US unions are gaining momentum, but outdated labor laws are in their way

Oct 17, 2022

4 mins

US unions are gaining momentum, but outdated labor laws are in their way
Beth Braverman

Beth Braverman is a freelance journalist based in New York

The percentage of Americans at private companies who belong to unions has been falling for decades, with a mere 6% of U.S. private-sector employees covered by a union. But a handful of conspicuous wins by labor activists at companies like Starbucks, Chipotle, and Trader Joe’s have some claiming that unions are ripe for a resurgence.

More than 70% of Americans polled by Gallup this summer said they supported unions, the highest level in 60 years. And interest is continuing to spread. In September, Home Depot workers in Philadelphia filed a petition for what could become the first store-wide union for that chain. It’s hitting the tech industry, too, with efforts underway for unionization by some workers at both Apple and Google.

Filing a petition with the National Labor Relations Board requesting a vote on unionization requires signatures from at least 30% of employees at that location. The agency has seen a 58% increase in such petitions in the first three quarters of this year, when compared to the same period in 2021.

“The recent unionization efforts are important because they are high-profile brands, and the workers there tend to be younger,” says David Madland, a senior fellow at the Center for American Progress and author of Re-Union: How Bold Labor Reforms Can Repair, Revitalize, and Reunite the United States. “So, there’s a chance to see what’s coming or that this portends additional unionization efforts as this generation continues to make the workplace something it wants.”

While some experts are predicting a large-scale revival of a unionized workforce, others claim that the current model for unionization is outdated and poorly equipped to emancipate the modern, gig-oriented digital workforce. The youngest generation of Americans recognize that the modern workplace needs to change, but it’s unclear whether unionization is the most efficient vehicle for them to realize those changes.

Regulatory hurdles

“Forming a union is incredibly hard under our current laws and with the way that the current workplace is set up,” Madland says. “The employers have a lot of power to pressure workers not to join a union. The way our union titles the deck toward employers is unique among the rest of the world.”

Among the biggest headwinds: under current rules, workers vote to unionize on a workplace-by-workplace basis.

While that model worked well for auto workers in the 1950s when there were thousands of employees in any given plant, it’s more challenging for today’s workers who often work at retail or restaurant locations with a few dozen employees at most. (The Staten Island Amazon warehouse which just unionized is an exception, with more than 8,000 employees at that worksite.)

Trench warfare

“Today it’s trench warfare the whole way, Amazon warehouse by warehouse or Starbucks store by store” says Jon Shelton, associate professor and chair of democracy and justice studies at the University of Wisconsin Green Bay and the author of the book Teacher Strike! Public Education and the Making of a New American Political Order. “With each location having to win in the face of all employer resistance.”

Even if those workers win, they don’t have the scale that made unions decades ago so formidable to employers. While politicians — democrats in particular — love to tout their dedication to organized labor, they have done little to change current regulations or practices.

“There have been some comparisons between today’s movement to the big organizing drives of the 1930s, but it’s a little bit more difficult for organizers today,” Shelton says “Labor law isn’t really behind those organizing now. The wins that we are seeing have been in spite of some pretty significant limits to the labor laws.”

Still, experts say that the current administration is the most supportive to unions that they’ve seen in decades. In September, the Department of Labor launched an online toolkit with resources for employees looking into unionization efforts.

The ability of workers to successfully unionize has eroded over the past several decades, Shelton says, with power shifting to the employer. While it’s a violation of civil rights law for employers to retaliate against employees who lead union initiatives, for example, there are no teeth to the penalties for doing so.

Formal complaints about such actions can take months or years, during which time workers typically find a new job and move on.

“The employers know that, so they find trumped up pretexts to fire workers who are organizing,” Shelton says. “Or once workers sign union cards to get through the process of holding an election, the employer pulls out all kinds of stops to prevent them from voting for the union.”

Shelton says employers might engage in explicit or implicit threats or hold workplace meetings to present their case against unions without giving the union equal time to make their case. Or, they give raises or other benefits to those workers who opt not to engage in unionization efforts.

Solutions abroad

Anti-union advocates often argue that the unionization at individual companies will merely undermine the employer’s ability to hire and maintain staff — granting an advantage to non-unionized workplaces.

A look at global labor movements reveals some potential solutions. Scandinavia and other European countries, for instance, have sector-wide bargaining models where policies like minimum wage are set across whole sectors. Such an approach in the United States could benefit both employees and employers, Shelton says.

“We should be making it easier for every worker in every sector to organize,” Shelton says. “But the management style that so many companies have now is not conducive to it.”

There are some signs that such a change could happen here. In California, for example, legislators recently passed a new law that appoints a wage council to determine the base wages and working conditions for the state’s more than 500,000 fast food workers. Screen actors and television writers have also been able to establish industry-wide base salaries and benefits for their members, many of whom work as independent contractors for their employers.

While such efforts have advantages—such as greater employee loyalty and lower turnover—for employers, there are also some drawbacks for corporations.

“Unions do sometimes reduce corporate profits,” Madland says. “But that’s a good thing overall because it’s making the economy more efficient and helping workers boost their wages.”

While Madland and Shelton agree that the smaller-scale efforts at individual stores and locations will likely continue, they also agree that there may need to be structural and regulatory changes before wide-scale unionization efforts gain traction.

“Ultimately we need a federal policy change, but that’s hard to achieve with Congress so divided right now,” Madland adds. “A lot will depend on the economy and the next election.”

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