Unions in America: An up close view from a Labor Lawyer

     "The law in this country has, with some exceptions, served as a tool to weaken unions and workers' power."

            Jonathan Walters

Labor unions are passé.  We hear a lot about the value of free markets in everything, including labor.

Freedom to compete. Freedom from regulation and constraints. Freedom to hire and fire. Freedom to switch employers, or have no employer. People consult. They have projects, not a job. It is the gig economy. The result is a utopia of greater productivity, lower prices, more goods and services, more independence, and everyone better off. Right?

Not really. People are financially insecure. The middle class is shrinking. Jobs are being automated away or have moved offshore. Workers turned populist and angry. Prices are low at Walmart, but their employees qualify for poverty benefits. Our democracy is in trouble.

Unions are in decline in the private sector, but they aren't dead, not yet. 

Unions allow labor to organize to negotiate with the employer as a group. That way workers can offer or withhold their service, exposing the value they bring. Worker cooperation and solidarity with one another seems old fashioned in the gig economy era. It seems "socialistic." It seems ungrateful to employers, who call their workers "associates" and "team members."  Employees and employers are partners, on the same side of the table--except when they are not. Employees are also vendors, selling a service. It is a negotiation, and therefore, a conflict. In a conflict, teamwork matters.

Every reader of this blog has seen some version of a Bruce Lee-style martial arts or swordplay movie. Several times over the course of the movie the hero will face multiple henchmen of the antagonist. The hero is badly outnumbered, but confronts the overwhelming force with confidence. Each opponent comes at the hero, one at a time, to be dispatched in a few seconds by the fighting wizardry of the hero. Together, of course, they would have overwhelmed the hero, but they did not fight as a group.

Unions organize workers. They need recruitment, leadership, and because the rules of unions are complex, an attorney. Jonathan Walters is a college classmate. He became a labor law attorney and has stayed with it for 45 years so far. He reads this blog and sent this comment to the recent posts. As he described himself, he is still working in the "trenches of class warfare." He has been active in the ABA's publications on Labor Law as well as the Philadelphia Bar Association's Labor Law Committee.

Guest Post by Jonathan Walters

Walters

Peter, you are quite correct in your analysis about the power dynamic.  People doing the work get paid when they have power to insist on it. The greatest power workers have is the unified ability to withhold their labor. In the U.S. there has been a long-time systematic effort by employers (I will use that term. I could say “the power structure”, “the bosses”, or even ”the ruling class” but let us use “employers” for now) to limit that power. You may remember that originally employers argued strikes were an anti-trust violation (remember the Danbury Hatters case) but the Sherman Anti-Trust Act specifically exempted labor.

However, certainly since the passage of the Norris-LaGuardia and Wagner Acts, there has been an ongoing trend towards limiting the ability of unions and workers to strike. A big impetus for this was the Second World War and the “no-strike” pledge. While there was some labor opposition (as enunciated by John L. Lewis of the Mineworkers), most of labor went along, especially the Communist-oriented unions and leadership, which played a greater role in the 1930s in labor organizing. They had their own political reasons for limiting strikes when these groups might otherwise have challenged a no-strike pledge. This developed a whole method of resolving workplace disputes without striking, i.e. labor arbitration. Over the past 80 years arbitration has really taken away the power of unions to disrupt work during the time when a collective bargaining agreement is in place.

In the 1930s, '40s and even early '50s, many unions could strike during the term of an agreement if work place issues were not resolved. The late Tony Mazzochi was a major force in Occupation Health & Safety, an officer of the Oil, Chemical & Atomic Workers (now part of the Steelworkers) and he was involved in the Karen Silkwood matter. To my mind he was one of the best union leaders I have ever met.  He once told me that when he worked at the Ford Plant in Mahwah, New Jersey that all workplace disputes were resolved in some fashion by the end of the day. Why? Because otherwise the UAW local there would strike.

But the law moved to the point where the existence of a grievance and arbitration clause in a contract means that a union is barred from striking during the term of the contract if the dispute is over a matter that is arguably governed by the grievance and arbitration procedure. Exhaustion of that can often take months. This lessened the power of workers.

Moreover, even what became illegal strikes, called “wildcat” strikes, which were not uncommon when I first began practicing in 1976, simply do not take place anymore. One of my first assignments as a junior associate was to go down to a union hall in Chester, Pennsylvania to tell the members of a shipbuilding local that their strike over imposition of a new attendance policy was illegal and they had to go back to work. There I was, shaking in my shoes in my nice new blue corduroy suit as people who had spent the past five hours not working and probably drinking began yelling at me. Eventually we got the matter worked out. That simply never occurs anymore. I do not think I have seen any of our clients engage in wildcat strikes since 1977 or 1978.

And strikes are not as common. The fact that employers can permanently replace (not fire, but permanently replace) lawful strikers has also had a negative impact. Workers don’t just have to worry about losing wages; they also have to worry about ever returning to work. Meanwhile, the employer is shut down or has to incur greater expenses while operating with either supervisors or replacements, whom I call scabs. See Jack London’s great description of a scab. I still feel that way.

I do a lot of work in the health care area representing the largest nurses’ union in Pennsylvania. Given the shortage of RNs and the cost of bringing in temporary nurse scabs, nurses have a bit more leverage. But what did Congress do as part of the deal to give health care workers rights under the National Labor Relations Act? Unions representing health care workers have to give 90-day notice of contract termination (as opposed to 60 days for unions representing workers outside the health care industry). They also must give earlier notice to Federal and state mediation agencies, and unique to health care, must give at least explicit 10-days notice of their intent to picket or strike. I certainly understand the logic of this, as well as the deal that was worked out (with Gerald Ford, I believe, in the White House) but obviously this takes away from the power of unions in that industry.

I leave you with verses from two songs that really explain what has happened. I believe the last verse of “Solidarity Forever,” the first stanza of which is still sung at some union conventions, goes “In our hands there lies a power greater than their hoarded gold, greater than their mighty armies magnified a thousand-fold, we shall fashion a new world from the ashes of the old, for the union makes us strong.” I think I am one of the few people that actually knows two or three portions of that song. That is something I thought of when I saw your point in your blog on Saturday about the power of workers when they withhold their labor.

The law in this country has, with some exceptions, served as a tool to weaken unions and workers' power. It is the opening line of one of the paragraphs of the Internationale, although I think it was added in this country. It goes something like “the law oppresses and tricks us. . . .”