Context Matters More

Those who care about the future of organized labor owe a debt of gratitude to Joe Burns. In this essay, as in his recent book, Reviving the Strike: How Working People Can Regain Power and Transform America, he points to two interrelated problems that have received too little attention amid all of the talk of trade unionism’s growing crisis: workers’ diminished ability to engage in successful collective actions (especially strikes) and unions’ diminished capacity to take wages and benefits out of competition in the private sector. While other labor analysts focus on declining union density figures, the spread of right-to-work laws, the failure of labor law reform, or the rollback of public-sector collective bargaining in states like Michigan as the most revealing measures of labor’s current weakness, Burns puts his finger on a deeper problem. Organized labor’s very survival depends on coming to terms with the trends he outlines here.

There is much to commend in this essay. I am gratified to see how seriously Burns takes historical scholarship and how well he draws on the wisdom of classic texts by Commons, Ulman, Brody, and Barbash, among others, to clarify the nature of organized labor’s present situation. I am encouraged by his determination to look beyond the obstacles to organizing that others dwell on to explore the less understood and yet more intractable problems of mobilizing collective action and attaining leverage in collective bargaining. Arguably, the difficulties unions face in organizing workers today stem more from their inability to strike and bargain effectively than from increased employer opposition to organizing. Private-sector workers have a clear sense of the power dynamics in today’s workplaces, and naturally they wonder whether unions can make enough of a difference in their lives to justify the risks they must take on if they want to unionize.

I am further encouraged that Burns does not resort to the currently fashionable call to “make labor organizing a civil right” (Kahlenberg and Marvit 2012). His desire to revive “a labor movement grounded on firm economic principles” reminds us of an important truth. In the final analysis effective unions must regulate labor markets. To do this, they must not only limit the freedom of employers to treat workers’ labor as a commodity to be purchased at the lowest price. They must also inhibit workers from underbidding each other or exercising their freedom to work in ways that undermine hard-won standards. For these sorts of tasks, the civil rights law approach is less well suited than the solidaristic economism that informs Burns’s thinking.

But, as much as I admire Joe Burns and his perspective, I am not persuaded by his analysis of why strikes have nearly disappeared. According to Burns, “changes in U.S. labor law, both as a result of legislation and court decisions, undermined union ability to utilize [the] essential tools of industry-wide action and stopping production.” Simply put, this argument overstates the influence of labor law on union power and the effectuality of strikes. The correlation between changes in U.S. law and the decline of strikes is more indirect than Burns suggests. In addition, other factors besides the law have played an important role. Not only has law not been the sole solvent of labor solidarity, it might not even be the most important one. Changes in the organization of work, the economy, the structure of corporations, and the composition of the workforce have contributed at least as much to the decline of collective action and bargaining leverage. These factors demand more attention in the sort of discussion Burns seeks to spark.

Consider the relationship between labor law and the power to strike. History suggests that changes in U.S. strike patterns were not directly correlated with changes in the law. The strike wave of the 1930s including memorable conflicts in San Francisco, Toledo, and Minneapolis and the decade’s largest walkout (the 1934 textile strike) predated the 1935 enactment of the NLRA and its protections of strike rights. The Supreme Court’s enunciation of the strike-weakening Mackay doctrine in 1938 had no discernable impact on strike patterns for decades. After the passage of the 1943 Smith-Connally Act, which discouraged wartime strikes, strikes actually increased. Although the 1947 Taft-Hartley Act curbed the power to strike, strikes did not appreciably diminish in its wake. The 1950s was the most strike-prone decade of the postwar era, and 1950s strikes saw workers largely take wages out of competition in many basic industries. The 1959 Landrum-Griffin Act stripped unions of some key weapons, as Burns notes, yet it too did not produce a discernable downturn. Not only did the annual number of strikes hold relatively constant for two decades after the enactment of that law, the average annual number of major work stoppages was slightly higher in the 1970s (289 per year) than it had been in the 1960s (283 per year). ¹

No one can dispute Burns’s argument that postwar changes in labor law did not favor workers and unions. But it is not clear that those changes were decisive in undermining strikes or bargaining power, since workers’ propensity to strike did not decline in direct response to changes in the law. No one can dispute the point that when employers decided to break strikes in the 1980s they were able to use the law as a powerful weapon. During those years, the Mackay doctrine took on a significance it had not previously held as employers used its protections to hire replacement workers and smash walkout after walkout, to the point where they purposely provoked walkouts in order to break unions. This sent the strike rate plummeting down to its present anemic levels. But it was not that law had suddenly turned against workers; it was the context within which the law operated that had changed.

It is to this changing context that we must look to understand what happened to strikes and union bargaining power. Consider the critical years surrounding Ronald Reagan’s breaking of the PATCO strike. If not for a conjunction of developments, Reagan’s action would not have resonated so deeply in the nation’s labor relations. The years between 1979 and 1983 were perhaps the most vulnerable that American workers experienced in the second half of the twentieth century. Inflation and unemployment soared simultaneously in 1979 and 1980; a wave of plant closings erased 2.4 million manufacturing jobs; real wages fell in the heavily unionized manufacturing industry; unemployment hit a postwar high by 1982 of 9.7 percent and did not drop below 7 percent until 1987. At the same time, the deregulation and nondefense budget cutting of the Reagan Revolution frayed the safety net that working families had come to rely on, initiating what Jacob Hacker has aptly called the era of the “Great Risk Shift,” when employers and the state began shifting risk onto the backs of working people, making them feel suddenly more insecure than workers had felt since the advent of the New Deal. During these years the container ship and satellite communications began to shrink the world and propel us into a new stage of globalization. Meanwhile, a significant influx of capital into the financial markets during the 1970s created more volatility in stock prices and put increased pressure on corporations to increase quarterly earnings. Taken together these developments (and others) created a sea change in the expectations of workers and employers alike. It was this overall context that suddenly gave the Mackay doctrine bite, that led so many employers to try to imitate Reagan and so many workers to fear that they if they fought back they would share PATCO’s fate (Hacker 2006). ²

In the end it was the great transformation of the American economy over the past forty years that has had the most to do with undermining workers’ power to act collectively and bargain effectively. During these years the three intersecting revolutions of globalization, privatization, and what could be called “flexibilization” (new production and inventory methods, outsourcing, casualization of employment) have redrawn the playing field every bit as much as the rise of mass production once did. Workers’ organizations have yet to adapt to these changes. They must if they are to survive.

In my view, Joe Burns devotes too little attention to this larger context. Given his work as an outstanding union attorney, it is not surprising that Burns emphasizes the role of the law. Nor is he alone in doing so. Lawyers have become increasingly important to the labor movement during these years when it has been continuously fighting defensive battles on hostile terrain—for the first time, a lawyer now heads the AFL-CIO—and, naturally, lawyers usually look first to what they know best: the law. But I suggest that Burns take his own advice to heart and focus less on the law and more on the “firm economic principles” on which a revived workers’ movement must be built.

It has become a distraction for us to bemoan the sorry state of U.S. labor law. Given the polarized nature of U.S. politics and the institutional roadblocks built into our system, unions simply cannot afford to link their fate to the hoped-for enactment of fairer laws. The time has come for them to look for a way forward that does not depend on legislative action. Joe Burns has rightly reminded us of the indispensible tool that labor must instead rely on: collective action. What the future holds at this point, we cannot say. But I believe we can be sure of two things: first, the forms of collective action that emerge in this century will likely differ from those of the past and will be adapted to the new conditions we now face; second, without the revival of some form of collective action there will be no workers’ movement.