American labor has taken some hard hits in recent years. Since 2012, six more states have passed “right to work” laws, bringing the total to 28. These laws undermine unions by allowing workers to receive the benefits of union contracts without having to pay dues . President Trump’s administrative appointees have issued a raft of anti-worker, anti-union rulings. And most significant, the Supreme Court imposed a right-to-work law on all public-sector employees in its Janus v. AFSCME ruling in June.
Despite these defeats, labor has reason for hope. This spring’s massive teacher strikes in “deep red” states like West Virginia, Oklahoma, Kentucky and Arizona galvanized the public and forced reluctant legislators to increase education funding and teacher pay. With the new school year underway, the strike wave seems to be spreading to “blue” states, with teachers walking out or preparing to in California and Washington. And in early August, voters in Missouri repealed their state’s right-to-work law by a 2-to-1 margin, only the fifth state ever to do so, and the first to do it by referendum.
There is a pattern to these losses and wins — one with broader lessons for labor. When judges and legislators determine labor’s fate, labor loses. When labor takes matters into its own hands, bringing the battle into the workplace and the public sphere, it at least stands a fighting chance.
That doesn’t mean that courts never rule in favor of workers or that legislators never pass pro-labor laws. But historically, such rulings and laws have typically come after mass protests created crises to which elites had to respond.
Take the 1935 National Labor Relations Act (NLRA), or the Wagner Act, the foundation of modern labor law. Although there were labor-friendly legislators like Sen. Robert Wagner (D-N.Y.), for whom the bill is named, such measures got a hearing only because working-class tumult forced labor law reform onto the agenda. The number of workers on strike tripled between 1932 and 1933, then ratcheted up again in the “eruption” of 1934 , when nearly 1.5 million workers struck. Fearing that the country could fall into “political chaos ,” advisers pushed a reluctant President Franklin Roosevelt to sign the NLRA.
It then fell to the Supreme Court to rule on the law’s constitutionality. For decades, the court had used antitrust and contract law to keep unions almost illegal. Most recently it had ruled in 1935 that the National Industrial Recovery Act (NIRA), a precursor to the NLRA, was unconstitutional. Employers assumed that the court would do likewise for the Wagner Act and proceeded to ignore it in anticipation of the justices’ decision. But in 1937, the same court that had struck down the NIRA upheld the Wagner Act, establishing a “fundamental right” to unionize. While the ruling was based on legal precedent, its reasoning was guided by a wave of sit-down strikes that swept through U.S. shops and factories in 1936 and 1937, surpassing the scale of 1934’s actions.
An adviser to National Labor Relations Board Chairman J. Warren Madden, who was preparing to argue in defense of the Wagner Act, suggested to him that strikes “may reinforce your words to the Justices, who . . . may possibly scan the news of tie-ups.”
“The concept may dawn even on the Court,” the aide continued, “that a Government Labor Board is in some measure a necessary alternative to a general labor war.”
Sure enough, in issuing its decision, the court’s majority noted that “collective bargaining is often an essential condition of industrial peace, and . . . refusal to confer and negotiate has been one of the most prolific causes of strife.” The justices deliberating in their chambers could not ignore the mass disruption happening outside their window.
A similar dynamic took hold in the 1960s and ’70s, when public-sector unionization started to pick up. Although many were prohibited from collective bargaining or striking, these workers sparked a massive public-sector strike wave of teachers and nurses, clerical, social service and sanitation workers. In the process, they won wage and benefit increases — and they forced local, state and federal governments to recognize public workers’ right to organize. Perhaps most dramatically, in 1970, postal workers waged an illegal strike against the federal government and their timid union leaders, whose efforts to negotiate decent wages, benefits and working conditions using “proper channels” of lobbying and conferring with management had left workers falling behind.
Starting in New York, the strike soon spread across the country, as 200,000 workers brought mail delivery and much interstate commerce to a halt in the largest wildcat strike in U.S. history. President Richard Nixon — an anti-union, conservative Republican — came down hard on the strikers, declaring a national emergency and mobilizing the National Guard to get the mail moving. Still, he was forced to relent, agreeing to substantial collective-bargaining rights and wage increases as part of the back-to-work settlement.
While not on the scale of 1930s or 1960s actions, recent labor mobilizations show some similarities. Red-state teachers did not wait until Election Day and try to replace school-budget-slashing, anti-union legislators with more sympathetic representatives, who might then negotiate some piecemeal reforms. Instead, they organized in person and online to create mass movements with broad public support, and forced current legislators to respond to their demands. Granted, none got everything they fought for, but they still got far more than they had in years of negotiations. The strikes are also having electoral repercussions. In Oklahoma, 15 of the 19 legislators in the state House who voted against raising taxes to fund education won’t be returning after this election season.
It’s not just teachers who are taking their fight public. Missouri unions did not wait for the courts to rule on their state’s right-to-work law. Instead, they took the question out of the courts and the legislature and put it in the hands of voters. Framing right-to-work not as a narrow union issue but as a broad economic and labor rights issue , unions attracted widespread support: Nearly four times as many people voted to repeal right-to-work as there are union members in the state. In New York, the 18,000-member Taxi Workers Alliance managed to disrupt a Silicon Valley disrupter, using escalating public mobilizations to win regulations that require Uber to classify its drivers as employees for unemployment insurance purposes, cap the number of drivers on the road and guarantee its workers a minimum wage. And across the country, the Fight for $15 movement has used strikes and public pressure to transform a $15-per-hour minimum wage from a pipe dream to policy within a few years.
These successes stand in stark contrast to labor’s efforts to win reforms by legislative or judicial means, which have largely come to naught. Even with Democratic congressional supermajorities and Democratic presidents, as under Jimmy Carter in 1978 and Barack Obama in 2009 , legislatures have stymied labor laws. Meanwhile, the courts have consistently chipped away at labor rights, culminating most recently in the Janus decision.
The lesson for labor is clear: A viable strategy for revival must start with rebuilding labor’s disruptive capacity. This means moving the fight for labor’s future out of courtrooms, boardrooms and legislative committee rooms, and into the workplace and the streets.
That’s because when it comes to political fights, it’s not just about the players; the arena matters, too. Different arenas have different rules about who can play, what resources they can use and, perhaps most important, who and how big the audience is. Generally, the rules in the legislative and judicial arenas are stacked against workers. They privilege specialized knowledge of legal or legislative procedure and, by extension, those with the money to hire such specialists. Audiences are generally small, with few opportunities to intervene. Most important decisions are made in small groups, far from public view.
By contrast, workplaces and public spaces play to labor’s strengths. Labor will never have as much financial, legal or lobbying help as its opponents. But it will almost always have more people. Rather than getting bogged down in technicalities, moving the fight to more public venues allows labor to expand its audience and position itself as a champion of the working class more broadly — not just another narrow “special interest,” as it is often made out to be. It also increases labor’s ability to disrupt business as usual and create the kind of crisis to which political and business leaders must respond, regardless of party affiliation.
Such a strategy is risky. It will not always work. But faced with the near certainty of continued decline if it sticks to “proper channels,” labor might not have a choice.
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