“This election comes down to one question, which side are you on?” UAW President Shawn Fain said on the first night of the Democratic National Convention. Politically, the choice was clear. “On one side we have Kamala Harris and Tim Walz, who have stood shoulder to shoulder with the working class. On the other hand, we have Trump and Vance. two lapdogs for the billionaire class who only serve themselves.”
Fain’s endorsement—echoed by other labor leaders—comes at an opportune time. Support for unions is at a 50-year high, more than 60 million workers wanted to join a union but couldn’t last year, according to a report by the Economic Policy Institute, and more than 60% support a $15/hr minimum wage—or even $17/hr according to a recent Data For Progress poll. There is potential for dramatic labor gains—both in union membership and wages for all workers. And the Harris/Walz ticket is the logical vehicle for making those gains.
Harris promises to continue in Biden’s footsteps as the most pro-union, pro-worker President since FDR. Like him, she has repeatedly spoken out in support of unions, as well as working behind the scenes, while Walz, a long-time union member, brings a strong legislative record as well. The record-setting job creation of the Biden/Harris administration is a topline emblem of their accomplishments—they helped millions avoid the agony of prolonged unemployment and underemployment that followed the great financial crisis in 2007/8. And the series of spending bills that helped do that all had strong labor protections built into them.
Harris also headed up the White House Task Force On Worker Organizing & Empowerment, which coordinated the first-ever whole-of-government initiative to support workers’ right to come together to improve standards. This involved more than 20 agency heads and Cabinet leaders, it issued more than 70 recommendations and ensured follow-up by publicly tracking progress. An example of what this means is the inclusion of labor leaders in advisory committees at the business-dominated Department of Commerce, as well as a memorandum of understanding codifying collaboration between the Departments of Labor and Commerce.
But the bigger question is not if Democrats are on the side of labor, but how hard they are willing to fight. A parade of other labor leaders raised expectations high. Support was also voiced by AFL-CIO President Liz Shuler, IBEW President Ken Cooper, LIUNA President Brent Booker, CWA President Claude Cummings, and ASCFME President Lee Saunders, citing different aspects of how Biden and Harris had supported workers since 2020, and how Harris and Walz would continue supporting them. But none raised expectations more pointedly than SEIU President April Barrett.
“It is going to be together that we write new rules, to make it easier for all workers to join a union,” Barrett said. “And we are going to end poverty-wage work for once and for all.”
In concrete terms, that means passing two key pieces of legislation: The Protecting the Right to Organize (PRO) Act, which would be the first significant strengthening of labor law since the 1930s, and the Raise the Wage Act which would more than double the federal minimum wage to $15/hour. There’s strong public support for both measures, but Republicans have blocked them in the past, thanks to the filibuster. So being willing to ditch the filibuster — or at least limit or modify it — may prove crucial in the fight ahead.
The choice of Walz as Harris’s running mate raises hopes that Democrats will finally overcome that opposition, with the urgency and focus that he brought as governor. Minnesota Democrats had a similarly narrow window of opportunity after the 2022 midterms when Walz won re-election and Democrats won control of the state senate for their first trifecta in a decade by just 321 votes. While other blue states with far larger majorities have struggled to pass progressive legislation piece by piece, Democrats under Walz passed a sweeping progressive agenda—dubbed the “Minnesota miracle”— encompassing everything from free school lunches and expanded child tax credits to protecting reproductive rights, expanding voting rights and creating a healthcare public option, along with a package of labor protections including paid family and medical leave, and prohibitions on non-compete clauses and captive anti-union meetings. It also strengthened protections for meatpacking workers and Amazon warehouse workers, introduced wage theft protections for construction workers, created a statewide council to improve conditions for nursing home workers, and authorized teachers’ unions to bargain over educator-to-student ratios. Paid leave alone is enough to make Minnesota stand out: a rarity in America, it’s commonplace in the rest of the world. Only a handful of less-developed nations don’t have it.
In explaining the scope of the Minnesota miracle, Walz said, “You don’t win elections to bank political capital. You win elections to burn political capital and improve lives.”
So the Minnesota miracle highlights the need for continued activism of the sort Barrett invoked. “We are going to build a younger, darker, hipper, fresher, sneaker-wearing labor movement. A movement that’s going to be more inclusive and built for the middle class,” she said.
That’s already happening, according to a January report from the Economic Policy Institute: “Unionization among workers of color accounted for the entire increase in the union level in 2023, and Black workers had the highest unionization rate at 13.1%.”
It was largely fast-food workers of color fueling the “Fight for 15” campaign that began in December 2012 who are responsible for lighting the fuse of the current labor movement resurgence. Democrats came close to meeting their ultimate goal of passing a federal minimum wage of $15/hour in 2021 as part of the American Rescue Plan before its inclusion was nixed by the Senate Parliamentarian. In the past, Republicans have quickly replaced a parliamentarian who blocked their tax cut efforts, but Democrats were unwilling to take similar action on behalf of poverty-wage workers.
That was 2021 when the nation was still reeling from the COVID pandemic, and many other things were top of mind. In the aftermath, President Biden did what he could via executive action: he raised the minimum wage for federal workers and contract employees to $15/hr. This raised the pay of nearly 70,000 federal workers and 300,000 contractees.
In 2025, things will be quite different, and the need to raise the minimum wage—“to end poverty-wage work” as Barrett put it—will only be more urgent. The same applies to the other goal she highlighted: writing new rules “to make it easier for all workers to join a union,” which is what the PRO Act is all about. While Project 2025 would weaken unions in multiple ways, the PRO would do the opposite, reversing decades of eroding labor rights. Under Biden, the National Labor Relations Board (NLRB) has already taken significant steps to strengthen workers’ right to organize, but those are vulnerable to court challenges, and changes to the basic law can go further on multiple fronts. Under the PRO Act:
- Employers are required to follow a timely process leading to a first agreement. It uses mediation, and if necessary, binding arbitration.
- Employers can no longer drag out the union election process through endless litigation. Workers and the NLRB set union election procedures.
- Employers are prohibited from forcing workers to attend captive audience meetings where they deliver anti-union messages without allowing the union to respond.
- Limits of workers’ fundamental right to strike are removed: it prohibits permanently replacing striking workers, bans the use of offensive lockouts, and removes prohibitions on secondary activity.
- The NLRB will go to court and get an injunction to immediately reinstate workers who are fired for union activity.
- Employers who violate workers’ rights face civil penalties, corporate officials can be held personally liable, and workers themselves are allowed to sue.
- Forced arbitration agreements—waiving rights to collective or class action litigation—are banned.
- Misclassifying workers as independent contractors—depriving them of workers’ rights under labor law—is itself a labor law violation.
- Employers can no longer use contractors and subcontractors to evade collective bargaining. All All firms that share control over workers are considered employers, who are required to bargain with them
- Even called “right-to-work” states must allow private employers and unions to enter into “fair share” agreements enabling unions to collect fees to cover the costs of bargaining, contract administration, and grievance processes that unions are required to provide for them.
While this list would amount to a sweeping improvement in labor law, it’s not all-inclusive, as explained in a recent article from the Center for Economic and Policy Research, “Workers, Unchecked: The Case for Card Check This Labor Day.” Card check is a quick way for workers to gain union representation. They simply sign an authorization card indicating their support, and once a majority have signed cards, the union is recognized and contract negotiations begin. It’s a quick alternative to holding a certification election, which in current practice gives employers enormous advantages in discouraging workers from voting to unionize.
Card check was allowed under a provision in the 1935 National Labor Relations Act that was removed in the conservative 1947 Taft-Hartley Act. But the Joy Silk decision two years later preserved its use in the absence of a “good faith doubt” about the union’s majority status. The Joy Silk doctrine was followed for 20 years, until an NLRB lawyer mysteriously misrepresented the board’s policy in a Supreme Court case, resulting in the removal of the good faith standard. As a result, it’s become virtually impossible for unions to gain recognition via card check, except in jurisdictions where some state laws support it.
But in 2022, NLRB’s lead attorney, Jennifer Abruzzo, a Biden appointee, filed a brief in the Cemex case, arguing that the board should return to something resembling the Joy Silk doctrine. And in August 2023, the board agreed, giving employers two weeks to file for an election, if they refused to recognize the union based on card checks. This improvement falls short of fully reinstating Joy Silk, much less the original 1935 law allowing card checks outright, and it’s also vulnerable to right-wing judicial attacks. Indeed, Donald Trump’s wealthiest backer, Elon Musk, is pursuing a lawsuit to have the NLRB itself ruled unconstitutional—and with the half-Trump 6-3 conservative supermajority, that threat is very real. In its shadow, reversing the new Cemex standard might be falsely advertised as striking a reasonable “balance.”
As the CEPR article sums up, “Though the PRO Act does tackle some of the worst employer delay and obstruction tactics, the closest it comes to enshrining card check certification is by imposing it as a penalty on employers who fail to abide by tightened election rules.” Thus, it goes on to argue, “Federal lawmakers should move to not only codify card checks as a valid means of union certification but also change the laws that give employers undue standing and ability to interfere in union organizing.”
Another indication of the need for more vigorous action came the day after Fain, Barrett, and the other labor leaders gave their endorsement speeches. On Aug 20, a federal judge in Texas on Tuesday blocked a key pro-worker regulation from the Federal Trade Commission that was due to go into effect on Sept 4.
The regulation, announced on April 23, bans the use of non-compete clauses in employment contracts, a practice that’s used to severely restrict workers’ freedom to change jobs. “Noncompete clauses keep wages low, suppress new ideas, and rob the American economy of dynamism, including from the more than 8,500 new startups that would be created a year once noncompetes are banned,” FTC Chair Lina Khan said in a press release. “The FTC’s final rule to ban noncompetes will ensure Americans have the freedom to pursue a new job, start a new business, or bring a new idea to market.”
It was estimated to increase earnings for the average worker by $524 per year while lowering healthcare costs by up to $194 billion over ten years, and increasing the number of patents by an average of 17,000 to 29,000 per year. But the judge ruled it was “arbitrary and capricious,” and that “the FTC lacks statutory authority to promulgate the Non-Compete Rule.”
The practice of a single trial judge blocking a nationwide rule from going into effect used to be extremely rare, but it’s become commonplace in the Trump era, encouraged in part by a Supreme Court that acts more like an unelected legislative body than a judicial one. So while the decision very likely will be appealed, its fate remains very much in the air.
For 40 years the “Chevron doctrine” meant that courts deferred to federal agencies in interpreting the underlying law they relied on. But in one of many cases overturning precedents recently, the Supreme Court tossed out that standard in June in the Loper Bright decision. Within days of each other, the Supreme Court stripped federal agencies of their authority and power to interpret the law and granted unlimited power to the President by granting complete immunity to prosecution for official acts.
And so it is that the labor movement finds itself involved in some of the most arcane power struggles of our time. But it’s not a new situation at all. From the 1890s through the late 1930s, labor and its allies—some closer than others—repeatedly battled against the power of the courts. Over time different ideas were proposed to limit their power to thwart the democratic will of the people. For far too long those fights of yore have been forgotten, but like it or not, they’re upon us again. By all means, Harris and Walz have been champions of workers’ rights in the normal scheme of things as they have been for the past 40-some years. But when the dust settles after the election in November, do not expect us to be in the normal scheme of things anymore. Bigger fights lie ahead.
In her acceptance speech, Harris said, “We are the heirs to the greatest democracy in the history of the world.” But so long as we let unelected judges rule over us, we are not as great as we should be. There was a time when the labor movement knew this in its bones. That time is knocking on our door again.
