The Waning of Trade Unions: Labor Law and its Subversion

Low Union Representation

Trade unions have long been one of the only ways that workers have of advocating for themselves within the confines of capitalist production. Yet, in recent years, the number of those workers who are represented in unions has fallen. In 2006, 7.4% of American workers were unionized, which is down from over 30% in 1960 (Shaiken 2007). What accounts for this drastic drop in union participation? Some might venture to argue that American workers don’t want to be unionized; that they are satisfied with their treatment by employers and don’t feel that they need to collectively bargain.

Yet, when one looks at the numbers, we find that the reverse is true: workers want union representation more than ever. We will first analyze the data regarding worker representation in unions in contrast to their desire to be represented, and then discuss the deterioration of existing labor law, addressing how the law empowers bosses against workers. Finally, we will discuss the potential implications of the Employee Free Choice Act on this state of affairs, and offer a solution to this representation deficit.

Workers Want Unions

Between 1994 and 1995, the Worker Representation and Participation Survey (WRPS) was conducted in two waves on a nationally representative sample of 2,408 adults (18 and older) working in the private sector. Using this dataset, Richard B. Freeman of the National Bureau of Economic Research concluded that workers want unions “more than ever.” He found that 44% of those sampled favored union representation, with 32% of non-union workers and 90% of union workers said they would vote for trade union representation (2007). Although these numbers may not seem all that staggering, closer inspection of the data set reveals that more workers want representation than they let on by their reported willingness to vote for union representation. He found that approximately 3/4 of workers desire independently elected workplace committees to meet and discuss issues with management, with a meagre 14% of workers who are satisfied with their voice at work and 10% unsure (2007).

Freeman suggests that, if the desires for workers seeking unions were met, many of the non-union workers who desired representation but said they wouldn’t vote for a union would end up in a union anyway. From his estimation, the deficit of union participation desire in 2007 is a potential 58% to an actual 7.4% of union participation (2007). If this is indeed the case, what accounts for this massive gap between desire for representation and union participation?

Labor Law: Then and Now

To answer this question, we need to first look briefly at how existing labor law has deteriorated over time. The National Labor Relations Act (NLRA), otherwise known as the Wagner Act after Democratic Senator Robert Wagner, was signed into law in 1935. The stated purpose of the law (the last paragraph in section one) is thus:

“It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self- organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection” (NLRA Section 1 paragraph 3).

Toward this end, the NLRA established a National Labor Relations Board (NLRB) to enforce the law and punish employers who participate in unfair labor practices outlined in section 8 of the bill. The then-controversial bill came under political fire as being “socialist” and in 1947, the Taft-Heartly act was passed. In contrast, the stated purpose of Taft-Heartly was thus:

“It is the purpose and policy of this Act [chapter], in order to promote the full flow of commerce,to prescribe the legitimate rights of both employees and employers in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, to protect the rights of individual employees in their relations with labor organizations whose activities affect commerce, to define and proscribe practices on the part of labor and management which affect commerce and are inimical to the general welfare, and to protect the rights of the public in connection with labor disputes affecting commerce” (Taft-Heartly Section 1[b]).

It is simple to see, comparing this piece of legislation’s stated purpose to that of the NLRA, who Taft-Heartly is trying to defend. This bill was authored by Republican Senator Robert Taft, a staunch Hooverite and opponent of the New Deal reforms, and Representative Fred A. Heartly Jr., who was a partner in a leading corporate law firm, and served the purpose of curbing union powers in favor of management. The bill asserts a variety of rules and conditions which effectively limit workers ability to strike, allow management to “voice concerns” (meaning, make veiled threats) about factory closing or wage cuts resulting from unionization, and make way for the use of shrewd union-busting activities on behalf of employers.

Bosses Have the Power

As a result of the empowerment of employers against unionization provided by Taft-Heartly, a multi-million dollar industry has emerged with the end of helping employers bust unions without getting in trouble with the NLRB. These operations can range from large campaigns, to smaller consulting packages for employers who can’t afford them (Logan 2002: 200). The advice they offer both serves to prolong the process of workplace unionization, as well as to advise employers on how to use their supervisors to coerce workers into not participating in a union drive. For instance, “(s)upervisors tell employees that the card campaign is going badly and warn union organizers are using intimidation, harassment, and pressure tactics to force employees to sign cards, thus placing the union on the defensive and making employees wary of approaches from union supporters” (2002: 200).

In this sense, supervisors are used as a sort of Praetorian Guard against unionization. Often warnings that “their future and entire worth at the company is dependant on how many ‘no votes’ they deliver in (an) election,” are used to place supervisors in this role (2002:202). Practices ranging from using supervisors to manufacture dissent and using captive audience meetings to communicate anti-union propaganda, as well as a number of other delaying and worker-intimidation tactics, are implemented as a part of this anti-union movement among employers, as well as the agencies that make a career out of union-busting.

The Rules are Made to be Broken

In addition to tactics which work within the framework of the weak labor law, employers have demonstrated that they are willing to break the law in order to combat unions. Section 8(a)(3) of the NLRA, which prohibits employers from discriminating against employees to discourage union support, is the most often violated. During the Reagan Era, there were 1.5 proven violations of Section 8(a)(3) for every NLRB election conducted (Page 1985: 596). Morris M. Kleiner, in his study of 8(a)(3) violations in 1984, concluded that “union official’s claims that the penalties in the (National Labor Relations) Act are not strong deterrents to management violations and may be considered a relatively low cost of doing business” (1984).

The Employee Free Choice Act

Recently, in order to counteract the deficiencies of existing labor law, the Employee Free Choice Act (EFCA) has been taken under consideration by the US Senate. The stated purpose of the bill is thus:

Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a). (EFCA Section 2[a][6]).

This ammendment to the NLRA seeks to restore the intent of the Wagner Act by restoring stiffer penalties and enforcement on unfair labor practices, as well as seeking to streamline union certification. The intended consequence here is that employers have less power to deny workers their rights to unionize via increasing the amount employers would have to pay for violating the law and hampering their ability to prolong the process by eliminating the need for an additional ballot if a majority of workers have expressed that they want a union.

Conclusion: We Need More Than A Band-aid

The EFCA, in effect, sets the clock back to 1935 by restoring the Wagner Act to its full potency. This would likely lead to an increase in union participation, and would serve to bridge the gap between representation and desire to be represented. However, the very construction of our capitalist economic system ensures that any such victory would at best be a temporary reprieve in capital’s long march towards maximum surplus value. The passage of the Taft-Heartly Act to neuter the NLRA of its ability to defend the rights of workers to organize demonstrates this, and the emergence of an entire industry build around circumventing US labor law ensures us that employers and professional union busters will be looking for ways to work around the EFCA to bust unions, while simultaneously working to have the bill defeated, vetoed, or amended into impotency. In a capitalist society, where those who own the means of production exert the greatest power and influence over the running of society, any challenge to the hegemony of the ruling class within its own halls is doomed to failure, be it immediate or after decades of reformist crusading are crushed by a changing of seats in the highest office in the land. Of course, such reformist victories in the short term are important for the health and well-being of the workers, yet they are a mere bandage on the severed limb of workers in capitalism.


Freeman, Richard B. 2007. “Do Workers Still Want Unions? More Than Ever.” Economic Policy Institute Briefing Paper (#182). Retrieved April, 13, 2010.

Kleiner, Morris M. 1984. “Unionism and Employer Discrimination: Analysis of 8(3)(a) Violations.” Industrial Relations 23 (2): 234-243. (Retrieved from EBSCO April, 13, 2010).

Logan, John. 2002. “Consultants, lawyers, and the ‘union free’ movement in the USA since the 1970’s.” Industrial Relations 33 (3): 197-214. (Retrieved from EBSCO April, 13, 2010).

Page, Leonard R. 1985. “The Rise, Decline, and Ressurection of American Labor Law: A Critical Assesment of the NLRA at Age Fifty.” Labor Law Journal (Retrieved from EBSCO April, 13, 2010).

Shaiken, Harley. 2007. “Unions, The Economy, and Employee Free Choice.” Economic Policy Institute Briefing Paper (#181). Retrieved April, 13, 2010.

Categories: Economy, History, Labor, United States History

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