The recent corporate attacks on unions are coming fast and furious because in the past two years union membership has exploded. Retail workers have realized their value with the pandemic and have been demanding basic necessities that have been ignored for too long by the big companies. Union membership has languished for decades, and there has been a huge cost for that. Today’s retail worker has little to no benefits and wages have completely stagnated against the fast-growing cost of living. Things can’t get much worse, and many of today’s workers are realizing that unions can help.
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Unfortunately, trying to unionize is no easy feat. A study by the National Labor Relations Board found that a third of employers attempt to fire workers trying to unionize, while about half threaten to cut wages and benefits. And 57% of companies where employees have tried to organize threatened to shut down operations if a union effort is successful. In over 40% of union drive campaigns, companies have been charged with violating labor law. Most companies seem to hate unions. Many CEOs aren’t too keen on sharing profit.
Yet their anti-union tactics haven’t been working. Unions are being created at large companies that would have seemed impossible just a few years ago: Amazon, Apple, Chipotle, REI, Starbucks, and Trader Joe’s, to name just a few. Unions have won more elections today than in the past 20 years.
But as difficult as it is to brave such intimidation and successfully get through an election for a union, that’s just the beginning. Companies that aren’t successful in suppressing a union can fall back to engage in union-busting tactics. At Starbucks, besides illegally firing workers who voted to organize, they refused to negotiate a contract with the newly formed union. Other companies are stalling as well. After all, they have nothing to lose by doing this.
The National Labor Relations Board can file a lawsuit for not negotiating in good faith, but companies can appeal all the way to the Supreme Court, which can take years. Even then, they will just be ordered to bargain—there are no fines or penalties that can be levied against the company. DISH Network workers had to wait 12 years to get their first contract.
The one major tool unions have is the strike. This is exactly what Starbucks employees at over 100 stores were forced to do due to Starbucks’ refusal to negotiate. They launched what was called the “Red Cup Rebellion,” which was a walk-out on the coffee giant’s busiest day of the year, Red Cup Day. This is the day when the company gives away reusable cups to customers who buy holiday-themed drinks.
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Without the ability to strike, unions will have no leverage in getting agreements on anything. Although the White House has a very pro-union president and Republicans in Congress don’t currently have the numbers to cause damage, there are several conservative corporate lobbying groups and right-wing organizations that have set their sights on taking down the power of the union, and almost all are affiliated with a man named Leonard Leo.
He has been called the “most powerful person who almost no one knows about.” Leo is the co-chairman of the Federalist Society’s board of directors and the supervillain responsible for stacking the courts with conservatives, which includes the right-wing supermajority on the current Supreme Court. He assisted Justice Clarence Thomas in his Supreme Court confirmation hearings. He directly supported the nominations of John Roberts and Samuel Alito during the Bush years and served as Trump’s judicial adviser in selecting Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
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He has also built a network, with relatively little public attention, into one of the best-funded and most sophisticated operations in American politics, giving him frightfully large influence as he pushes a broad array of hot-button conservative causes. He was the one who made a single donation to a right-wing foundation of $1.6 billion, which is more than was spent in Trump’s entire 2020 campaign. He is currently focused on creating a new organization that he promises will dedicate itself to “crush liberal dominance” across American life.
The conservatives on the Supreme Court owe their positions to Leo, and he is calling in favors by pressuring them to deliver a death blow to unions in a new case that just started in January of this year. The case, Glacier Northwest v. Teamsters, deals with a 2017 strike at a concrete mixing company. During the work stoppage, Teamsters who drove cement mixers walked off the job but left their trucks running so that the cement wouldn’t harden. Since the company wouldn’t compromise and the cement couldn’t be delivered, it eventually hardened.
Glacier Northwest sued the union for $11,000 of damages, but the highest court in Washington state quickly dismissed the case, arguing that the federal labor law that governs unions and strikes preempts state law and the company’s claim for damages. The National Labor Relations Board correctly assessed that the union did not vandalize the trucks and took every reasonable measure to ensure the cement wouldn’t harden.
There is no question of what the law says, so there is no reason the Supreme Court should have agreed to hear this case as it would completely violate over 60 years of precedent established in the Garmon case of 1959, which ruled that the National Labor Relations Board decides what conduct is protected by federal law. However, we are all painfully aware of what this court thinks about long-standing precedent if it conflicts with their right-wing ideology.
If the Supreme Court overturns Garmon, corporations will be able to hold workers financially liable for any and all cost of a strike. In other words, the next time Starbucks employees strike, the company would be able to sue them for the cost of spoilage and waste, as well as losing potential customers and revenue.
Unfortunately, it is very likely that the court will rule against the unions. Roberts has been remarkably consistent in ruling in favor of whatever benefits corporations, despite what the law says. Under his purview, corporations in this nation have more rights than people. In addition, this particular conservative court has a dismal track record of ruling against unions despite the illegitimacy of the cases against them.
In 2018, in the case of Janus v. AFSCME, all the conservative justices gutted the public sector unions. They ruled that state government workers who are protected by collective bargaining rights cannot collect fees from nonmembers, cutting off a vital and significant source of income for the unions. This completely overturned a 1977 precedent that nonunion employees who received the benefits of a union contract should be required to pay fees, but the rule of law didn’t matter as much to the conservative justices as hurting the political clout of labor.
A furious Justice Elena Kagan wrote, “There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this nation’s law—and its economic life—for over 40 years.”
More recently, in 2021, the Supreme Court conservatives overruled a 1975 California law that prevented farm owners from restricting access to unions to their farmworkers. There hasn’t been one case before Roberts’ court where a union prevailed over a corporation. This current case will be no different, but it will be the most significant—and the most devastating. If Garmon is overturned by this Teamsters case, it would be up to a future Democratic Congress to pass a law returning adjudication of conduct back to the National Labor Relations Board.
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It’s a shame. The weakening of the labor movement is the reason so many workers suffer in the United States. We are the only advanced industrial nation that doesn’t have national laws guaranteeing paid maternity or parental leave. We are the only industrialized nation that doesn’t guarantee workers any vacation, paid or unpaid, and the only highly developed country (other than South Korea) that doesn’t guarantee paid sick days. In contrast, the European Union’s 28 nations all guarantee workers at least four weeks’ paid vacation.
One very useful and widely used statistical indicator regarding labor is the ratio of the minimum wage to median wage—in other words, the level of the minimum wage compared to that of the “average worker.” Among the three dozen industrial countries in the Organization for Economic Cooperation and Development, the United States has the lowest minimum wage as a percentage of the median wage, a paltry 29% of a typical wage. In most developed countries, it is high. In Great Britain it’s 57% and in France it’s 61%. The federal minimum wage of $7.25 in the U.S. has not budged since 2009, although to be fair, several states have increased minimum wages for hourly workers. The annual salary for the federal-standard minimum wage worker is only $15,000 per year, which is below the national poverty line.
It’s not like people don’t want unions. According to a 2018 MIT study, 46% of nonunion workers say they would like to be in a union, up from 32% in 1995. Nonetheless, just 10.5% of all American workers and only 6.4% of private-sector workers are in unions. Corporations tend to come down hard on anyone trying to organize. Every major company has mandatory training videos for managers, like this one from Amazon, that teaches them how to suppress potential unionizing and how to recognize people trying to organize.
Companies employ all kinds of shady tactics to stop unions, from threatening to close to hiring union-busting firms that run anti-union campaigns for their employees. It’s a difficult environment, to say the least. With billionaire corporate owners and hand-selected judges dedicated to destroying unions, it’s amazing they manage to exist at all.
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Yet despite the odds, low-wage workers have been organizing in droves. Support for unions is at a historic high, with the overwhelming majority of Americans saying unions have a positive impact. In fact, an annual poll conducted by environmental, social, and governance research nonprofit Just Capital discovered that the American public, regardless of race, class, or political party, believes that worker rights such as fair pay and workplace safety are the most important issues for companies to get right. Luckily, we finally have a real ally for unions and collective bargaining in the White House.
Democrats can and must do more for the labor movement. We need to push allowing workers to elect representatives to corporate boards so they can have basic protections. We need to make it easier for workers to unionize by preventing wealthy and corporate donors from dominating campaigns. In the next Democratic Congress, we could pass legislation that would ban “captive audience meetings” against unionizing and force arbitration on companies that refuse to bargain with unions in good faith. At the very least, there should be financial penalties for companies that illegally punish workers for organizing.
Supporting labor is critical, not just for our party but for the health of our nation. After SCOTUS’ upcoming ruling, they are going to need our help more than ever.
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