AN ELEGY FOR COLLECTIVE BARGAINING
Jerry Harkins
With all their faults, trade-unions have done more for humanity than any other organization of men that ever existed. They have done more for decency, for honesty, for education, for the betterment of the race, for the developing of character in man, than any other association of men.
––Clarence Darrow
Throughout history, the movers and shakers of this world have fiercely opposed labor unions and everything they have tried to do to make life better for working men and women. In America, anti-unionism has been a dogma of Republican faith ever since Theodore Roosevelt left office. Democrats were better but not by much until the administration of Teddy’s fifth cousin, Franklin D. Roosevelt. FDR came to the presidency thinking that decent regulation would make unions unnecessary but he was quickly disabused of this by Senator Robert F. Wagner. The Wagner Act of 1935 was regarded as labor’s bill of rights and it remained so until the Republicans gained majorities in Congress and passed the Taft Hartley Act of 1947 over President Truman's veto. Truman called it the Save Labor Act and it set off a long, slow decline in the influence of unions that has persisted to the present day.
Admittedly, the Republicans had a lot of help from the unions themselves. Drunk with their new-found powers, some of them became little more than racketeering organizations in open partnership with organized crime.[1] A few made the transition from the socialism of the 1930’s to the Communism of the 1950’s and some began to treat their members in the same brutal way as the laissez faire plutocrats of the Gilded Age. Still others engaged in senseless strikes that threatened economic chaos and seriously disrupted the public. It was catnip to the politicians. The young Robert F. Kennedy went on Jack Parr’s Tonight Show in 1957 and let loose on the corrupt Teamsters Union, saying, “Unless something is done, this country is not going to be controlled by the people but is going to be controlled by Johnny Dio and Jimmy Hoffa and Tony ‘Ducks’ Corallo.” It was far from the mark but true enough to feed the anti-union sentiment building in the country. The movie On the Waterfront finished the job. It was very largely a true story. Political institutions responded ideologically, using the issue of corruption as a cudgel to destroy all unions everywhere instead of focusing on the problem at hand. They were successful. Union membership declined steadily from 29.6% of the workforce in 1953 to 10.3% in 2019. Had it not been for the surprising growth of unions representing public workers and professionals, the decline might have been much worse.
The decline of union power has contributed mightily to the host of the problems confronting America today. Just to mention a few: the stagnation of the incomes of the working and middle classes, a massive exodus of good jobs to low wage countries, the instability of the job market, the high cost of medical care, gaping income inequality and the poisonous political divisions that have resulted from all of these.
The founding fathers of the United States were brilliant and decent men, almost all members of the gentry. They were well bred, well educated, well married and propertied products of Enlightenment thinking who created a nation of, by and for people like themselves. Most were self-sufficient farmers of one sort or another. Their moral and social sensibilities, advanced as they were for their time, were nevertheless blind to some moral standards we see as obvious. Many bought and sold human beings as slaves. The laborers who built the Erie Canal were not slaves but were mostly poor Irish immigrants and were thought of as literally “of no account.” Anyone who was reduced to selling his labor for wages was thought to be inferior which, in most jurisdictions, excluded one from the right to vote. Eighty-seven years later, Abraham Lincoln declared the second American Revolution when, at Gettysburg, he proclaimed that the phrase “all men are created equal” was to be taken literally. His vision is still a work in progress.
The rise of laborers to middle class respectability is a fascinating story of bloody wars, social adaptation and theological controversy. It began in the last decade of the nineteenth century and was heralded by two events. In 1891, Pope Leo XIII published his encyclical Rerum Novarum which is largely a defense of capitalism against the socialistic challenges which had been increasing since 1848. But it also promoted the dignity of labor and laborers and the right of workers to bargain collectively and to earn wages sufficient to provide a healthy and secure family life. The year before, the Sherman Antitrust Act had set out to curb the power of the large corporations but, almost always, it was enforced only against the emerging labor unions. It too endorsed the dignity of labor and the right of workers to organize and campaign for higher wages and better working conditions. This novel idea was reinforced by the enactment of the Clayton Antitrust Act of 1914 which read in part, “… the labor of a human being is not a commodity or article of commerce” and provided that labor organizations were exempt from antitrust laws and had the right to carry out their legitimate objectives. Finally, the Wagner Act guaranteed the right of workers in the private sector to organize unions, engage in collective bargaining and take collective action, including strikes, to promote their objectives.
The Republican Party fiercely opposed every provision of the Wagner Act and its subsequent amendments and, when in power, it enacted a wide range of anti-union laws and regulations culminating in the devastating Taft-Hartley Act of 1947. Among its provisions, Taft-Hartley allows states to pass so-called Right to Work laws. It gave the government the ability to break strikes by declaring 80-day cooling off periods, outlawed organizational picketing, prohibited secondary boycotts, banned strikes by federal workers, restricted political contributions by unions, outlawed pension and welfare funds not jointly controlled by management, authorized employer interference in organizing, denied "economic" strikers the right to vote in representation elections while allowing replacement workers (“scabs”) to do so, allowed management to fire workers for some types of union activity, opened union treasuries to increased scrutiny, and required union officers to sign affidavits that they were not Communists. Most damaging were the Right to Work Law provisions. Twenty-eight states have enacted such laws, twenty-six “red” states and two “swing” states.
A large majority of Americans, currently about 65%, approve of unions but the antipathy of politicians has continued to the present day. In June of 2020, Eugene Scalia, Secretary of Labor in the Trump Cabinet of Curiosities, tried to issue a bizarre rule prohibiting private employee pension plans from considering the environmental, social and governance records of companies in making investment decisions. This in spite of experience showing that such factors are important determinants of corporate performance.
Nor have unions fared much better in the courts. True, the most threatening challenges of conservatives have not always prevailed. The Supreme Court has generally followed the precedent it established in 1958 when it unanimously held, “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech” (NAACP v. Alabama, 357 U.S. 499). Still, it has consistently chipped away at union bargaining power. In 2018, for example, it issued a 5-4 decision overturning its own precedent by declaring that the agency shop violates the first amendment rights of public employees. (An agency shop is one in which membership in a duly elected union is not required to get or keep a job but non-members are charged fees for the services they receive. Prohibiting such fees, of course, encourages workers not to join unions.)
Republicans and the business community have not been the only forces opposed to unions but the combination of political power and money they represent has proven decisive more often than not. Moreover, wage stagnation since the early 1970’s has made major strikes unsustainable for many workers
Clarence Darrow died in 1938 and so did not live to see the labor scandals of the post-war era. His view that unions have done more for humanity than any other institution is a romantic exaggeration but not, perhaps, by as wide a margin as people think. Collective bargaining has benefitted all workers, unionized or not, by establishing standards for wages, benefits and conditions of employment. When unemployment is low and there are shortages of skilled and semi-skilled workers, non-unionized employees benefit from the floor unions are able to negotiate. When times are hard, unionized workers have more protections than their non-unionized peers and any protection the latter do enjoy are almost always the result of union competition.
As the American economy continues to undergo the vast changes wrought by digitalization and the global economy, it is crucial that the interests of workers are represented at the decision-making tables in a meaningful way. This means robust collective bargaining. The alternative is to widen the economic and social disparities currently bedeviling our society.
[1] There is no doubt that corruption was widespread in American unions, especially in the 36 years between the end of World War II and the ill-advised and ill-fated strike by the Air Traffic Controllers in 1981. Much of it involved collusion between elected union leaders and the Mafia which sought and gained control over the management of a handful of union pension funds. By far, the most reputational damage came about as the result of Jimmy Hoffa’s reign in the Teamsters’ Union. But three things should be noted about this. First, Hoffa did an excellent job for his members both financially and otherwise. They undoubtedly would have been happy to give him the Presidency of the union for life. Second, whatever else one thinks of him, he was a dedicated and active Republican and a major contributor to the party. Sentenced to thirteen years in prison, he served five years until the sentence was commuted by President Nixon in 1971. Third, there have been many labor leaders who were also civic leaders, among them David Dubinsky of the Ladies’ Garment Workers, Walter Reuther of the Automobile Workers, John Sweeney of the Service Employees and Albert Shanker of the United Federation of Teachers.
Subsequent Events
The day after this essay was posted, the House of Representatives passed the Protecting the Right to Organize Act (PRO) to protect and enhance collective bargaining. Most importantly, it would virtually eliminate the Taft-Hartley provision allowing states to enact Right to Work laws. PRO would be the first union-friendly legislation since 1947 but it has no chance of passage by the Senate where Republicans are certain to block it by threatening a filibuster. The Republican position was summarized by Representative Virginia Foxx of North Carolina who said the bill, "...is a radical, backward-looking legislation which will diminish the rights of workers and employers while harming the economy and providing a political gift to labor unions and their special interests."
Two weeks later, the Senate confirmed the nomination of Mayor Marty Walsh of Boston to be Secretary of Labor in President Biden's cabinet. The vote was a bipartisan 68-29. This marks the first time in more than 40 years that a former labor leader will head the Labor Department but it probably does not mean that the Republican crusade is over.
On April 9, 2021, Amazon warehouse workers in Alabama voted overwhelmingly against joining a union. However this is interpreted, their rejection suggests that unions generally have an uphill battle in front of them,
