fighting for and protecting workers. We’ve done that for over 81 years and will keep doing that.”

The union will have to—especially since it’s in a heated dispute with the Trump International Hotel in Las Vegas, in which Trump himself has an ownership stake. Trump and his business partner have refused to recognize the union after workers voted in favor of unionization, and the hotel has appealed at every step. The union—which since 2001 has helped 16,000 Nevadan immigrants become citizens—has also pledged to be on the front lines against any type of anti-immigrant assault from Washington. “We will not stand for someone separating our families and the people we love,” Khan says.

In Chicago, after an insurgency by the reformist left wing of its rank-and-file caucus led to a more confrontational strategy, the teachers union has become one of the most effective organized forces during Mayor Emanuel’s divisive tenure. It has led fights against austerity measures, school closings, and privatization of the Chicago Public Schools system. After a tense showdown over contract negotiations this fall, a last-minute contract deal was reached to avert a strike. The teachers union was able to get most of its contract demands and protect teacher salary and benefits by forcing the city to redirect $88 million from a tax increment financing fund. The union’s public protests, broad-based coalitions, and strikes—and its campaign that highlighted how financiers have captured public money—can provide a road map for urban teachers unions under a Trump presidency, which looks to have its eyes set on privatizing the public education system.

“No one has quite digested that they basically had a strike against the city’s ruling class and said you better find the money somewhere,” Lerner says. It is these types of more radical strategies that the broader movement needs to embrace—adding offense to all the defensive maneuvering unions will be compelled to undertake.

Beyond Chicago, Lerner points to initiatives like the Committee for Better Banks campaign—backed by the Communications Workers of America—as an example of using unions not only as a vehicle for advancing workers’ rights, but for the common good. For the past few years, the campaign has been organizing front-line bank workers—tellers, sales associates, call center operators, and so on—including the Wells Fargo employees who helped blow the whistle on the company’s widespread account-creation fraud. Unionizing bank employees, Lerner says, would not only ensure that jobs would pay a middle-class wage, but also allow bank workers to come forward about corporate misconduct without fear of repercussions.

 

DURING THE TRUMP PRESIDENCY, liberal cities and blue states will likely continue to serve as incubators of progressive policies that improve the quality of low-wage work. In response to the Fight for 15 campaign, several of the country’s largest cities have instituted a $15 minimum wage, as have the nation’s two largest states, California and New York. A number of cities are on the verge of passing new ordinances mandating paid sick leave, paid family leave, and access to predictable schedules and full-time hours for retail workers.

Ballot measures continue to prove effective at cutting through political resistance and putting pro-worker policy directly before the voters. On Election Day, three states—Arizona, Colorado, and Maine—approved ballot measures that would increase their minimum wage to $12 by 2020. Washington state voters approved a measure to hike their minimum up to $13.50 by 2020. Arizona’s and Washington’s measures included mandatory paid sick leave as well. Voters in San Jose, California, approved a measure requiring businesses to offer available hours to part-time workers before making additional hires. During the midterm elections of 2014, voters in four red states—Alaska, Arkansas, Nebraska, and South Dakota—also approved minimum-wage increases.

While many cities and counties in red states are preempted by state law from passing their own local minimum-wage or paid sick leave policies, organizers have found alternative, if less-comprehensive, routes, such as living-wage ordinances for city workers and contractors. Wisconsin, for instance, prohibits localities from passing minimum-wage ordinances. In Milwaukee County, however, the Wisconsin Working Families Party (WFP), after launching in 2015, and the Alliance for Good Jobs have helped recruit and elect progressive activists to the County Board of Supervisors, among them Marcelia Nicholson and Sequanna Taylor, both activists in the city’s teachers union, who won their seats in April. Nicholson promptly drafted a living-wage ordinance that would mandate a $15 minimum wage, phased in by 2022 and then tethered to inflation, for county employees and contract workers. The ordinance was overwhelmingly approved in early November, just days before Election Day. In September, the WFP helped pass a similar ordinance in Dane County, home to the state’s capital of Madison.

Following a pattern established in Los Angeles in the 1990s, the state’s WFP and Milwaukee’s Alliance for Good Jobs also brokered a deal with NBA basketball team the Milwaukee Bucks, which is currently building a new arena, to establish a community benefits agreement that mandates that all the arena’s service workers are paid $15 an hour by 2023; that at least half of the employees will come from impoverished Milwaukee neighborhoods; and that these workers will have a right to unionize with card-check neutrality. The groups hope to expand these types of agreements to other types of private-sector employers in the city.

Bill Clark/CQ Roll Call via AP Images

Power on the Sidewalk: Las Vegas hotel union members protesting outside Donald Trump's hotel-casino, with Democratic candidate Ruben Kihuen, whom they helped to unseat a Republican congressman in November's election. 

What the Wisconsin groups are doing amounts to “taking the movement for $15 and union, and working to establish those goals through local measures,” says Peter Rickman, a co-chair of the Wisconsin Working Families Party, who helped lead the living wage and community benefits campaigns.

 

IN JUST FOUR YEARS, THE FIGHT for 15 has experienced great success in pressuring politicians and private employers to increase their minimum wages. So far, some 19 million low-wage workers stand to benefit from raises that, in aggregate, total up to $62 billion, according to a report from the National Employment Law Project. That’s ten times the total raise workers received when the federal minimum wage was last increased in 2007. And the movement, backed by SEIU, of low-wage workers, predominantly young African Americans and Latinos in cities, has begun expanding its mission to intersect with the black-led movements against police violence and voting restrictions and Latino-led demands for immigration reform. The Fight for 15 could very well become the labor movement’s spear under Trump: a broad-based coalition of marginalized workers, in the streets and making demands for both economic and civil rights. In its first action since Trump was elected president, the Fight for 15 staged protests which included civil disobedience in more than 300 cities across the country with a broad collection of low-wage workers—fast-food, child-care, and home-care workers; airport employees and adjunct professors—as well as allies and elected officials.

But the campaign faces impending problems, both legal and monetary. SEIU has so far funneled more than $70 million into the movement and has pledged to maintain funding into the future. While the movement has succeeded in winning wage hikes, it still struggles to find a path to unionization, which for SEIU is the other long-term goal of the project. Instead of trying to organize unions shop by shop, which is very resource-intensive and not likely to succeed, the union has placed its hopes in a case before the NLRB that argues that corporations like McDonald’s have the same level of responsibility for workers as their franchisees—meaning if one franchise unionizes, McDonald’s would be compelled to sit at the bargaining table as well. If that can happen, SEIU believes, it would be easier to wage a mass unionization campaign throughout the company. However, Trump’s election poses potential obstacles to both that case and the NLRB’s joint-employer standard (which makes both the franchisee and the parent company liable for labor-law violations) more broadly. And if the Supreme Court, augmented by a Trump appointee, goes after public-sector unions—and if national right-to-work passes—SEIU’s membership numbers are likely to decline along with its budget. Its ability to fund a massive operation like the Fight for 15 without a clear path for new members could become a luxury SEIU could not afford.

New York City Council Member Brad Lander is proposing a legislative remedy to address that. In early December, he introduced a bill that would require local fast-food restaurants to allow workers to send dues to labor advocacy organizations (like the Fight for 15) directly from their paychecks. Such a policy could be a critical experiment in sustainable funding for alt-labor initiatives, like workers centers, which typically rely on union and foundation funding, and perhaps become a first step in strengthening worker institutions that are not traditional unions.

 

TRUMP'S ELECTION AND THE GOP’s control of Congress have blindsided unions. Yet the forthcoming challenges are not new and have been the subject of fierce debate within the labor movement for years. “A lot of it [will be] just an acceleration of things that are already happening,” says Ruth Milkman, a sociologist of the labor movement at the City University of New York. The right wing’s plot to destroy the American labor movement, once again, will have its home base in Washington, D.C.

How to organize and grow while confronted with increasingly scarce resources, and in the face of an ongoing existential threat and an adversarial power structure, is, now more than ever, the ultimate labor question. Whether there’s a good answer to that question remains to be seen.

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