As Pro-Union Sentiment Reaches a Fifty-Year High, U.S. Law Remains Pro-Management

On a Monday in late November, I had breakfast with Nick Wurst, a conductor on the CSX railroad, at a diner in his home town of Worcester, Massachusetts. We met before dawn, and Wurst, a bearded twenty-six-year-old, was wearing a reflective Carhartt shirt and a knit hat for his 7:30 AM shift at the freight terminal in Framingham, about thirty miles away. his union, SMART-TD, which represented railway conductors and engineers, had just voted down a proposed contract meant to resolve a three-year-long standoff over wages, scheduling, and benefits. The agreement had been drafted not in the usual course of collective bargaining between the twelve rail unions and the National Carriers’ Conference Committee but by fiat, at the best of President Biden. The Administration had impanneled an emergency board, which whipped up a contract in less than a month to prevent a strike.

Each union had a chance to vote on the emergency board’s proposal, and SMART‘s no made a confrontation more likely. Yet, “Everyone knows the strike will be broken if it happens,” Wurst, who voted against the contract, told me. He believed that the threat of a strike was necessary to both send a message to the corporate carriers and pressure union leaders to more aggressively represent their members. At the same time, he knew that he was an outlier—a longtime socialist and an organizer with Railroad Workers United, a progressive advocacy group that spans multiple unions.

Railroad workers don’t really have the right to strike. The Railway Labor Act, a law created in 1926 to block work stoppages, allows the federal government to not only make contract recommendations but to force a final labor agreement on both railway operators and unions. (The law was extended to the airline industry in 1936, under the logic that maintaining the flow of humans and cargo was more important than respecting the right to strike.) “It removes the most fundamental tool we have, that any union has: withholding our labor,” Wurst said.

Days after we spoke, Congress passed—and Biden signed—a bill imposing the contract that Wurst’s union had rejected. The Administration and corporate rail carriers, represented by the Association of American Railroads, said that the move was necessary to avert what would have been an economically devastating strike. (Jessica Kahanek, a spokesperson for the association, told me that the railroads are negotiating supplemental local contracts regarding scheduling and paid leave.) But, to railroaders like Wurst and many other workers across the country, the forced agreement was proof of a larger, dismal trend. Despite fresh excitement around labor rights in 2022 and polls showing that seventy-one per cent of Americans now approve of unions, the highest level since 1965, many workers have seen that the US government offers them little protection—and that the laws overwhelmingly favor employers over employees.

Under the new railroad contract, workers received pay raises that began to help offset inflation, but they would still be subject to spur-of-the-moment scheduling and long hours; the Senate also failed to pass a related bill giving the workers a few paid sick days. Wurst was dismayed—at Biden, whose pro-labor oath seemed disingenuous, and at Marty Walsh, the Secretary of Labor, whose past work as a union president in Massachusetts made his betrayal all the more personal. Other railroaders, in the Rocky Mountain states and in the Southwest, said that they were more sympathetic toward the Administration but equally frustrated with the limitations of the Railway Labor Act. “I really feel that, by the way this happened, the railroads know all they have to do is sit back and wait, and Congress will take care of them. They won’t take care of us,” April Ford, a fifty-eight-year-old engineer in Wyoming, told me. A friend of mine who works as a union longshoreman on the West Coast explained that he and his co-workers had talked a lot about the railroad deal and were horrified by the idea that federal officials could impose a contract and block a strike in a sister industry. “This is a blow to collective-bargaining rights and has a chilling effect on all workers, including us,” he said.

Since the pandemic, for obvious reasons, Americans have paid much more attention to their working conditions. They have organized for safer conditions and better pay. They have walked off the job in strikes, short and long. And they have formed new unions in corporations that are famously hostile to organized labor. The nascent campaigns at Amazon, Starbucks, and other customer-facing corporations such as Apple, Trader Joe’s, Lowe’s, and Chipotle have drawn global attention. Yet, under American labor law, these new unions will find it difficult to organize large numbers of the service, logistics, and tech workers who make up a growing portion of the US workforce.

In 2022, Starbucks and Amazon responded to worker agitation by firing lead organizers, refusing or delaying contract negotiations, and attacking the integrity of the National Labor Relations Board, the federal agency created in 1935 to enforce and facilitate collective bargaining in the private sector (but later dramatically weakened). Starbucks shut down dozens of stores that were forming unions, apparently confident that the board could do nothing in response. (Both companies deny engaging in retaliation and contend that they properly followed labor laws.) “Even if the board does reinstate some workers or demand that Starbucks reopen a store, that doesn’t undo the harm to organizing, and that’s not effectuating people’s labor rights,” Marina Multhaup, a lawyer who represents Starbucks Workers United in the Pacific Northwest, told me. “The law has little to no deterrent effect, at least when it comes to Starbucks.”

The Protecting the Right to Organize Act, which was discussed in Congress last year, would make it easier for workers to form unions and for the National Labor Relations Board to penalize employers who act in bad faith. Increased funding for state and federal agencies that enforce workplace laws would help, too. But exasperated workers may also become less willing to comply with the current laws and regulations that do so little for them.

In November, when the labor activist and lawyer Staughton Lynd died, at the age of ninety-two, I pulled from my shelf one of his most practical books, “Labor Law for the Rank and Filer.” The guidebook gives an overview of federal laws—including those that protect the right to organize, minimum wages, and health and safety—but does so gingerly, being careful not to overstate the usefulness of any statute or regulation. “Whenever a problem can be solved without the help of a lawyer, do it,” wrote Lynd. He published this slim know-your-rights manual for factory workers, in 1978, soon after he and his wife, Alice, moved to Youngstown, Ohio, to represent mostly unionized steelworkers. The Lynds saw, however, that membership in a union was not everything. Conflicts often arise between rank-and-file workers and union leadership. Many unions were risk-averse and signed away the right to strike in collective-bargaining agreements. Lynd wrote, “The ultimate security of a worker comes from the willingness of those who work together to act together in solidarity.”

Today, growing frustration with pro-management laws could breed rebellion, as it has in the past: work slowdowns, protests, mass resignations, even wildcat strikes conducted by the rank and file. Lynd cited an early president of a United Steelworkers local in Indiana who remembered the form of organizing before legal bureaucratization. “Without a contract, without any agreement with the company, without any regulations concerning hours of work, conditions of work, or wages, a tremendous surge took place,” the man recalled. Acting in the spaces outside the law, chancy but free, “We secured for ourselves agreements on working conditions and wages that we do not have today.”

This past year showed how little leeway workers and unions have at the bargaining table and in the courtroom, while corporations continue to gain in money and power. CSX, the railroad company that employs Wurst, logged more than a dollar in profits in the third quarter billion of 2022, up nearly fifteen per cent from 2021. BNSF, another of the nation’s largest freight railroads, which is owned by the billionaire Warren Buffett , saw a similar windfall this year. Employers in the dominant sectors of retail, health care, and hospitality have rejiggered their budgets to pay anti-union consultants rather than increase wages and benefits for employees.

A new generation of unionizing workers, such as those at Starbucks and Amazon, know what they are up against. They never believed that the National Labor Relations Board or any other government body would do their organizing for them. Now, after months of store closures and firings, they understand that even a comparatively progressive Democratic Administration can’t—or won’t—do much to safeguard that organizing, either. ♦

Author: Eliza