Labor Pulse: Is This Election Labor's Last Chance?

Reproduced with permission from Labor & Employment Law Daily. © 2020 CCH Incorporated. All rights reserved.

I write this with the national elections less than four weeks away. The Washington Post’s Phil Graham called journalism “history’s first rough draft.” I write with a gut feeling, shared by millions of Americans, that this election is a once-in-a-century historical event. Perhaps no one senses this more acutely than organized labor. This may be Labor’s last chance. 

A patient on life support 

Can there be a more apt metaphor in this plague year for the shape organized labor is in? Since the enactment of the Taft Hartley Act in 1947—which outlawed closed shops and secondary boycott—labor’s slow slide into the abyss of oblivion has proceeded with little relief from the White House, the Congress, or the Supreme Court. 

Fewer than one private-sector employee in ten currently lends allegiance to a labor union. Granted, many factors contributed to the decline from one-in-three in the halcyon days of the mid-20th century. WWII enemies, bombed to the brink of extinction, rose phoenix-like, thanks in part to the Marshall Plan and other acts of American generosity. When I was a kid in the 1950s, “Made in Japan” was a code phrase for “junk.” My, how that changed! 

Rust Belt manufacturers, who didn’t fall to foreign competition, ran off … first to the right-to-work states of the South, then farther south to Mexico, then off to Asia. One “free trade” administration after another threw displaced workers the bone of retraining, while middle income union jobs were replaced by low-pay, no-benefits service-sector jobs and, increasingly, to gig-economy non-jobs. 

More than half of the 50 states have climbed on the right-to-work bandwagon, allowing workers to opt out of paying unions dues, while still reaping the rewards of collective bargaining. The Supreme Court’s 5-4 decision in Janus v. AFSCME (2018) essentially made the entire public sector a right-to-work realm, cutting the ground from beneath organized labor’s last bastion of consolidated strength. 

The gig economy at the crossroads 

Last April, as the coronavirus was just gathering steam, I asked the question “Is the Present Pandemic the Gig Worker’s Greatest Opportunity?” I argued in that Labor Pulse piece that gig workers might be on the cusp of a tectonic shift from “independent contractors” to “employees.” Subsequent class-action suits on both coasts seem to confirm that expectation. In California, a state court judge recently ruled that Uber drivers were employees under the Golden State’s tough “ABC” test of independent-contractor status. (Of course, the case is up on appeal, while the underlying statute, AB 5, is the target of Proposition 22 on Californians’ ballots next month.) Meanwhile, on the East Coast, the U.S. Court of Appeals for the Third Circuit recently reinstated the suit of several limo drivers, who contend that Uber is their employer. 

These are good omens for organized labor. But—and yes, there always seems to be a “but”—on September 22nd , the US Department of Labor released proposed regulations aimed at relaxing the Wage & Hour Division’s test of independent-contractor status. If President Trump is reelected, a safe bet is that these regs will become the new normal for this crucial issue. If Vice President Biden prevails, the proposed regs are most likely DOA … yet another reason why labor has most of its skin in the present political game. 

What organized labor really needs 

Reasonable minds can disagree on what ought to be on Labor’s wish list. Ideally, RBG would have lived until at least January 20th, when President Joe Biden replaced her with an equally liberal Justice. Shortly thereafter one of the five conservative Justices—Alito, Gorsuch, Kavanaugh, Roberts, or Thomas—would generously opt for early retirement, enabling President Biden to tip the scales to the liberal side. The five-Justice liberal majority would then find a suitable case through which to reverse Janus and reinstate the overruled precedents that for decades required non-union bargaining unit members to pay their fair share. 

Alternative histories only happen in TV series and Tarantino films. The reality is that the Republican-dominated Senate is likely to appoint conservative-Catholic jurist Amy Coney Barrett to the high Court before this month is out, solidifying the SCOTUS as a bastion of conservatism for the next two or three decades. Janus will remain the law of the land and public-employee unions will follow their private-sector sisters down the long, slippery slope of membership decline. 

What organized labor is likely to get 

If President Trump is reelected, only his loyal police unions will share the largesse. In addition to relaxing the independent contractor test, the Department of Labor on September 30th proposed new regs requiring greater union financial transparency. The GOP-dominated National Labor Relations Board is slowly but surely rolling back gains made by Labor during the Obama years. The AFL-CIO endorsed Biden and will pay the price. And, as of the end of last month, President Trump has appointed 218 judges; that’s 25 percent of the 870 Article III federal judgeships. 

The alternate scenario is a Joe Biden presidency, potentially with control of one or both houses of Congress. If this scenario materializes next month, the Department of Labor and the National Labor Relations Board will both turn the color of their stripes from red to blue. 

The first thing Labor should seek from the DOL’s Wage & Hour Division is embrace of California’s “ABC” rule, which holds that a worker is an independent contractor if, and only if: 

1. The worker is free from the control and direction of the hiring entity in connection with the work's performance, both under the contract for the performance of the work and in fact. 
2. The worker performs work that is outside the usual course of the hiring entity's business. 
3. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. 

Applying this test, the judge in California v. Uber Technologies (California Superior Court, August 10, 2020) said: 

Because the defendants cannot possibly satisfy the ‘B’ prong of the test, the likelihood that the People will prevail on the claim that the Defendants have misclassified their drivers is overwhelming; there is no need to address the other two prongs of the test. Defendants’ drivers do not perform work that is ‘outside the usual course of their businesses.’ 

Defendants’ insistence that their businesses are ‘multi-sided platforms’ rather than transportation companies is flatly inconsistent with the statutory provisions that govern their businesses as transportation network companies … . 

Many another organization will hear similar words from federal and state benches, if the DOL adopts this test in lieu of the “economic realities” test presently being circulated for comment by the Department. 

As for the National Labor Relations Board … well, it has demonstrated its willingness to be a political football for at least the last four presidencies. Consider as a case on point the status of graduate assistants at universities. The Clinton NLRB held that they were primarily employees, entitled to organize under the protection of the Labor Act. The Bush Board reversed that view, and the Obama Board flipped yet again. 

How can this be? It’s a matter of elementary math. The Board has five Members, appointed by the President with the advice and consent of the Senate. By long tradition three of the five Members are always of the incumbent President’s party. Ergo, as the political coloration of the Board changes, chameleon-like, with the change in the Oval Office, so too have the rules under which Labor and Capital must play in Board’s sandbox. 

This may not be a laudable state of affairs. No matter. Labor can be expected to take full advantage of four or eight years of a Democrat-dominated NLRB under the friendly eye of a Biden White House. Favorable Labor Board treatment of such issues as card recognition, snap elections, joint employer status, and small, localized bargaining units could again be very helpful to Labor’s fortunes. 

A ‘New Deal’ for organized labor? 

In 2008, the Obama Administration came to power making promises to Labor it either couldn’t or didn’t keep. Things were better for Labor under Obama and Biden, but not dramatically different. An Affordable Care Act was a higher priority on which to expend precious political capital. And Joe Biden in his heart is still more middle than left. 

A colleague of mine recalled for me a strike in the Port of Wilmington some decades past. Delaware Senator Joe Biden arrived at the picket line to make a stirring pro-labor speech. Then, behind closed doors he laid down the law to the unions: settle now. I am not suggesting that this was bad behavior, or even dishonest. It was politics in the rough and tumble world of American labor relations, and Biden behaved like a leader. 

Rather, my point is that, if Joe Biden is elected on November 3rd, President Biden will be the same good Joe who settled that Longshoreman strike and served Barack Obama so faithfully for eight years. He will throw organized labor some bones. And the bones probably will have enough meat on them to feed the starving labor movement for another presidential cycle. 

But—yes, here’s that pesky “but” again—I don’t see a Biden presidency as organized labor’s salvation. The harsh reality is that a Trump win may be tantamount to a death knell; a Biden win will be a reprieve. 

Unless … Unless organized labor is able to gird its loins, gather its remaining-though-waning strength, and somehow conjure up a Renaissance in the four to eight years that a Joe Biden presidency would buy it.