As we face the largest economic collapse since the Great Depression, it is worth recalling the roots of our contemporary labor laws in the efforts to overcome that crisis. The National Labor Relations Act, which President Franklin D. Roosevelt signed in 1935, encouraged industrial workers to form unions, bargain collectively and, if necessary, to go on strike for better wages and working conditions. Reversing decades of policy aimed at protecting the rights of employers, the new law was premised on the assumption that empowering workers was necessary to stop the vicious cycle of overproduction and declining wages that lawmakers believed was hindering an economic recovery.
It also introduced a concept that we need to remember today: The public has an interest in ensuring workers have a voice on the job. We have seen repeatedly during the current crisis that workers are forced to perform their jobs without protective equipment or safety procedures: In California, nurses who demanded N95 masks to wear while treating covid-19 patients were suspended. Only by protecting their rights to organize and act collectively can we ensure workers are not compelled to choose between their health and their livelihood.
The National Labor Relations Act was essential to combating the Great Depression. Growing unions helped to revive the consumer economy, narrow economic disparities and expand the middle-class in the decades following the Depression.
But there were also significant limitations to the NLRA that grew more glaring over time. Most importantly, lawmakers exempted agricultural workers, domestic workers and public employees from the NLRA. Reflecting the sexist and racist norms of the era, they argued that empowering those mostly female, African American and immigrant workforces would endanger the public’s access to cheap and reliable food, cleaning and other essential goods and services. As Roosevelt stated in reference to government workers, the rights to form unions, bargain collectively and, particularly, to strike, were overshadowed by “the special relationships and obligations of public servants to the public itself and to the Government.”
During the 1960s and 1970s, unions made headway in agriculture and the public sector by pushing for state laws allowing those workers to form unions and bargain collectively, but those gains were limited to states where unions had influence and imposed more narrow limits on bargaining and strikes than the federal NLRA.
Unions also faced a formidable obstacle with the increasingly successful campaign to constrain the rights this law gave to industrial workers. Restrictions on strikes, boycotts and political spending by unions, and “Right to Work” laws, halted the expansion of unions in the South and West, and in industries, such as retail and food service, where they were not already established.
After expanding rapidly in the 1930s and 1940s, union membership stalled and began to decline. First, many employers moved to “right to work” states in the South and West. Then with the rise of automation and the globalization of manufacturing and mining, employers threatened to move jobs overseas or replace workers with robots.
Unions retained enough support to stop an outright repeal of the NLRA, but not the steady defunding and weakening of its enforcement board. Understaffing meant representation elections were delayed for months and complaints about intimidation or firing of union activists could take years to resolve. Employers shown to have fired workers during organizing drives were forced to pay back wages without any additional fines, leading many to conclude it was worth breaking the law to avoid dealing with the union. While the percentage of workers who said they wanted to join a union increased between 1977 and 2017, the proportion of workers who were able to so plummeted from 25 percent to 10 percent.
The evisceration of federal labor law helps explain why protests by front-line workers today have been cautious and short-lived. While several corporations have been accused of violating the NLRA by firing workers who protested unsafe working conditions during the pandemic, they face little threat of penalty even if workers succeed in proving their case. Domestic workers and farmworkers remain even more vulnerable, as in addition to the lack of union protection, they are often undocumented or employed as guest workers with little ability to negotiate or even quit an unsafe job.
State laws allow public transit, sanitation and health care workers to unionize and negotiate for protective equipment and safety measures, but they also impose stiff fines, dismissal and even jail time on workers who go on strike to enforce agreements. New York transit workers have been hit hard by covid-19, with 6,000 falling ill and 41 dying. Yet they had little recourse when the city failed to provide them with masks and other safety measures. “We are supposed to have equipment for us to go out and serve the public even in a crisis,” said a bus driver Ronald Spring. “But we didn’t see any of that happening like it should have.”
Unions can help front-line workers provide essential services without risking their own health and safety. “Any time something like this comes up, I try to help out as best I can,” said Blake Anderson, an Emergency Medical Technician who joined a “strike team” to aid passengers quarantined on a cruise ship in Oakland, Calif. Despite long hours and the danger of contracting the virus, he credited his union with giving him and his co-workers “peace of mind” by negotiating for protective equipment and safety protocols to keep them safe at work and health insurance so they will be “taken care of if we get ill.”
Unfortunately, few front-line workers have that assurance.
Just before the pandemic, the House of Representatives passed a bill to protect workers from retaliation during disputes and union campaigns, and drafted a law to create national standards for collective bargaining by public employees. Yet, neither is likely to be taken up in the Senate. Meanwhile, the Trump administration blocked efforts to extend collective bargaining rights to home health care, gig and franchise workers, and further delayed grievances and union representation elections under the NLRA. After unions succeeded in requiring employers who accepted federal pandemic aid to provide paid sick leave and respect union contracts, Congress exempted workplaces where the majority of front-line workers are employed.
Without strengthening labor laws, and extending them to all sectors, we cannot ensure workers have the power to protect their own health and safety on the job. But history suggests empowering workers can also help to defeat covid-19 and the economic crisis it created. As in the Great Depression, we now have a public interest in giving workers a voice.