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News from EPI Corporate power and legal challenges have exploited weaknesses in labor law for over fifty years: Policymakers must make it easier for workers to form unions

A new report by EPI’s Unequal Power project shows how employers have exploited weaknesses in U.S. labor law and routinely resisted workers’ efforts to form unions, thus stripping large numbers of workers of their freedom to join unions and benefit from collective bargaining. The report illustrates how employers escalated their resistance to union organizing in the 1970s and 1980s, powering a steep decline of private sector unionization in those decades.

The report’s authors, EPI Distinguished Fellow Lawrence Mishel, EPI Senior Fellow Lynn Rhinehart, and Georgetown University’s Kalmanovitz Initiative for Labor and the Working Poor Associate Director Lane Windham, explain why private-sector unionization in the 1970s dramatically declined by examining data on union elections and workers’ ability to achieve an initial contract.

The authors find that employers were successful in reducing the share of workers who were able to clear three hurdles required for unionizing: triggering an NLRB election, winning that election, and obtaining a first collective bargaining agreement. While 0.46% of the workforce was able to make it across the unionizing finish line in the 1966–1968 period, only 0.17% of the workforce was able to do so by 1978–1980.

“Unions have consistently been a driving force against wage inequality and racial inequities in the United States by improving workers’ wages and working conditions,” said Mishel. “Employer opposition, both legal and illegal, has blunted an increasingly large share of the workforce from obtaining the collective bargaining workers desire.”

The report explains how employers have increasingly used the “free speech” rights included in the Taft-Hartley amendments of 1947, holding mandatory “captive audience” meetings to voice opposition to unions and make thinly veiled threats about layoffs and facility closures if workers organized. Employers also began far more extensive use of a growing “union avoidance” industry of consultants. While there were just a handful of anti-union consulting firms in the beginning of the 1970s, by decade’s end there were hundreds. In 2019, EPI estimated that employers spend nearly $340 million per year hiring union avoidance advisers to help them prevent employees from organizing.

Additionally, by the 1970s, employers were charged with committing significantly more unfair labor practices (ULPs), such as firing union activists during organizing campaigns. ULP charges against employers rose sevenfold between 1950 and 1980. A previous EPI report found that employers are now charged with violating labor law in 41.5% of union election campaigns.

Despite employers’ efforts to bust unions, worker interest in unions remained high through the 1970s, and working people continued to try to organize in both the private and public sectors. In recent years nearly half the nonunion workforce has expressed the desire to have collective bargaining where they work. Workers began to try to form unions in traditionally nonunion sectors of the economy, like retail and service, and throughout the South in the 1970s. Many of these efforts were led by women and people of color. Black and Hispanic workers were the most likely demographic groups to be union members; in 1973, Black and Hispanic men’s unionization rates were 38%, far above the 24% rate of all workers.

“Women and people of color led a new wave of union organizing in the 1970s, but they faced a solid wall of employer resistance,” said Windham. “In order for America’s workers to build power today, especially in today’s high-risk pandemic, we need to understand how employers shut the door on workers’ labor organizing in earlier decades, and government did far too little to stop them.”

The sharp decline of union representation and new union members in the 1970s—a decline from which workers and the labor movement have never recovered—was due not to worker disinterest but rather to a combination of employer tactics and weaknesses in the law that undermined worker organizing. The erosion of private-sector unionism has been a policy failure, leaving workers and unions less equipped to combat an increasingly aggressive set of legal and illegal employer practices. Policymakers should take account of these lessons and conclusions as they debate measures to strengthen workers’ ability to organize and bargain in the months ahead.

The report also provides statistical analyses showing that automation and globalization, frequently cited reasons for union decline, account for less than a fifth of the decline in private sector unionism.

“Over the last 50 years, employers have been able to more easily take advantage of the weaknesses in labor law as union-busting has become the norm,” said Rhinehart. “The National Labor Relations Act fails to deter employer interference when workers try to organize. Policymakers need to strengthen the law. The Protecting the Right to Organize (PRO) Act would curtail employer interference and impose meaningful penalties on employers who violate the law.”

The paper’s authors will discuss this research at an event on December 17, 2020. Register here.

This report is part of the Unequal Power project, an EPI initiative to reestablish the understanding in law, politics, economics, and philosophy, that equal bargaining power between workers and employers does not exist. Recognizing this inherent workplace inequality will bolster freedom, economic fairness, workplace protections and democracy.