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Law Students on Workers' Rights Series

The Attack on Collective Bargaining as a Threat to Workers’ Rights

June 1, 2021

By Clavey Ali Robertson

The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What are the biggest challenges facing workers’ rights in the future?”

Since 1973, worker productivity has shot up; conversely, this corresponds with one of the slowest growing periods for wages in American history. Inequality only increases while our economy continues to be reported as “stronger than ever.” While a variety of explanations can be put forth on this topic, I believe that the root cause of this dichotomy is a decline in unionization. This is accompanied by shifts of capital into the service and financial sectors, which has swelled the ranks of the non-unionized workforce. 

While labor law is attempting to catch up, the massive corporations that employ most workers in America hold incredible amounts of power and influence. Access to unions and collective bargaining is the key to explaining why most modern workers are not able to demand better rights. 

Conservative explanations for the continuing economic crisis involve government over-spending on social programs and bloated, corrupt unions preventing the job creators from truly driving the economy. In reality, American manufacturers have long since left the United States for more “business-friendly” environments in the industrialized periphery. As time progressed, new technologies allowed downsizing even in those unionized industries which could not physically relocate to China or Mexico. Where once 300,000 dock workers toiled in Oakland, automation has whittled that number down to about 10,000. It is not enough to simply relocate capital to more profitable non-unionized sectors; employers ensure their relatively new businesses remain union-free. 

Just recently, an attempt to extend the classification of workers to gig economy workers such as Uber and Lyft drivers, Prop 22, was brought down by a devious and expensive campaign. Mainstream media covered in detail how these companies spent unfathomable amounts of money to prevent the possibility of a union forming for their workers. Anti-union efforts are all too common across the service and gig economies, which cultivate an anti-union political attitude and paint labor regulations as an inefficiency for business. 

Amazon in particular has been a major beneficiary of the coronavirus pandemic, yet they continue to direct income into dystopian anti-worker policies designed to make sure that no unions form. Recently, a major vote in Alabama over unionization at an Amazon facility was defeated by more than a 2:1 margin. It gives pause – if unions are good for workers, why don’t they want them? Yet deeper investigations reveal a horrifying story. From social media manipulation to intimidation and disgusting workplace practices that have been covered in detail recently, anti-worker policies pervade the delivery giant. 

On April 28th, the Nation Labor Relations Board announced that it would be considering overturning the Alabama vote due to evidence presented by a retail union. It is impossible for workers to freely exercise their right to vote under such a coercive workplace regime. Anti-Worker policies are all too common in America today, and they only seem to be worsening despite a revitalization of the labor movement. The relevance of unions to our lives cannot be more apparent in the worsening inequality and gentrification of San Francisco. Unionized workers earn more, have better benefits, and better representation in case of unfair practices by the business. 

A recent paper from the Economic Policy Institute has disturbing findings: 

Employers are charged with violating federal law in 41.5% of all union election campaigns. And one out of five union election campaigns involve a charge that a worker was illegally fired for union activity. Employers are charged with making threats, engaging in surveillance activities, or harassing workers in nearly a third of all union election campaigns. Beyond this, there are many things employers can do legally to thwart union organizing; employers spend roughly $340 million annually on “union avoidance” consultants to help them stave off union elections.

Capital will always follow the path of least resistance to higher profitability, whether that be avoiding labor laws and taxation through flight or a reallocation towards more easily exploited sectors. Only immense legislative and legal power could hope to coral the trillions of dollars that flow around our globalized economic systems. 

Not only are unions fundamental for any kind of success for worker bargaining, but they are an essential part of positive social change. Workers are not just a section of the population; they comprise the vast majority of people, and their treatment defines our ethical code. We cannot look to the rights of the powerful as an example of liberty when workers in our country can expect worse protections than those of most developing and all developed nations.

Reflections from Charles Joseph

The right to bargain collectively remains at the core of many worker protections. As Robertson argues, a decline in unionization and a rise in anti-union efforts hurt workers across the U.S. Similarly, contracts that limit class action rights or force employees into arbitration make it difficult for workers to hold companies accountable when they violate labor laws. Companies steal an estimated $50 billion each year from employees in wage theft. They also discourage unionization through illegal termination and retaliation.

We must both expand our current laws and make it easier for workers to hold companies accountable.

Clavey Ali Robertson holds a bachelor’s degree in U.S. labor history with honors from UC Berkeley. In the fall, Robertson will join UC Hastings Law School as part of the class of 2024. Robertson is the runner-up for the Charles E. Joseph Employment Law Scholarship for the 2021/2022 academic year. Contact Robertson on LinkedIn.

Charles Joseph has over two decades of experience as an NYC employment lawyer. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $140 million for clients.

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