Workers: Stand with Labor
Date: November 7, 2016
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With Barack Obama’s rise as a presidential candidate in 2008, many believed that labor had found a champion in the young senator from Illinois. “If American workers are being denied their right to organize and collectively bargain when I’m in the White House,” Obama said on the campaign trail, “I’ll put on a comfortable pair of shoes myself. I’ll walk on that picket line as President of the United States of the America, because workers deserve to know that somebody is standing in their corner.”

Eight years later, the record has turned out to be much more mixed. Working people have undoubtedly gained from many executive branch decisions. However, apart from these limited actions, a pattern of passive support from the White House has shown that unions are seen as just another interest group in the Democratic coalition, rather than as a vital force in moving forward a progressive economic agenda.

If wage growth is to become a reality again for most working families and income inequality is to be reversed, the next administration must go beyond trying to appease unions with limited administrative reforms. And organized labor must be clear and united in its policy demands. Although individual unions will continue to have policy needs that are specific to the sectors in which they work, they must be willing to look beyond these short-term political asks and instead focus the attention of politicians on reforms relevant to the existential challenge facing labor: organizing rights. As long as these rights remain just another item on a laundry list of goals, and as long as the existing framework for collective bargaining grows increasingly incompatible with the demands of the modern economy, a broader social democratic agenda will remain out of reach.

For working people and their advocates, there is no doubt that the Obama era has been a dramatic improvement over the presidency of George W. Bush. For a movement that’s fighting for its life, the political party in power makes a tremendous difference. The executive’s ability to make appointments and set priorities in federal agencies has a significant impact on the lives of working people. Three particular ways in which Obama has had a positive influence are his direction of the Department of Labor, his appointments to the National Labor Relations Board (NLRB), and his use of executive orders.

Bush Labor Secretary Elaine Chao used her cabinet position to aid employers in national-level labor disputes and to roll back enforcement of federal workplace safety standards. Obama appointee Hilda Solis, in contrast, took an aggressive and high-profile approach to penalizing companies for safety violations. She was also responsible for rolling out the $67 billion in workforce programs provided by the American Recovery and Reinvestment Act, including the extension of unemployment benefits to 34 million Americans, education and job training for nearly 40 million Americans, and the direct placement of nearly 700,000 workers into new jobs during the depth of the recession. Furthermore, Solis put wage theft high on the list of Labor Department priorities, hiring 300 new wage and hour investigators and securing nearly $313 million in back wages for 517,000 employees by July 2011. In 2012 alone, her labor department recovered $280 million in unlawfully withheld wages—a historic record. This progress has continued under Solis’s successor, Tom Perez.

Second, President Obama has ushered in important changes at the NLRB. Under Obama appointees Lauren McFerran, Kent Hirozawa, and General Counsel Richard Griffin, the board has authorized unfair labor practices complaints from workers at franchisees and subcontractors against the “client” corporations, such as McDonalds, which are actually calling the shots. In December 2014 the board also used its rulemaking powers to make union elections shorter and fairer—limiting the time employers have to mount sustained captive-audience intimidation campaigns. Compare these to what legal scholar Julius Getman refers to as “the malevolently anti-union Bush labor board,” which excluded greater numbers of workers from federal protections, limited picketing and other organizing tactics, and allowed unions to be targets of racketeering lawsuits from employers.

Third, Obama has used his executive procurement powers to begin raising the wages of government contractors, despite a recalcitrant Congress. In February 2014, the White House issued an executive order raising the minimum wage for federal contractors to $10.15 an hour. He followed this up with and executive order that banned federal contractors from discriminating against workers on the basis of sexual orientation or gender identity, and, on Labor Day 2015, another that provided up to seven days of paid sick leave for federal contract workers.

Late in his presidency, Obama has also made more active use of his bully pulpit to defend unions. “Labor unions were often the driving force for progress,” he said during a White House summit of labor and community leaders in October 2015. “The bottom line is, as union membership has fallen, inequality has risen. . . . And I believe that when folks attack unions, they’re attacking the middle class.”

While these actions all show the benefits of having a sympathetic administration, they also demonstrate why friendliness to labor isn’t enough for unions who need once again to expand their membership. Unions cannot simply elect friends; they need champions. And on many of the issues fundamental to labor’s rebirth, the Obama Administration has fallen short.

Most notably, the AFL-CIO’s main legislative goal—the Employee Free Choice Act (EFCA)—was sidelined during the Obama years. There is some debate about how helpful it would have been for President Obama to take a stronger leadership role in pushing EFCA, given the dynamics in Congress. But even after Democrats in the Senate crafted a weakened version of the policy in order to secure additional votes, the White House held back from intervening on labor’s behalf. “The compromise had a shot at winning all 60 Democratic votes,” wrote journalist Harold Meyerson at the time, “but Obama and Senate Majority Leader Harry Reid asked them to wait” until other Administration priorities had passed. After the 2010 midterms, any hope of labor law reform died.

The failure of EFCA continued a trend that has persisted under Democratic Presidents for at least 50 years. When organized labor has put forward legislation to establish itself as a legitimate steward in the American economy, and to reverse businesses’ power in undermining collective bargaining, even ostensibly sympathetic administrations have not come through with wholehearted support. These Presidents have placed labor low on their list of priorities and have chosen to invest their political capital elsewhere. Therefore, even while Democratic Adminstrations have helped unions address short-term needs, they have failed to take actions that would allow the movement to rebound and grow over the long term. As a result, collective bargaining in the United States is in danger of becoming extinct.

In the face of aggressive right-wing attempts to undermine bargaining rights, the executive response has been simply inadequate. When public-sector unions came under attack in Wisconsin in 2011, rather than having the President reach for his tennis shoes, the White House demurred. “A lot of states in the union are dealing with fiscal issues, big problems in their state budgets that need to be addressed,” press secretary Jay Carney said. “They need to act responsibly, tighten their belts, live within their means.” This ambivalence symbolized what The New York Times called the President’s “tricky balance between showing solidarity with longtime political supporters and projecting a message in favor of deep spending cuts to reduce the debt.”

On trade policy, the President has taken stands directly at odds with unions, continuing the promotion of neoliberalism that has been the hallmark of Democratic administrations since the Clinton years. In the last two years, Obama has aggressively pushed two multilateral investment treaties, the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership. The AFL-CIO charges that the TPP will cost the American economy more than 300,000 jobs in the manufacturing sector alone, adding to the extensive damage that has been inflicted since the North American Free Trade Agreement was passed in 1992. According to the Economic Policy Institute, “More than 5 million U.S. manufacturing jobs were lost between 1997 and 2014, and most of those job losses were due to growing trade deficits with countries that have negotiated trade and investment deals with the United States.” This neoliberal trade regime has also exacerbated the trend of offshoring service positions, such as call centers and information technology departments, impacting employees far outside of manufacturing sectors. If approved by Congress, the labor federation argues, the TPP will put downward pressure on wages across the economy, yet the Administration has bucked labor pressure in an attempt to secure the trade deal.

If the next administration wants to reestablish a durable foundation upon which to rebuild the middle class, it will need to reorient its attitude toward organized labor. This means treating unions as key partners in advancing a social democratic vision—a constituency both to mobilize and to follow, rather than another special interest to be appeased.

Organized labor, in turn, must explicitly articulate a singular expectation from the next administration. The expectation should be that shoring up the freedom of association—covering policies that fundamentally effect unions’ ability to organize new members—will take precedent over the individual sectoral interests of each union.

A winning policy combination must include three points: strengthening organizing rights; clarifying and enforcing the employer of record; and implementing trade policy that extends pro-worker values into our foreign affairs. First, organizing rights. Reforming labor law has been unions’ preeminent goal since the Republicans won Congress in 1946 and began challenging the New Deal legacy. Lyndon Johnson promised labor he would repeal the right-to-work section of the Taft-Hartley Amendments, but after conservative pushback the Great Society went forward without it. Jimmy Carter promised labor he would expand the NLRB to seven members and strengthen penalties for unfair practices. This stalled too, and soon after, political capital was poured into other priorities, including passing the Panama Canal Treaty. Bill Clinton promised to ban striker replacement, but he instead attempted a grand bargain between capital and labor via John Dunlop’s Commission on the Future of Labor Management Relations, which ultimately did nothing to shore up the role of unions in the economy.

Beyond EFCA, there have been a variety of useful policies that would help to restore organizing rights. In 2015, Washington Democratic Senator Patty Murray introduced the Workplace Action in a Growing Economy Act, which empowers unlawfully fired workers to bring civil suits against employers for violations of the National Labor Relations Act, rather than waiting for the creaking machinery of the board to rule years after the fact. Murray’s bill provides for awards of triple the workers’ back pay and covers attorney’s fees for successful suits, while also ensuring that repeat violators would be subject to increasingly steep agency fines.

But more important than any specific policy proposal will be the way labor organizations, progressive activists, and sympathetic elected officials approach the issue of free association. Labor supporters cannot simply do more of the same, introducing a new bill that will be seen as a special-interest priority for unions. Instead, progressive advocates must be clear that they are advancing an economic justice agenda that goes beyond supporting labor—putting forward proposals that show a clear intersection between the interests of racial justice, immigrant rights, and gender equity movements, as well as to all working people, whether or not they are members of unions.

A second key policy priority is clarifying and enforcing the employer of record. In the modern economy, outsourced labor, contingent work, and subcontracting have replaced stable, long-term employment for a large number of workers. These practices are not going to end, but labor law must be updated so that they are not just a means for companies to circumvent their responsibilities to employees. Too often, companies have turned to labor market intermediaries so that they can shift the liability for poor employment conditions—even if the labor being performed is essential to the functioning of their firms. For many employees who work for a franchisee or subsidiary, the identity of their real employer may not be clear. A subcontracted office worker might take day-to-day direction from an on-site supervisor, but receive her paycheck from an outside agency, whose distant management is regarded as the official “boss.” Such confusion about who’s in charge, legally speaking, makes it much more difficult to organize.

All this needs to change. Labor law must be revamped so that major companies cannot suppress organizing through outsourcing and misclassification. Obama’s Department of Labor has already made some progress on this front, issuing a new interpretation of the Fair Labor Standards Act in January 2016 clarifying that wage and hour protections indeed apply to many businesses using outsourced labor, independent contractors, staffing agencies, franchises, or any variety of the “employment scenarios” that proliferate in today’s economy.

Similarly, the NLRB under Obama has begun to experiment with ways of bringing collective bargaining into the new world of fractured employment. Yet solutions to this problem must be more permanent than administrative rulemaking. “Our challenge,” as veteran labor strategist Stephen Lerner argues, “is to figure out who controls our jobs and communities.” In this task, the government can play a critical role.

Trade must be a final policy priority for labor, reflecting a recognition that it doesn’t affect just the manufacturing sector, but rather working people throughout the economy. A new policy must be based on making freedom of association a condition of trade. This is something distinct from mandating a global minimum wage. Instead of pitting advanced industrialized countries against the global south by trying to impose a single wage standard, this policy instead insists that what is critical is the ability of workers in any country to come together freely and negotiate collectively about their conditions of labor.

Neoliberalism mandates that investor interests take center stage in trade negotiations; there is no reason, however, that we cannot insist that labor and environmental protections are just as centrally integrated, benefiting from enforcement mechanisms that are just as strong and carefully mapped out. Although Cold War foreign policy was hardly a model worth emulating, it is noteworthy that extending the right to free association among employees and allowing the democratic election of union leaders were often-stated goals of American foreign policy for decades before the fall of the Berlin Wall. Today, our trade policies can and should be about more than enforcing the patents of pharmaceutical companies and facilitating “labor market flexibility” abroad.

Reestablishing organizing rights, creating a clear employer of record in the modern economy, and extending the freedom of association into trade policy are goals that work together in a critical way, establishing a foundation for addressing the existential crisis facing unions in America. But these three policy goals are not merely unfinished business for organized labor, they are central to the fate of a broader social democratic agenda.

Because securing these policies will require a huge grassroots mobilization, political strategy cannot be entirely divorced from policy goals. If we are to break from the fate that has befallen labor’s policy agenda under Democratic Presidents from Lyndon Johnson to Barack Obama, we must convey how this new policy agenda and social vision connects to a broad-based cry for economic justice being expressed by a wide range of working people in America today.

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