Labor Law vs. Labor Organizing

US labor law largely functions through a system of enterprise bargaining: workers form new unions or join already existing ones to have a voice in determining their working conditions, workplace by workplace, shop by shop. Once management recognizes that workers have unionized, the two sides must bargain their first collective bargaining agreement or union contract. US labor law, as established by the NLRA and furthered by public-sector labor legislation with differing systems for local, state, and federal workers, thus creates a piecemeal, patchwork system. 

Rooted in the nation’s zero-sum, winner-takes-all system for electing politicians, where one side wins an election and one side loses (as opposed to alternatives like proportional representation), the current NLRA system creates strong incentives for employers to fight tooth and nail to bust unions: if you do not control your labor costs through suppressing workers’ organizing rights, your competition will undercut you and drive you out of business, before any of the other enterprise’s workers take a step toward unionizing. 

The ways bosses fight workers unionizing are shameful, as the whole country saw in Amazon’s recent threats to workers attempting to organize in Bessemer, Alabama. The Bessemer campaign is illustrative of the current law: Amazon “challenged” the ballots of employees that should have been eligible to vote — and who the union claims were voting in their favor. 

If the union had instead turned to take direct action, four old tried-and-true tactics for pressuring employers are also illegal under current labor law: if they collectively lessened the brutal pace of the warehouse (a slowdown), or walked off the job and picketed for Amazon to recognize the union (a recognitional strike or picket), or struck across multiple, nonconsecutive days (intermittent strikes), or asked other unions to strike Amazon’s supply chain (a secondary or solidarity strike), they likely would have been legally fined.

The PRO Act would include far more protections of organizing rights (for example, accurate lists of eligible voters for union certification elections and a lifting of the current ban on picketing to demand union recognition) and the strike actions listed above, and create mandatory first contract arbitration and employer deterrence with steep financial penalties toward companies and specific managers who violate the law. Yet the 2021 PRO Act does not have anything to say about the enterprise bargaining system itself, so the incentives to more creatively union bust remain. If workers cannot control bosses’ behavior, what can workers decide and implement? 

Labor law and labor organizing, while related, are distinct. Even without the substantial legal reforms to freedoms of speech and association at work offered by the PRO Act, workers and their unions can always control their organizing strategy. The American belief in freedom of contract, so often wielded from above against those below, offers pathways beyond the difficulties in increasing union density and coverage that stem from enterprise bargaining. 

Internationally, other labor movements have won alternative legal systems of labor relations. In particular, strong labor organizations have won sectoral bargaining in several different forms, where workers and their unions bargain with employers and their associations across entire industries regionally or nationally (for example, auto manufacturing, health care, and education). 

Much recent debate has focused on sectoral bargaining, and proposals for such a system have come from conservatives and progressives. Gig economy stalwarts Uber and Lyft are attempting to create a separate legal category of employment to avoid minimum labor standards, using the term “sectoral bargaining” as a cover to co-opt unions as vehicles of worker empowerment by offering slightly higher wages and union leadership a place at the table, all while undercutting already existing labor standards set by the Fair Labor Standards Act of 1938, such as the hourly minimum wage, the forty-hour workweek, and time-and-a-half paid overtime.

Sectoral bargaining now exists in Europe (particularly Northern and Southern), Argentina, Brazil, and Uruguay. Systems of sectoral bargaining produce large differences in union density and union coverage rates. For example, only 8 percent of France’s workers are union members but 98 percent of workers are covered by union contracts; Finland has 74 percent union density but 91 percent union coverage. But overall, nations with sectoral bargaining systems usually have higher density. 

Rather than furthering a patchwork system, sectoral bargaining extends the floor set by union contracts to other employers in a given industry, taking wages and standards out of competition, even if those workers have not joined unions in their specific workplaces. 

In the western hemisphere, union density among three Latin American nations ranges from Uruguay’s 22 percent to Argentina’s 38 percent, while union coverage is 60 percent in Argentina and 100 percent in Uruguay through national sectoral bargaining. Union coverage is 60 percent in Brazil through regional sectoral bargaining. Aside from Canada’s strong union density in an enterprise bargaining framework, the enormous gap between union density and coverage between these three South American nations and most other American nations, including the United States, shows the particular strengths of the sectoral model: unions having positive effects on labor standards far beyond their immediate membership, making them defenders of the entire working class at a structural level. 

Why No National Sectoral Bargaining in the United States?

Following a belief in organizing all workers within their industries (industrial unionism), against the American Federation of Labor (AFL) focus on skilled craftsmen (craft unionism), the Congress of Industrial Organization (CIO) achieved remarkable gains for the working class through a form of sectoral organizing and bargaining during the New Deal era. A national tripartite (made up of labor, business, and the state) sectoral bargaining system even briefly emerged, driven mostly by unions affiliated with the CIO: the United Auto Workers, United Electrical Workers, United Mine Workers, United Rubber Workers, and United Steelworkers, which had, among others, won national contracts at the nation’s largest employers, such as General Electric, General Motors, Goodyear, US Steel, and Westinghouse. Manufacturers who produced together were organized by unions together. Why would they need the protection of federal legislation, rather than tripartite regulation, if they had struck deals with employers largely on their own? 

In exchange for a CIO no-strike pledge during World War II, Franklin Delano Roosevelt established the temporary National War Labor Board with employer, union, and “neutral” state representatives to bargain for minimum labor standards, including automatic unionization of new workers in the growing defense industries. For example, at General Motors, then making bombers for the war effort instead of cars, all new hires automatically became union members. The bosses were making enormous profits from the war economy, so they accepted the compromise with the unions. They were also exhausted by the enormous strikes and factory occupations of the mid-1930s. 

Under a weak form of sectoral bargaining in a high-production war economy, unions grew from 9 million workers in 1941 to 15 million workers in 1945. From 1945 to 1954, largely private-sector and nonagricultural union density bounced around between 30 and 34 percent, the highest in US history. Class struggle–oriented unionists (especially socialists, communists, and syndicalists) only ever ran unions with 1 million out of the 4 million total full-time members in the CIO labor federation. As only 1 million out of the 15 million unionized workers were in leftist-governed unions, a more transformative, anti-capitalist view of unionism had little power compared to the larger movement, despite their structural importance in mass manufacturing. 

With the death of Roosevelt, Harry S. Truman’s rise to the Oval Office, and the conservative wave that swept the 1946 midterms (a backlash to the United States’ largest strike wave ever, involving 14.6 million American workers), the Republican and Southern Democratic conservative coalition passed the Taft-Hartley Act over Truman’s veto in 1947, weakening the NLRA and unions. Through a combination of unions’ conservatizing, intra-union fights over representation rights, red-baiting attacks on labor, and legislative assaults from the Right, the window for increasing workers’ power was shut. 

Unfortunately, since 1947, bosses’ onslaught against union organizing has been constant, especially in the private sector. Following the merger of the AFL and the CIO in 1955, resources were largely spent on servicing existing members (the servicing model) rather than organizing new ones (the organizing model). As AFL-CIO president George Meany said in 1972, as union decline was drastically accelerating, “I used to worry about the membership, about the size of membership. But quite a few years ago I just stopped worrying about it, because to me it doesn’t make any difference.” 

Under Meany and his ideological heirs, American unions followed narrow business unionist and job-control unionist practices rather than broader sectoral and industrial forms. But that is changeable, as history shows. From roughly 1935 to 1955, in industries like mining, logistics, steel, auto, rubber, and electrical manufacturing, and from 1959 to 1979 in the public sector, we saw enormous national coordination in union organizing, bargaining, and re-bargaining among millions of workers. Outside of those windows, large gains in union density and coverage have been nearly nonexistent, which in turn makes previous gains difficult to maintain. Bosses everywhere hate unions, of course, but their hatred can be overcome if unions become strong enough in structurally powerful industries. 

The increasing automation, globalization, and union busting under the neoliberal era, from the end of the 1970s to the present, led to enormous drops in union density and membership, from 21 percent and 20.9 million in 1979 (the most unionized workers ever in a liberal democracy) to 10.8 percent and 14.3 million in 2020. Union density currently stands at 6.3 percent in the private sector and 34.8 percent in the public sector. 

Consider Ronald Reagan’s infamous busting of the ill-conceived strike by the Professional Air Traffic Controllers Organization in 1981. After having organized all of the Federal Aviation Administration air traffic controllers at US airports, the national, sectoral craft union took thirteen thousand workers out on strike during contract bargaining, disrupting air travel for a demand for higher wages and resulting in Reagan destroying the organization and firing eleven thousand of the striking workers. 

Following Reagan’s lead, bosses and politicians broke many sectoral agreements, such as the Teamsters’ National Master Freight Agreement, which once covered over four hundred thousand workers in the 1960s and now only covers fifty thousand. The UPS National Master Agreement, which covers 243,000 workers, is now bargained separately, a strong incentive for the Teamsters to fight more for their UPS-employed members than those with other employers. Union density in freight similarly dropped from somewhere between 80 to 100 percent for local routes and 60 percent nationally, to 20 percent union density locally and somewhere between 2 and 8 percent nationally.

Where Do We Still Have Sectoral Bargaining in the United States?

Despite significant union density decline and job losses, multiemployer bargaining in classically well-unionized industries such as automaking and longshoring still affects hundreds of thousands of workers and their families. The remnants of centralized bargaining have enormous power in the United States. 

Nationally, in the private sector, the United Auto Workers (UAW) uses a voluntary system of pattern bargaining with the “Big Three” automakers, negotiating a contract with GM first in 2019 and then moving Chrysler and Ford to match it, with the goal of the three national agreements essentially being one, covering 150,000 workers. But the contracts today contain disparities, with the Ford autoworkers and the 49,000 striking GM autoworkers receiving a $9,000 contract ratification bonus while Chrysler autoworkers received $7,000 per person. Regarding domestic job creation and retention, Chrysler set a goal of 7,900 jobs, Ford 8,500, and GM 9,000. 

The UAW’s inability to win union recognition from foreign automakers (including Honda in Ohio), especially in the South (including Nissan in Tennessee and Mississippi, Volkswagen in Tennessee, Toyota in Kentucky, and Mercedes-Benz in Alabama), has drastically limited their previous wall-to-wall union density in the auto industry, weakening their bargaining position and contributing to Big Three autoworker income disparities. Volkswagen closed its sole unionized US facility in Pennsylvania in 1988. Similarly, Toyota closed its only unionized US plant (which was previously GM) in California in 2010 and reopened it as a Tesla factory, now the site of a Tesla worker organizing campaign. 

From 2000 to 2013, union density in the industry declined from 85 to 61 percent (or possibly even to as low as 20 percent, depending on who’s counting). Auto companies will continually seek to undercut one another until and unless the UAW can take wages out of competition by organizing sectorally in order to bargain sectorally. 

Two other important examples on the coasts further show the promise of sectoral bargaining, though on a smaller scale. The International Longshoremen’s Association (ILA) bargains sectorally with the US Maritime Association for a contract on the Atlantic and Gulf coasts, covering 14,500 workers across fourteen East and Gulf coast ports through which 95 percent of East Coast cargo flows. Across the nation, the International Longshore and Warehouse Union (ILWU) on the Pacific Coast has been re-bargaining coastwide since 1934. 

Now the ILWU represents around sixteen thousand longshore workers and bargains with seventy employers across twenty-five Pacific ports in Washington, Oregon, and California. The ILWU has had to continually fight for survival because they pose such a strong threat to capital commerce (12.5 percent of the nation’s GDP goes through their ports), and also because they are far more socially progressive than many other organizations of their size, notably closing the coast during last year’s anti-racist, anti-police-brutality uprising. 

Nevertheless, without new membership drives, their power will remain limited. With the recent Suez crisis of the Ever Given ship blocking 12 percent of global commerce, demonstrating to workers all across the world the importance of choke points, what could the longshore unions accomplish for social and economic justice with an increase in members, national coordination, and (eventually, following those other two) increased legal protections? With automation and containerization shrinking employment in these industries unionized decades ago, can workers in growing sectors of the economy also use their collective power to have sectoral bargaining? 

Although well below the union density in the auto and longshoring sectors, contracts won in the care and service industries also cover a huge number of workers. The Service Employees International Union (SEIU) bargains, in coalition with multiple locals of three other international unions (IFPTE, OPEIU, and UFCW), with the massive Kaiser Permanente health care system, recently ratifying their contract that covers eighty thousand workers nationally. Also in health care, 1199SEIU bargains a central contract with the 109-member multiemployer League of Voluntary Hospitals and Homes, covering around eighty thousand workers in downstate New York and neighboring areas. 1199SEIU then works to match the contracts of its hospitals that are not party to the League agreement. 

On the entertainment and hospitality side of the service industry, mostly across the Las Vegas Strip in Nevada, the Culinary Workers Union Local 226 (UNITE HERE!) bargains one contract for fifty thousand workers from 178 countries, creating middle-class homeowners in what is typically a nonunionized, low-wage industry. Notably, the Culinary Union has more than tripled in size during the era of national union decline, growing from eighteen thousand members in 1987 to sixty thousand members today. 

Similarly, the New York and New Jersey Hotel Trades Council (HTC), largely run by the Hotel, Restauto erant and Club Employees & Bartenders Union, Local 6 (UNITE HERE!), bargains one contract covering twenty thousand workers that sets the pattern for another nearly twenty thousand workers at over three hundred establishments, creating 75 percent union density in New York City hospitality. The HTC is multiemployer and multiunion, with locals from seven other unions bargaining together (IBEW, USW, SEIU, IUOE, OPEIU, Painters, and a small independent union). Enormous wins from strategic organizing and bargaining remain possible.

Sectors where workers labor under legal regimes other than the NLRA offer examples of national bargaining without sectoral bargaining. Under the terms of the Railway Labor Act of 1926, unions in the railroad and airline industries are encouraged to bargain national (and, for airlines, international) agreements. The lack of national coordination between US unions has led to many unions organizing in the airline sector on either a craft basis (pilots, air traffic controllers, flight attendants, and equipment installers, and including several smaller independent unions) or an industrial basis (with the Communications Workers of America, the Teamsters, the International Association of Machinists and Aerospace Workers, the International Association of Sheet Metal, Air, Rail and Transportation Workers, and the Transport Workers Union representing an enormous number of airline workers). A recent SEIU and UNITE HERE! wave of unionizing contracted airport workers, rather than direct airline employees, continues this trend of fragmentation, though victories must be celebrated. 

In the public sector, where union density remains highest, federal workers, state workers, and local workers, especially teachers, bargain sectorally: nationally for federal workers and regionally for state and local workers. Recent examples include the United Federation of Teachers’ contract covering 90,000 workers in New York City schools, the United Teachers Los Angeles’ contract covering 35,000 workers, the Chicago Teachers Union’s (CTU) contract covering 25,000 workers, the SEIU Local 73 contract bargained in tandem with the CTU covering an additional 7,500 workers in Chicago Public Schools, and the Denver Classroom Teachers Association contract covering 5,300 workers. While the educators share a single local government or school board employer, they decided not to focus on individual schools. As these teachers’ unions realized that their strength was in mass unity, they pushed to ensure that bargaining occurred at the districtwide and citywide levels. Public education thus remains both an extraordinary public good as well as an example of union power, even during an era of decline.

In higher education, the contract bargained by the California Faculty Association at the California State University system contract covers 25,000 workers, the Professional Staff Congress at the City University of New York contract covers 30,000 workers, and the United University Professions at the State University of New York system contract covers 35,000 workers. Exemplifying the divisions endemic to the dominant enterprise bargaining system, nineteen different unions representing over 77,000 out of 185,000 workers at the University of California system bargain fourteen separate systemwide contracts and sixteen individual campus-specific contracts across ten campuses, and the UAW just filed for union recognition for 17,000 student researchers across the entire system. To become sectoral, unions must mend these fissures with solidarity: attending each others’ meetings and creating joint platforms and joint picket lines, as the UC Union Coalition does, with an eye to eventually changing the law (which has always followed mass action).

This patchwork organizing creates an enormous amount of unnecessary bureaucracy to gain recognition, bargain first contracts, and re-bargain in the future. However, unions can formally organize and informally bargain together, as the CTU and SEIU Local 73 have recently shown, regardless of legal specifications. Even where unions are strong internally and at particular workplaces, as with the contemporary UAW in auto manufacturing, they are not strong in cities, states, or nationally without a sectoral organizing and bargaining strategy. 

Three final examples from other industries (the postal service, film, and professional sports) show that workers can use their structural power to win and maintain sectoral contracts. The single largest example of sectoral bargaining is the United States Postal Service, the employer with the most unionized workers in the United States, which bargains national contracts with the American Postal Workers Union covering 200,000 workers, the National Association of Letter Carriers covering 205,000 workers, the National Rural Letter Carriers Association covering 131,000 workers, and the National Postal Mail Handlers Union covering 43,000 workers. 

Postal workers rose up, struck together, and nationally halted the mail service for eight days in 1970, winning wage raises and legal protections for collective bargaining, with five of the eight striking postal unions forming the APWU after the strike. What could they all build jointly, especially if they united with the other logistics unions like the Retail, Wholesale and Department Store Union, the Teamsters, the ILA, and the ILWU?

While logistics unions have much structural power, sectoral bargaining exists in areas with similar structural power and immense visibility. To work on productions from major studios like Disney, Paramount, and Warner Brothers, you must usually become a union member by first working on several projects. These unions include the American Federation of Musicians, the Directors Guild of America, the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts (IATSE), the Screen Actors Guild – American Federation of Television and Radio Artists, and the Writers Guild of America, which bargain international “minimum basic agreements” with the employer-side Alliance of Motion Picture and Television Producers (AMPTP). The minimum basic agreements that the AMPTP these unions separately bargain are enormous in length, raising standards for a highly contingent workforce. 

Of these organizations, only IATSE and the Writers Guild of America, East emphasize and celebrate the importance of new union organizing (though the Writers Guild of America, West has shown signs of militancy in bargaining during a recent contract campaign, winning an enormous financial restructuring of screenwriters’ relationships to their agents through a wall-to-wall, rank-and-file bargaining strategy). If they coordinate, it happens extremely quietly. 

Similarly, the fairly small Players Associations of Major League Baseball, Major League Soccer, the National Basketball Association, the National Football League, the National Hockey League, the National Women’s Soccer League, the Women’s National Basketball Association, and others provide high wages and benefits for some of the most famous workers in the world, preventing exceedingly wealthy team owners from undercutting one another with low wages for the many non-star and rookie athletes. 

Historically, because of the enormous wealth generated by the entertainment industry, its workers realized and leveraged their structural power to create a class of millionaire union members and ameliorated many of the largest problems in a casual workforce. And previously, cultural production did enormous work to educate the general population about the benefits of workers standing together by unionizing, assisting the mid-century organizing waves. That these labor organizations still operate as craft unions or, even more regressively, as job control–focused guilds, centering the needs of their wealthy members at the expense of their poorer and casually employed members (the vast majority of professional actors, musicians and minor league athletes), and wielding control of a labor force mostly for bread-and-butter gains almost entirely for their own union members, is an issue. 

Yet the elements of a deep structural, cultural change in labor relations is possible and necessary. The small percent of income toward union dues from millionaire athletes and actors, who are also hurting from the pandemic, if not as much as other unionists, would go a long way toward funding new organizing if solidarity was prioritized. When the major league professional athletes used their structural power to illegally strike for racial justice in 2020, there was wall-to-wall media coverage of workers taking militant direct action to fight for social progress. (The media itself is a growing hotbed of union organizing with the Writers Guild of America, East and the NewsGuild-CWA). 

Why do collective narratives of working people remain largely absent from contemporary sports and media productions? What if the athletes had coordinated their strike with the film industry and longshore unions? What could those strikes have accomplished together by centering solidarity and workers’ power? 

A Future to Win

These strong foundations in education, health care, the postal service, sports, longshoring, and auto manufacturing illustrate that the elements for a successful and therefore transformative national sectoral union strategy are there. If the numbers of workers listed above are even close to correct (1,586,300, or only 11 percent of the national unionized workforce), and the unions were to mobilize just 11 percent of the union members covered by these still large, substantial contracts to organize friends, family members, and strangers, that would create 174,493 rank-and-file union organizers dedicated to furthering the benefits of sectoral bargaining. What could they achieve? How many of the nonunion workers could win higher wages, better benefits, a voice on the job, and democracy at work? Would the nearly 90 percent of nonunion American workers remain that way, or would they vote according to surveys and organize another worker upsurge? 

Large campaigns for union recognition, using NLRB procedures or not, have succeeded in unionizing hundreds of thousands of workers in recent years. Unions, like workers, should never bargain with bosses alone, as the majority do under the NLRA system of enterprise bargaining. In order to ensure an equitable future, sectoral organizing and bargaining through swarming solidarity — using the strengths workers and their unions currently have in the significant industries outlined above — must become the central effort of workers and their unions, above and beyond passing the PRO Act.