What would it take to reverse the decades-long decline in union density? In the labor world, much of the discussion of this question concerns tactical approaches to winning National Labor Relations Board (NLRB) representation elections, the standard process in the United States through which workers unionize. While discussions around worker power tend to focus on how to run better and more successful union organizing campaigns, we also need to recognize the reality that the NLRB election process is fundamentally flawed.
A mere 1% uptick in union density — the percentage of workers who are union members — would require adding more than a million workers to organized labor’s ranks. Yet, when factoring in the overall expansion of the labor market (which has occurred more rapidly in non-union industries in recent years), as well as the regular loss of union jobs to plant closures or decertifications, actually achieving 1% growth would probably mean organizing far more than 1 million workers. In 2023, in what was called a “banner year” for the labor movement, 99,116 workers were organized in NLRB representation elections (the means of private sector unionization), and 115,551 voted in such elections. Thousands of public sector employees also joined unions. Yet, these numbers are a mere fraction of what would be required even to keep up with labor market growth. Even if unions were willing and able to resource an effort ten times this size (again, the bare minimum required for a possible one percent increase in union density), the legal constraints on new organizing efforts would limit the fruits of such expenditures. Workers who wish to organize unions face significant barriers, including aggressive anti-union campaigns, harassment, and lengthy legal delays by employers. Due to the NLRB's weak enforcement regime, workers have few remedies to address these behaviors — even those that violate labor laws. In addition, the perpetually-underfunded NLRB would not be in a place to process all of those elections, even under a friendly Democratic administration.
https://stock.adobe.com/ - photo by Diki
This is all to say that playing only within the framework of the National Labor Relations Act (NLRA), as currently written, is a losing game for labor. Union recognition and collective bargaining remain the surest path to concrete gains for working people. However, given the fact that the NLRB representation election is a path to empowerment for such a small percentage of workers every year, it behooves the labor movement to find new forms of strategic and organizational leverage.
In a new report from the Center for Work & Democracy at Arizona State University, “Beyond the NLRB: Contemporary Strategies and Practices for Labor Movement Renewal,” my co-authors and I examine contemporary efforts to do just that. The report is organized around five strategy discussions, each with its own illustrative case study, and three additional case studies representing unique “promising innovations.”
In California, a campaign for fast food workers is aiming to create the regulatory conditions for sectoral bargaining between employers, workers, and state officials, allowing SEIU to do for fast food workers what it was able to do for homecare workers in the ‘90s and ‘00s. In Connecticut, a coalition of unions and community organizations is self-consciously applying the strategy behind previous Bargaining for the Common Good efforts, like the 2012 Chicago teachers strike, to new contexts. In Arizona, Arizona Educators United experimented with a new form of rank-and-file organization that drove the 2018 Arizona teachers’ strike, and Healthcare Rising Arizona is using the ballot initiative process to build a new kind of worker’s organization. And in Minnesota, Centro De Trabajadores Unidos En La Lucha has reimagined worker-driven social responsibility to apply to Minneapolis’s construction workforce.
In addition to these more local and state-level efforts, we also cover the Campaign to Organize Digital Employees, which is employing the minority union form to help organize smaller Google contractors and take on the company’s two-tiered employment system. Jobs to Move America (JMA) is using state procurement to raise working standards, by leveraging the resources of union-dense areas to organize workers in anti-union territory. And finally the Emergency Workplace Organizing Committee (EWOC) has created an organizing intermediary that connects workers to organizers and unions.
In each case, our aim is to summarize existing debates and discussions of each strategic initiative and case study, to lay out their successes and limitations, and to assess the conditions under which they could scale or be more sustainable. All of these experiments are seeking to empower workers and redistribute wealth outside of the NLRA framework, rather than simply “raise the floor” for the most precarious workers, as many so-called “alt-labor” initiatives attempt to do. Some are changing conditions in certain industries so as to make the NLRB election process a more feasible one. Many have notable successes to their name and could scale and become sustainable under certain conditions. None offers the key to labor movement revitalization in the United States, and labor is likely going to have to push much more directly against the tactical and organizational constraints of the NLRA to really be successful. But these cases at least point in the direction of a more eclectic and experimental labor movement that is willing to confront its own strategic impasse.
The first strategic initiative discussed in the report is sectoral bargaining, a topic that has received a fair deal of attention recently thanks to scholarly advocates like Kate Andrias, Matthew Dimick, and the Clean Slate for Worker Power project at Harvard University. Unlike enterprise-level bargaining, where each workplace negotiates separately, sectoral bargaining establishes industry-wide standards through negotiations covering all workers in a sector, regardless of their specific employer. While sectoral bargaining bears certain advantages over the form of enterprise-level bargaining that is enshrined in American labor law, such as the fact that employers are less willing to union bust in a situation where their competitors are facing the same labor conditions, the key question for sectoral bargaining advocates is not whether it is an advantageous system of labor relations but how it might be implemented today. The sectoral bargaining arrangements in Europe that such advocates often point to were won by ascendant labor movements in the early twentieth century; today, by contrast, labor imagines its future from a place of weakness.
Despite the fact that national-level sectoral bargaining is not in the offing, there have been some interesting municipal- and state-level efforts, the most successful of which is undoubtedly the Service Employees International Union’s (SEIU) home care worker organizing in the late 1990s and early 2000s. In the cases where it was successful, a change in state-level labor law allowed home care workers — quasi-public sector workers, given their reliance on Medicaid and Medicare reimbursements — to form a union that bargains directly with the state. According to David Rolf, past president of SEIU 775, the home care workers union in the state of Washington, this strategy yielded roughly 750,000 new members of the total 1.2 million that joined SEIU during the years that Andrew Stern was president.
Fibonacci Blue from Minnesota, USA, CC BY 2.0, via Wikimedia Commons
Today SEIU is attempting to replicate this strategy for fast food workers around the country. Their efforts have been most successful in California, which recently established a Fast Food Council, a tripartite wage board at which representatives from business, labor, and government sit. In the case of home care workers, SEIU spied particular conditions under which it might be possible to unite a sector of workers to bargain directly with the state; in the case of fast food workers, they have attempted to implement a certain structure, the Fast Food Council, through which it might be possible to leverage the same. Indeed, the organizers behind the fast food campaign in California understood their aim to be not simply the creation of the council, but leveraging it to create a California-wide sectoral union of fast food workers. This project is still in its infancy, but the vociferous reaction of the restaurant industry against it is some indication that they take their own power to be at stake.
The Fast Food Council is a means of empowering workers outside of the NLRA framework, but many of the strategies and case studies we analyzed in the report sought rather to change the conditions of a particular industry or organizing approach so as to make the NLRB recognition process a more viable one. For instance, in Minneapolis, Centro De Trabajadores Unidos En La Lucha (CTUL) has recently reimagined the use of worker-driven social responsibility in a novel campaign in the construction industry.
Worker-driven social responsibility (WSR) is a strategy that aims to hold corporations responsible for working conditions along their supply chains by establishing legally-binding private contracts between workers and corporate brands. The strategy was first conceived by the Coalition of Immokalee Workers, as applied to raise the working standards of tomato pickers in Florida. Through boycotting and other awareness-raising campaigns, WSR advocates have won Fair Food Agreements with many major fast food companies, raising worker wages and improving working conditions in the tomato fields. The big limitation of WSR is that corporations are only willing to give so much to protect their brand names. Thus, while the Coalition of Immokalee Workers has done a great deal to improve tomato pickers’ well-being, there are clear limits to WSR as a strategy of worker empowerment.
Photo by Working Families Party / CC BY-NC 2.0
However, CTUL has put WSR to novel use in a campaign aiming to chip away at the disparate conditions of Minneapolis’s bifurcated construction workforce, split as it is between unionized workers in large downtown developments and more precarious workers in suburban and exurban projects. In setting up an industry standards council, the Building Dignity and Respect Standards Council (BDR), CTUL took inspiration from WSR in targeting those at the top — in this case, building owners rather than the construction contractors who work for them. In getting building owners to agree to certain minimum standards, however, the aim is not just to improve working conditions at the bottom but to drive out some of the worst low-road contractors altogether. As CTUL found in its previous work organizing janitors, by eliminating some of the worst fly-by-night employers, it’s possible to make a sector more organizable by unions, and they have worked closely with the building trades in Minneapolis to ensure that their efforts not only “raise the floor” for the most precarious workers but also potentially bring those workers into unions as well.
These are just two of the strategies and case studies highlighted in our new report, “Beyond the NLRB.” Again, none of the strategies or organizations discussed in the report have solved labor’s fundamental crisis, nor do any of the strategies discussed in this report offer the path to labor revitalization in the United States. But many have notable wins to their name, having clearly built workers’ power and/or redistributed social wealth in significant ways, and, with financial investments or new conditions for sustainability, could scale to have even further impact. In addition, they all point beyond the typical aims and methods of labor organizing toward a rethinking of worker empowerment in the twenty-first century. It is our belief at the Center that if labor is to take advantage of its present moment of popularity and the great interest in union organizing amongst workers, it must think outside of the box of the NLRB recognition process, if only to make that process a more viable one.
