Perhaps the best answer to the question in the title is: If they could’ve, they would’ve. Despite a lot of cheerleading for organized labor as it faces major headwinds from the Trump administration, the fact is the deck is currently so stacked against it and its response is so weak that a sea change is required. The good news is that there’s a chance that could come from potential plutocrat overreach should the Supreme Court upend the unequal peace represented by the National Labor Relations Board.
First, a quick note on US authoritarianism/fascism and unions. The accelerating authoritarianism/corporate fascism we’re seeing in the US is characterized by the plutocrats’ war uniparty, burgeoning police state, ever widening economic inequality, and free speech crackdowns among other symptoms. While it gets a whole lot of attention when Trump is in office, it’s been a long time coming.
Obama led a nationwide paramilitary crackdown on Occupy after bailing out finance and throwing a foreclosure party. Biden oversaw repression of student protests against US-backed genocide. And let’s not forget all the ongoing global abuses of the War on Terror—illegal wars and drone death raining from the skies abroad while homelessness, surveillance, and deaths of despair surge. Our uniparty in the greatest democracy in the history of the world serves the plutocrats and moves evermore rightward to stifle dissent and expand the rapaciousness at home and abroad. Trump is an accelerant in this regard, torching what little remains of the social safety net, speech and due process protections, as well as collective bargaining law.
Despite a lot of optimism about labor leading a countercharge, the fact is it hasn’t, and the argument could be made that despite some successes here and there, as a whole it has actually been losing ground. That’s unsurprising considering how the deck is stacked against it through the courts and money (and the ability of that money to buy politicians).
Coverage of union activity in its current form often feels more like a feel-good story rather than acknowledgment that they’ve constantly been losing ground to a ruthless enemy in a struggle to the death. Similar to coverage of The Resistance abroad, yes, they are on the right side of history, but that road is littered with noble losers.
The facts are that despite US unions currently enjoying a resurgence in popularity, inequality is around similar levels as it was in the run up to the Great Depression. And union members make up just six percent of the private-sector workforce. Why is that?
More people than ever want to join a union but cannot due to employer resistance, weak laws, courts that favor capital, and ineffectual labor leadership. Even with unions enjoying a string of successes winning their elections, it’s still a major uphill climb to get a collective bargaining agreement from an employer.
Okay, that’s a lot of bad news to start this post, but here’s the silver lining: there is the potential for the board to get overturned in blowback from the Trump accelerant effect. And that comes in the form of the attacks on the National Labor Relations Board (NLRB).
Could the Death of the NLRB Be A Positive for Labor?
The Trump administration is seeking to render the NLRB a zombie agency or kill it outright. Even under Democrats it was being kept barely alive—just enough to give workers the illusion of organizing freedom and for Team Blue to claim they’re better than option 2.
The NLRB is an independent agency that enforces U.S. labor law in relation to collective bargaining and unfair labor practices. The National Labor Relations Act of 1935, gave the agency the authority to supervise elections for labor union representation and to investigate and fix unfair labor practices.
The Supremes recently allowed Trump to remove members of the NLRB, even those appointed for fixed terms, which will damage the agency’s ability to function. And the Court’s decision in Loper Bright likely makes it easier to challenge NLRB decisions. With those two decisions, the Supreme Court further broke an institution that was already broken for workers. And they might not be done.
Companies like SpaceX and Amazon are challenging the NLRB’s constitutionality, which will give the Supremes a chance to do further damage or outright kill the National Labor Relations Act of 1935.
Now most everything you’ll read on the NLRB— from labor reporting to scholars of both administrative and labor law— argues that what really needs to happen is to strengthen the NLRB, yet there is currently no viable path to getting there through the pro-war, anti-union uniparty that governs this here greatest country evah on God’s green earth.
Perhaps the best we can hope for is that the Supremes do kill the NLRB, and by doing so, they disturb the uneven peace.
That’s the argument from Alvin Velazquez at the Indiana University Maurer School of Law. He’s speaking from experience. Before transitioning into academia, Velazquez organized low-wage workers for over fifteen years —an experience he says left him with a great deal of despair. It also led him to conclude the following:
I take no joy in saying that I could think of no better way to reform labor law than through the destruction of the NLRA.
Velazquez makes the case that the dismantling of the National Labor Relations Act could create a viable approach for the rebirth of the labor movement because it creates the conditions for strife, disruption, and a new labor insurgency. Bring it on, he says.
Don’t bring it on, says a representative of capital:
Even employer advocates are concerned about returning to primitive labor law. For example, longtime employer lawyer Roger King recently cautioned that employers should not seek the dismantling of the NLRA because doing so would benefit workers and undermine labor peace. He observed that if the Supreme Court somehow ruled that the NLRA was unconstitutional, then “[w]e’ll have the law of the jungle, the law of the streets.”
According to Velazquez, worker power reached its zenith “before [it was] organized into unions” as demonstrated by the strikes, demonstrations, and actions that took place during the worst parts of the Depression. And the US is in a period of pre-insurgency due to high income inequality. The NLRB is the only game in town for getting employers to negotiate, doesn’t do a good job of it, but effectively acts as a sedative for labor.
Here’s what Velazquez envisions:
The Court ruling that the administrative apparatus of the NLRA is unconstitutional would leave a vacuum in labor law, and anger over the death of collective bargaining rights would be widespread. The labor movement and its allies could channel this anger, alongside the deepening inequality in this country, and their remaining resources, to galvanize a new social movement. With enough of a movement, labor could sway discourse from the dead letters of the NLRA to a more moral framework that allows labor to bargain for the common good. Labor could consider using the death of the NLRA to “grand bargain” of labor law as part of a general strike that unions such as the United Auto Workers have declared for May 1, 2028.
…the Court would implicitly communicate workers’ need to demand a new labor law. Revoking the NLRA in such a wholesale manner opens up the possibility of insurgency at the state, local, and national levels. It removes preemption as a barrier to state- and local-level labor innovation.
The NLRA Was Meant to Placate Workers and Eliminate Outlawry
At that moment, then-President Roosevelt was forming policies to bring the United States out of the throes of the Great Depression. He was battling the effects of high inequality and its correlation for fostering authoritarian movements. During that period, the United States was lurching dangerously close to authoritarianism. Authoritarian figures like Huey Long and his “share the wealth” campaign rose to prominence and challenged Franklin Roosevelt’s grip on power from the political left. Not to be outdone, business leaders on the political right schemed to install a what the Washington Post characterized as a “dictator”—retired Major General Smedley Butler—as part of the “Wall St. Putsch.”
These forces required Roosevelt to find a middle ground. Labor leaders like then-President of the United Mine Workers John Lewis presented that middle ground. Lewis testified at a Senate hearing in 1935 that “American labor . . .stand[s] between the rapacity of the robber barons of industry of America and the lustful rage of the communists, who would lay waste to our traditions and our constitutions with fire and sword.”
In other words, he was navigating between two polarizing forces who had different solutions for combatting inequality at that time. Neither side completely won, and instead labor and capital arrived at an accord. Congress passed the NLRA only a few months after the Supreme Court rejected the NIRA. The NLRA carried over Section 7(a) of the NIRA, but the NLRA added sections that (1) created the National Labor Relations Board, and (2) imbued the Board with enforcement powers.173 Roosevelt signing the NLRA constituted a major high point for organized labor. Immediately after signing the NLRA, labor organized millions of workers and eventually reached a union density of 40% or more in the transportation, building trades, mining, and clothing trades fields.
Yet, despite that accord, labor still had to fight tooth and nail to get a fair shake from the act, and in the ensuing decades it was steadily weakened to the point today where the NLRA is more of an impediment for labor:
Over the years, employers have found various ways to stifle worker rights under the NLRA, and labor law has become ossified due to removal from democratic renewal processes. Labor history shows that destroying only the processes by which organizing energy is channeled appears the only way to stifle rights. If the “Red for Ed” teachers movement demonstrated anything, it is that workers will strike even if it is illegal. Organized labor cannot call for the end of labor law due to the fiduciary duties that unions owe to all of their members and due to their own bureaucratic imperatives. The hammer strike must come quickly from the outside to provoke a crisis and a proportionate response—in this case, the Supreme Court’s application of doctrines that are undoing the regulatory state may serve quite nicely.
When Courts Are Abused, Outlawry Follows. Good!
Gains made by labor nearly a century ago (ones that have been methodically stripped away in recent decades) were largely the result of “semi-outlawry” acts, which are workers engaging in organizing activities that are technically illegal but nonviolent.
Labor’s history in the years leading to the NLRA were filled with insurgent-like conditions and industrial violence in which company security guards and local law enforcement were beating organizing workers and sending them to prison.160 The events that pre-dated and led to Congress’s enactment of the NLRA were in response to worker insurgency.
A recent example of semi-outlawry occurred during the Red for Ed campaign as public-school teachers went on strikes in violation of “no-strike” public sector bargaining laws in 2019. In that case, teachers in several states went on strikes that local unions had not sanctioned. They demanded not only higher pay, but also funding increases to support classroom activity, and achieved some of those aims. More of that is needed, Velazquez argues:
…strikes as both political and economic actions can be successful even if they cut against the legal regime…“no labor movement is possible until workers understand and accept the inevitability of labor-management conflict.” Certain demographic descriptions of Gen Z in the workplace indicate that the generation would engage in strike activity or workplace conflict even if the Supreme Court were to gut the NLRA. For example, a recent Forbes article notes that Gen Z values businesses that balance corporate responsibility, social responsibility, and environmental stewardship. Compared to many preceding generations, Gen Z has the most favorable view of unions, even though many of them have not been in a union.186 Gen Z is especially eager to win unions at their workplaces.187 They have also shown an aptitude for engaging in activism in a very different way from previous generations.188 Only time will tell how their aptitude for engaging in activism will respond to the Court’s anticipated rolling back of labor rights and whether it will match any of the activism that occurred after Dobbs189. But one thing is sure: The Court’s interpretation of the NLRA’s severability clause will affect the response of labor and its Gen Z allies in workplaces like Starbucks.
There are a lot of challenges involved. Velazquez lists three.
Risk 1: The Court’s potential action will fail to spark insurgency or backlash.
Counterpoint: What Have We Got to Lose?
…As Reverend Barber points out, discussion of who is poor used to focus on African American and Latino communities. He concentrates on how working-class white communities also suffer under the yolk of poverty. College educated workers, however, are also finding that higher education is no longer an automatic ticket to middle class comfort.289 One only need to think about how the deployment of generative artificial intelligence tools has already transformed and will continue to transform the white-collar workplace.290 The threat of AI turned unions that the public perceived as business unions into organizing forces who were willing to engage in disruptive tactics for 148 days!291 Additionally, one might consider how adjunct professors understand that reality.292 Overall, the widespread growth of poverty creates the potential for new coalitions that can break through some of the culture war fog that is currently dividing the working class.
Risk 2: No New National Legislation Forthcoming Even if There Is Sustained, Widespread Labor Action
This sounds like a sure thing–at least for a good long while. Capital and its Congress would not give in easily. Instead, there would likely be crackdowns by force. A risk that I would add is that Democrats could successfully co-opt any movement and channel the energy into electoral politics with promises that they will enact change once they’re safely ensconced in power. Yet, we don’t need to look far for evidence that they have been nothing but a leech sucking the lifeblood out of labor. Let us not forget:
Employee Free Choice Act (EFCA),295 which Congress failed to pass in 2008 when President Obama took office with a near filibuster-proof Democratic majority in the Senate and a strong majority in the House of Representatives.296 Instead, several Democrats refused to support key parts of the bill.
Labor would do well to swear off involvement in electoral politics and focus all its energy on causing pain for those who elected officials really serve.
Counterpoint: Who Cares?
If this Article is correct that the Supreme Court would have to destroy the entire NLRA due to the Act’s broad language and interlocking structure, then it does not matter that Congress could act, as the Court’s actions would open a road of possibilities at the state level to channel the energy of a social movement. In an NLRB-less world, the states would be able to legislate without fear of NLRB preemption.311 States could, for example, pass their own workplace organizing laws in response to local mobilizations.312 Additionally, due to the NLGA’s protections, workers could engage in recognitional picketing at their employers without restraint as long as the pickets are peaceful, though they would have to continue working around any potential secondary boycott risks.
In many ways, insurgency could lead to a rebirth of state-based labor law including local (city or state) sectoral bargaining ordinances, wage boards, and insurgent behavior in traditionally right-to-work states. This outcome would help position unions not only to regain strength at the local level, but also to serve as institutions that could save democracy at the local and state levels.
That could still be wishful thinking as surely even local governments will face strong resistance from capital not to give in to worker demands, but the assumption is likely that union activity becomes so strong that they have no choice. What of efforts to buy off laborers with piecemeal improvements like, say, a state minimum wage increase?
…an objector might point out that workers are willing to mobilize for a minimum wage, but not for a union when they have a pay raise in hand. If a state can give the relief that workers are seeking, then (1) where would the energy for a major social movement come from…
The answer to this objection lies in how inequality can spur action. While minimum wage increases certainly alleviate the poverty of low-wage workers, increases do not provide a long-term solution to the rampant inequality and related social unrest existing in the United States. As Charlotte Garden points out regarding union representation and its salutary effect on protecting democracy, “[f]irst, union representation helps reduce economic inequality, which is important because economic inequality undermines democracy. Second, unions increase workers’ abilities to have their voices heard and preferred policies enacted.” In contrast, episodic responses to episodic organizing around the minimum wage do not meet these objectives.
Unions can overcome objectors who raise this objection in another way—by focusing on how they give voice to voiceless workers. Part of President Trump’s support is from formerly union, formerly middle-class workers who have lost their status. These supporters have especially raised their discontent and, as Theda Skocpol shows, joined gun clubs and other clubs when they lost their union and their jobs. These are people who remember the benefit that came with a union job.
One would hope, but it’s a long way to there from here.
Risk 3: Unions Struggle with Organization and Financials in Post-NLRA Climate
Third and finally, even if the Court’s actions spark a movement, and Congress or local governments perhaps act in response, that change will come too late because unions would have died in the interim. Money would be a major challenge. As Velazquez points out:
For disruption to have success, labor organizations must be willing to commit resources to organizing workers who have grievances and are ready to take pro-active demonstrable action, and then shift those resources to other states as they gain power in one.196 The reality is that organizing takes resources and plannings. For example, “Local 32BJ allocates between 20 and 30 percent of its budget to organizing. For the last five years, this is around $15 million a year.”197 If the Court strikes down the NLRA as described above, then it will force organized labor into a difficult choice between conserving its resources or spending massively on organizing workers in an uncertain environment using a stream of income that may run out as collective bargaining agreements expire. Organized labor in America has endured two schisms around the issue of committing resources to organizing. The first occurred in 1935 when John Lewis founded the Congress of Industrial Organizations (CIO) in response to the American Federation of Labor’s (AFL) refusal to commit resources to organizing unskilled workers.198 The second came in 2005 when several unions believed that the AFL-CIO was not doing enough to organize new workers.199 Labor should make a massive investment in organizing should the Supreme Court strike down the NLRA to support organizing either through already existing state organizing laws or seeking the enactment of local laws that would not have otherwise been possible due to the preemptive effect of the NLRA.
Counterpoint: There is planning that unions can start doing now in preparation for Day One of no NLRA, and here’s the bigger picture:
Unions existed before the Act gave them legal sanction and continued to exist. In other words, history has shown that organized labor can survive and make gains for workers even when there are no regulatory structures governing labor relations.
Also, people want to be part of something bigger than themselves.
… members of Gen Z (on both political sides) have shown a penchant for engaging in protests and seeking to use collective action to make wage demands at companies like Trader Joe’s, Chipotle, and Amazon. They have engaged in what Michael Oswalt has called “improvisational unionization.” …These organizing campaigns occurred on their own under “hot shop” conditions with little investment (at first) from organized labor, demonstrates that these workers have considered the risks and still decided to move forward with taking workplace action without institutional support.
Furthermore:
The Court striking down the NLRA may make mobilization more feasible rather than difficult for two other reasons. First, Dobbs has engendered a resistance in even more conservative states for stemming the decision’s effects. Dobbs demonstrates that even on abortion, an issue sharply dividing the United States, mobilizing at the state level can affect a movement in a short period of time. In comparison, wage raises and improving employment remain highly popular with the overwhelming majority of Americans.206 Second, the Court’s decision would tear down the wall that preemption created around labor law and thus remove both objective and subjective barriers to a wage- and employment-based social movement.
Strife is an unfortunate, but key component of labor law and labor organizing, and courts have been quelling labor strife and its role for an expanded understanding of labor peace.211 Duff aptly states that “[o]nly the passion engendered by [vigorous union] campaigns will produce a labor movement capable of developing and executing tumultuous economic weapons. . . . The potential for the creation of tumult is the sine qua non of a bona fide labor law.”
Velazquez’s theory might rest on a few hypotheticals—that the Supremes do indeed cripple the NLRA and that it will spur a movement—but it just might be the best shot labor has.
This article is a good portrait of this historical moment in the United States. There are alternatives.
First, and I’m never going to find the article in the Naked Capitalism archive, someone, possibly Rob Urie, wrote an article pointing out that labor law is always behind the current arrangements or current tensions. Labor law lags. The unions have to force the issue, which will then bring about changes in the law.
Second: Relying on the Supreme Court of the US, featuring various poltroons and time-servers, has always been a disaster for labor and unions. The reasons liberals like to hang on every word of the U.S. Supreme Court is that doing so means that nothing will happen.
Hmmm. SpaceX. Amazon. How curious!
Strikes. Legal or illegal. Workers have to strike. In an economy now based on rents, in which there are few old-style capitalists left who create new businesses, and in which many of the so-called innovations are simply new distribution systems (Twitter/X, Google, and Amazon), withholding one’s labor gets to the center of things.
Strike. Especially at pinchpoints. Cabin attendants should be threatening constantly to strike. As should railroad workers. As should dockworkers. As should warehouse workers.
Strike. Organize the public. And there’s a reason why Taft-Hartley doesn’t allow secondary boycotts — sympathy strikes and boycotts work. I worked on a history book that had a remarkable photo from the US of A in the 1920s, in which the wives of the strikers had organized themselves into a brigade with bats — for breaking the windows at the factory if need be. Break a few windows.
Strike. Frankly, workers have to destroy a company to see their power. The revolution is not a tea party. So if workers take down Uber, are we all supposed to shed real tears?
As mentioned so often here at Naked Capitalism, life expectancy in the U S of A is going down. At the very least, one can get health coverage through most unions. On a bigger level, it’s time for a new deal for USanians.
George Pullman is buried under several feet of steel and concrete in Graceland Cemetery.
This sounds like a job for the Brotherhood of Jack-Hammer and Certified Explosives Specialists Union of America, Local No. 26.
The tech industry overlords now in charge are betting that automation, social media manipulation, economic precarity, and the techno-police state will prevent and/or crush labor actions. It’s why they’re going for the killing blow against unions and the NLRB.
As they say, interesting times
Of course the problem is that America 2025 doesn’t very much resemble America 1935. Capital has solved its union problem by offshoring industries to China. There are still abusive employers like Amazon, but Bezos’ mail order business is hardly the vital economic force that steel mills or the auto industry once were. And while there are the low wage service industries to organize, Democrats have probably helped abusive Capital here by encouraging immigration of the exploitable undocumented.
All of which is to say that to revive unions you would likely need to revive an international labor ideology that the Cold War defeated because that was its purpose. It’s not just about America.
It took a Depression to entrench the labor movement last time. Our clueless president may be arranging one. Meanwhile he is now threatening NYC if they elect a socialist mayor. The Democratic party there may be secretly cheering him on.
None of which is to pooh pooh the above but unfortunately the answer to the question asked may be no.
I remember when General Motors was described as “Generous Motors” for the union pay and benefits it provided.
In the 1970’s a NYC based executive told me a story of union negotiations behind closed doors.
It was described as agreeing on “we’ll give you this, you give us that” in a very business like sense.
After everything was settled, the business executives knew the union leaders would proclaim “We nailed the bastards” when they addressed the union members.
But that was before globalization and much formidable competition surfaced from the world.
In my view, unions depend on being able to restrict the supply of their labor and having employers feel pain.
With the USA political class supporting outsourcing overseas and insourcing of new, sometimes desperate, workers, it is difficult for me to see how unions can be significant.
Financialism is making the situation worse, as debt loaded companies’ interest payments and “Shareholder Value” may push companies to keep lower wage employees paid poorly if the companies can.
And where are the good jobs for people if they quit their current job?
Yours is a good comment. It got me to look something up. The Bureau of Labor Statistics had a release in January covering the known numbers of union members. It offers exhaustive statistics from the household survey. It bears looking over. It seems that half of all union members work for government. The big numbers include teachers and other service workers for the government like police and fire and clerical. The so called private half of workers in unions are dominated by those who are really working for privatized government organizations (in much of the world these functions are nationalized) like Con Edison workers, SC Edison, the LA DWP, the airline and rail industries. One can add the politically supported car industry and steel industry which are so subsidized with tax credits and tariffs etc. that it is hard to consider it any more than tax supported window dressing. So when you look it over the numbers even mentioned in the discussion above are not realistic. They even broke the back of the Farmworkers Union. Cesar Chavez was opposed to mass immigration for that reason. The US, as a practical matter, has no real union movements just as it has no populist movements of consequence. I view government unions of workers providing government services to be only a vehicle to screw more tax money out of the populace which is easy to do. What politician is going to deny the police a raise? I have advised all my kids to get a government job with a government union. All of them have. It is the only option unless you are well connected. If well connected you can go into finance and law and run the government and decide on the next war.
Are there any other pathways than blowing up the NLRA? You can see the arc of how century old innovation to weaken oligarchy is in turn being weakened. Baby and bathwater, yadda yadda.
It happens everywhere. Maybe it would help to specifically dig up what it’s doing to undermine labour. My fear is that the uber-rich have been diligently changing the culture toward obedience and servitude. Getting anyone to rise up faces a pervasive resistance constantly reinforced with media.
Is the culture of self determination slowly vanishing? It’s certainly under attack from both components of the uniparty. Resistance is now channeled into which of these two tools of control you vote for. Almost as if it was planned…
Excellent piece, Conor. Did Velazquez mention the late Staughton Lynd and Solidarity Unionism? Staughton argued for years that the NLRA, at least as interpreted by the courts and the NLRB, was an impediment to labor. The IWW also had little use for the Wagner Act.
Unions became middle class institutions, concerned only with wages, vacations, health insurance and pensions of their members. They quit caring about the conditions in society generally, and unsurprisingly, those not members of unions quit caring about unions or became overtly hostile to them. Unions practicing solidarity unionism would return to being revolutionary organizations, like the CNT in early 20th century Spain, who would eschew associating with those Uniparty politicians, and instead focus on organizing for something more than an extra 3-day holiday.
It won’t be pretty, but our current desperate circumstances aren’t pretty either. Blood will flow just as it did in the Battle of Blair Mountain, the Battle of Flint and the Battle of the Overpass. As the hardened CNT member explained to the neophyte in the movie, Libertarias, “It’s a revolution, not a fiesta.”