News & Commentary

February 8, 2023

Jason Vazquez

Jason Vazquez is a student at Harvard Law School.

In today’s news and commentary, the U.S. Labor Secretary is reported to be stepping down in the coming days; Biden emphasizes economic dignity in his State of the Union remarks; a new report reveals that unions prevailed in a record number, and proportion, of elections last year; and a conservative Senator pens an op-ed proposing labor law reform.

Marty Walsh is reportedly set to depart from his role as the U.S. Secretary of Labor in the coming days and slated to be installed as the next Executive Director of the NHL Players’ Association, the union representing professional hockey players in the United States and Canada. Although the precise date of his departure remains uncertain, Walsh, according to media reports, currently finds himself in the process of negotiating a contract with the NHLPA. Sources contend that an official announcement of his appointment may come before the end of the week, likely in the wake of Biden’s State of the Union address, which was delivered last night. The Daily Faceoff, the hockey-related publication that broke the news, suggests that Walsh became interested in the position after being passed over as Biden’s next chief of staff.

Several substantial regulatory initiatives remain pending in the Department as Walsh prepares to step down, including one proposed rule seeking to expand eligibility for the mandatory overtime premium and another to revise the definition of independent contractor under the FLSA. Walsh’s exit, which would constitute the first by a member of Biden’s cabinet, would leave Deputy Secretary Julie Su as the acting head of the DOL. Neither the White House nor the Labor Department has yet issued a statement on the situation.

As referenced above, President Joe Biden delivered his 2023 State of the Union address last night, the second such speech of his presidency. Biden’s remarks prominently featured themes of economic justice, or, as he somewhat uninspiringly phrases it, “restoring the dignity of work,” and he insisted that federal law must enable workers to join unions and earn a living wage.

In last night’s speech, Biden claimed that he ran for president “to make sure the economy works for everyone” and “to build an economy from the bottom up and the middle out, not from the top down.” Biden asserted that “for too long, workers have been getting stiffed” and “for decades, the middle class was hollowed out.” Declaring that “workers have a right to form a union,” the President demanded that Congress pass the PRO Act, guarantee all workers a living wage, and expand sick days and paid family and medical leave. Moreover, President Biden, first availing himself of the opportunity to explicitly reassure the American public that he identifies as a “capitalist,” insisted that “the wealthiest and biggest corporations” must “pay their fair share” and proposed a quadrupling of the tax rate on corporate stock buybacks and closing loopholes that enable the superrich to circumvent their tax obligations. Biden asseverated that he would protect Social Security and Medicare, “a lifeline for millions of seniors,” from those congressional Republicans who seek to “take the economy hostage” by virtue of the debt ceiling to slash entitlement spending. Biden discussed expanding access to affordable housing; restoring the Child Tax Credit; making higher education more affordable; codifying abortion protections; and safeguarding the nation’s democratic institutions. The President concluded his speech by proclaiming that he has “never been more optimistic about the future of America.”

In contrast to the Bureau of Labor Statistics’ dismal annual report published last month, which revealed that the rate of unionization among the American workforce fell to its historical nadir in 2022, a deeply distressing development to any labor proponent, Bloomberg Law’s newly released 2022 NLRB Election Statistics report supplies some basis for tentative optimism. The report highlights that unions won more NLRB representation elections in 2022 than in any year since 2005. More specifically, Bloomberg’s report details that unions prevailed in 1,196 Board elections in 2022, up from 764 the previous year; in fact, the 2022 figure exceeded the total number of union elections held in three of the past five years. These nearly 1,200 union victories yielded more than 75,000 new union members, which surpasses the total number of workers organized in 2020 and 2021 combined. Moreover, 2022’s union success rate of 76 percent is tied for the highest on record. Bloomberg Law insists that “[i]f this is the start of a new trend, it could change the game for labor relations.”

Bloomberg’s findings reflect the emerging reality that an overwhelming majority of contemporary American workers, exhausted from enduring decades of increasing economic inequality and experiencing the precarity and exploitation it engenders, desire union representation. Although it may appear unlikely that the labor movement will be able to attain transformative revitalization in the absence of comprehensive legislative reform, the spreading sense of class consciousness embodied in the recent wave of successful union elections surely constitutes a necessary precondition for any potential labor revitalization and offers reason for some cautious degree of enthusiasm.

An article published Monday in Balls and Strikes declares that “a federal judiciary without labor lawyers is a failure.” The article contends that the Glacier Northwest oral arguments “provided a stark reminder of the weaknesses of a Supreme Court with no justices with union-side labor law experience.” The outcome of Glacier Northwest could eviscerate the right to strike, yet as the Supreme Court considered severely curtailing this fundamental right of working people, the article expounds, none of the liberal justices offered a vigorous or compelling defense of the importance of the capacity to withhold one’s labor in order to demand better working conditions. Instead, they “seemed focused on finding an off-ramp to prevent a disastrous result.” There is an acute need for judges with backgrounds in union-side labor law during this pivotal moment for the labor movement, yet Biden has named just one former labor lawyer to the federal bench—Jennifer Sung—bringing the overall number of active appeals court judges with union experience to two of 168, a figure plainly insufficient to withstand the torrent of federal litigation, filed by reactionary think tanks/nonprofit law firms, attacking unions. Given that the House is controlled by Republicans and any major legislation will be near impossible, the article concludes by demanding that Democrats spend the next two years nominating and confirming judges, which must include union-side labor lawyers.

Finally, Senator Marco Rubio (R-FL) published an op-ed in the Orlando Sentinel on Tuesday decrying the decline of organized labor, a phenomenon for which he laid the blame squarely at the feet of “Big Labor.” Rubio’s essay sought to promote legislation he introduced last year, the Teamwork for Employees and Managers (TEAM) Act of 2022, that would substantially undermine, if not entirely eliminate, the NLRA’s proscription of company unions set forth in § 8(a)(2). In his op-ed, Rubio recognizes that American workers are “hungry for greater representation” yet only thirty-five percent of them, he insists, would vote for a union were one available. This discrepancy is ascribable to, Senator Rubio helpfully enlightens us, union corruption, union dues, and union politics. The obvious solution, then (at least in the brain of Marco Rubio), is to “grant American workers the right to organize outside of the official union framework.” Rubio asserts that “Big Labor” does not protect workers’ interests—interestingly, he invokes the example of Congress’s legislative imposition of a CBA upon rail workers late last year in support of that contention.

Rubio’s essay reflects the ongoing efforts of many conservatives to rebrand the Republican Party as a champion of the working class—his op-ed is insightful to the extent that it demonstrates the potency with which organized labor has begun to reemerge into the American collective consciousness and political discourse. Indeed, in conjunction with Bloomberg’s report detailed above, perhaps labor advocates ought to enjoy some tentative optimism if even conservative Republican senators feel compelled to acknowledge the rising tide of labor activism and to embrace, albeit cynically, the American workforce’s demands for a fairer economic order.

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