Guest Post: Against Despair

Published December 2nd, 2016 -  - 12.02.166


Kate Andrias is Assistant Professor of Law at the University of Michigan Law School.

This post is part of a series on Labor in the Trump Years.

As others have written, including on this blog, the Trump presidency could be devastating for unions—and for workers generally.  The administration is likely to oppose any increase to the minimum wage; facilitate roll backs of overtime protections; support the expansion of right-to-work, including as a matter of constitutional doctrine; and appoint leaders to the various labor agencies who lack a commitment to enforcing civil rights, worker safety, and wage and hour laws.  Also expected are appointees who seek to eviscerate collective bargaining and organizing rights under the NLRA.

Notwithstanding these and other serious threats, despair is the wrong reaction for several reasons.

First, the election underscored the importance of unions.  To the extent commentators, including some Democrats, had depicted unions as unnecessary relics, the error of that position should now be clear. Worker organizations are key institutions for equalizing power in the economy and in the democracy.  Their decline helps explain the current state of the American economy and politics.  As Jake Rosenfeld wrote here, “[u]nions remain the only set of mass-based organizations that connect working-class Americans to politics.”  Unions are also some of the few institutions in America through which working people can come together across boundaries of gender, race, and ethnicity, to advance their shared interests.  Finally, unions are self-funded membership organizations.  Historically, such civil society organizations have served as critical bulwarks against authoritarianism.

Second, the election revealed that many Americans desire an economy and a politics that better respond to workers’ needs.  To be sure, voters embraced a range of messages, some horrifying, some confounding.  But many voters (and non-voters) expressed dissatisfaction with a government they believe is too responsive to the interests of the elites at the expense of working Americans.  Voters’ frustration should not engender disdain.  Rather it should inspire new efforts to organize workers into unions, along with a deep rethinking of policy commitments—from labor to banking, from antitrust to trade, from housing to education.

Third, while the election results pose a threat to unions, they are not decisive for labor’s future—nor are they decisive for labor law.  The celebrated labor victories of recent years were neither generated by, nor dependent upon, the federal government.  Consider the Fight for $15, the Culinary Union in Nevada, the Justice for Janitors movement, the Coalition of Immokalee Workers, the Chicago Teachers Union, and other successful contemporary worker movements.  Their victories derive from engaging workers in collective struggle, not from federal legislative or regulatory efforts.  To be sure, hostile agencies, legislatures, and courts can undermine the collective efforts of workers, requiring unions to develop new methods of organizing and new ways of funding their work.  But workers have successfully organized in the face of even greater obstacles in the past.

Finally, some of the most promising recent innovations in labor and employment law have occurred at the state and local level.  In particular, the Fight for $15 and allied organizations have achieved substantial changes in minimum wage, scheduling, and sick time laws, including in some “red” states.  These victories are not just new employment statutes; they represent a form of social bargaining through which workers collectively negotiate to raise wage and benefit standards throughout a region or sector using legislative and regulatory structures.  Much can be done to expand social bargaining at the state and local level, even under a potentially hostile federal regime.  This might mean using existing “wage boards” or creating new administrative bodies comprised of representatives from labor, business, and the public to negotiate wage, benefit, and other progressive policy changes that ultimately become part of local law.

In short, the threats are significant.  But the election illustrates the need and the demand for strong worker organizations and pro-worker reforms.  Avenues remain for creative organizing, lawyering, and policy development.

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