Union Growth Will Not Ride on Amending the NLRA

The pandemic-filled years of 2021-2022 have witnessed an uptick in union organizational activity throughout much of the country. Newsroom workers, university graduate students, art museums security guards, and even relatively “autonomous” gig workers are illustrations of activity aimed at establishing new labor-management relationships.

Frequently fueled by sexual harassment disputes involving, for instance, gaming employees and Alphabet workers, they have been induced to band together, though—at least in the case of the latter group—hardly in sufficient numbers to obtain collective bargaining.

And the well-publicized disputes involving Amazon and Starbucks are support for the proposition that some unions are more active than in the immediate past, the latter campaign providing a tentative sign that the last half-century’s union decline has been stopped if not partially reversed. The prominence of young educated people, as in the Great Depression’s union growth, coupled with the most pro-union president in history, combined with the labor shortage has resulted in a substantial increase in NLRB representation petitions and other union organizing activities.

But can this trend continue or is it a fleeting moment? What will determine the next chapter in this story? Here the jury is out and the endgame is uncertain.

False Narrative: NLRA Is Deficient

My judgment is that part of the discussion has been beclouded by a false narrative, i.e., that reform of our fundamentally deficient labor law will provide the next step forward for union growth. While reform of the National Labor Relations Act would enhance a badly needed respect for law in employment relationships, it will hardly reverse labor’s downward spiral.

Labor law is a subordinate factor in the arena of union growth and decline. Though law can provide a symbiosis for union growth as it did in the 1930s, the key here is the commitment of the labor moment itself and its organizing posture.

Consider the following.

First, union protest and organizational activity in 1933 and 1934 antedate the 1935 passage of the National Labor Relations Act itself. Worker protest was a kind of prerequisite for law, not the other way around. Moreover, union membership rolls continued to expand for a decade in the teeth of the anti-union Taft-Hartley amendments. The content of law did not matter.

And, once union decline began in the 1970s, the two most pro-collective bargaining NLRBs under President Clinton and President Obama hardly staunched the bleeding. No NLRB was more doctrinally aggressive in support of collective bargaining than that appointed by Obama—and never has the board’s injunction procedures been so frequently against anti-union employer campaigns than was the case with the Clinton NLRB. (And President Biden’s NLRB general counsel, Jennifer Abruzzo, is unrivaled in pursuing worker protection interpretation in the law.) These actions hardly moved the union membership needle at all thus far.

Finally, the Agricultural Labor Relations Act covering farm workers excluded from the NLRA, once regarded as a “dream statute” with first contract arbitration long envied by NLRA covered workers, is a shambles with minuscule union representation in California’s 700,000 relevant workforce. The advent of vulnerable undocumented employees particularly from Mexico, coupled with union lethargy, not the law, constitute the explanation.

Though labor has now turned away from the disdain for organizing the unorganized articulated by AFL-CIO leadership so prominent in the 1980s and 1990s, the problem remains.

Union dues monies and resources devoted to organizing are not comparable to those expended by the movement between the 1930s and the 1950s. Dedicated youthful organizational energy, so prominent in the Starbucks campaign, is not yet rewarded with the top union positions.

And the labor movement remains ambivalent toward the new social movements like Black Lives Matter as it attempts to recruit racial minority members. The Staten Island April Amazon union victory is testimony to the significance of rank-and-file organizing, decoupled from union bureaucratization.

True, the law itself cannot be ignored. It is the law which has given graduate students the opportunity to organize and to oblige universities to bargain with them. And the right to strike is prominent among the wide number of legal inadequacies badly in need of legislative fixes. But the law is only relevant to, and not the basis of, organization. The fault does not lie within the stars. Infrequent recognition of this point is the first step toward the renewal enjoyed by labor in the 1930s, 1940s, and 1950s.

This article does not necessarily reflect the opinion of The Bureau of National Affairs,Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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William B. Gould IV is the Charles A. Beardsley Professor of Law, Emeritus, at Stanford Law School and served as chairman of the NLRB (1994-1998) and chairman of the California Agricultural Labor Relations Board (2014-2017). He is author of the book: “For Labor to Build Upon: Wars, Depression and Pandemic.”