The COVID-19 pandemic and its effects on modern life have illuminated many great issues in the structure of our society that had previously evaded scrutiny. The sudden, dramatic rise of a deadly virus has called into question whether our governments and markets were adequately preparing for such existential threats. The need for masking and vaccination has forced us to consider the scope of the commitments we make to one another to live in a safe, connected community. As important restrictions began to take a toll on small businesses and mental health, we have struggled to find the right balance between the demands of public health and social life. Likewise, the pandemic’s impact on jobs and the workplace has led many workers to reconsider the state of their livelihoods.

While the rise of the “essential worker” revealed just how much the world relies on a plethora of underpaid, individual laborers to function, those workers were often forced into life-threatening situations with inadequate protections from their employers. America’s largest companies laid off thousands of workers, even after some vowed not to do so, and made billions, seeing the global health crisis as an opportunity to “restructure” and grow shareholder wealth. As mass protests for Black lives captured the American attention, that political actualization and desire for change began to creep into the workplace. Whether laid-off or employed, virtual or in-person, essential or not, American workers asked themselves, is there another way forward?

Whether laid-off or employed, virtual or in-person, essential or not, American workers asked themselves, is there another way forward?

In 2021, the answer was a resounding yes. The year saw 265 strikes or lockouts, a significant increase from 2020. Almost 140,000 workers from industries affected in varying ways by the pandemic including manufacturing, education, and healthcare, organized to demand better pay, benefits, and workplace safety protocols. A prolonged unionization effort captured the national spotlight and support from the Biden administration as workers at an Amazon warehouse in Bessemer, Alabama, faced an uphill battle against the union-busting tactics of the tech giant, a battle it seems they will narrowly lose (although the union is challenging the vote with the NLRB, alleging that Amazon illegally interfered in the election).

At the same time, in a trend that many have dubbed “The Great Resignation,” 4 million people left their job each month during the second half of the year, reaching a historic high in November. This left 10.9 million positions unfilled by the end of the year, leading some employers to increase wages and benefits, though these wage increases have lagged behind steadily rising inflation. According to a recent survey by Pew Research Center, of those workers who quit their jobs in 2021, 63 percent cited low pay and no opportunities for advancement, 57 percent said they felt disrespected at work, and over 40 percent cited issues with hours, benefits, and child care. All these issues are precisely the kind that could be addressed by a union in contract negotiations, but for some workers, quitting seems more tenable than organizing.

Although private-sector union membership had been declining since the 1950s, the rate of decline accelerated dramatically in the 1970s and 80s. Source: Economic Policy Institute.

With so much media attention and public support for organizing efforts, it may be surprising to learn that these efforts are taking place during a historic decline in the relative power of labor organizations in the United States. Union membership in 2021 came in at just over 10 percent, the result of a steady downwards trend over the last 40 years. This decline is almost exclusively attributable to the private sector, where membership has dropped from 29 percent of workers in 1970 to a mere 6 percent in 2021. That more than 20 percent decrease has coincided with a 10 percent increase in the share of income going to the top 10% of income-earners in the country. Though wage growth tracked the growth in economic productivity generated by laborers for the 30 years after World War II, since 1979, productivity has increased by almost 70 percent while wages have ticked up less than 12 percent. It is estimated that the decline of union-created bargaining power since the 1970s has taken $3,250 a year from the median worker’s paycheck.

As the pandemic’s effect on the workplace has recontextualized and compounded the realities of historic worker disempowerment, American labor is asking for a change. But why have so many chosen to act on this desire for change individually through resignation, rather than together through collective organizing?

As the pandemic’s effect on the workplace has recontextualized and compounded the realities of historic worker disempowerment, American labor is asking for a change. But why have so many chosen to act on this desire for change individually through resignation, rather than together through collective organizing? The answer lies in the victories of corporate power in eroding labor law and worker protections, victories that have had serious effects on the power and presence of organized labor in the United States.

Why has union membership in the United States declined so dramatically in the last 40 years? An intuitive response might be to attribute it to the changing landscape of modern labor. Advances in technology and supply-chain capitalism have moved manufacturing overseas, resulting in job losses for the highly unionized industry. In this telling, it is the seemingly “natural” and unstoppable processes of globalization and automation which have eroded union membership and kept wages stagnant. Don’t look at us, corporations would say, it’s the invisible hand in all its eternal wisdom deciding unions are no longer efficient. However, a sweeping empirical analysis by the Economic Policy Institute of the historical causes of union decline found that “at most one-fifth of the decline is due to manufacturing’s erosion,” reviewing wage analyses that cast “doubt on a dominant role” these forces have played on union membership.

There was nothing natural about it—you can thank corporate power for the weakening of worker’s rights.

It was not modernization, but intentional decisions of law and policy that got us where we are today. Since the legal right to unionize was first created, but especially since the 1970s, corporate interests have exerted their influence on each lever of government to chip away at the power and density of unions in the United States. There was nothing natural about it—you can thank corporate power for the weakening of worker’s rights.

Lobbying the Legislature

The right to unionize for most private sector workers was first granted by the National Labor Rights Act, or Wagner Act, in 1935. The act established a “national policy of encouraging workers to organize into unions and engage in collective bargaining,” mandating employers to bargain collectively if workers organized a government-certified union. As a result of the landmark legislation, unions grew in numbers and gained newfound political and economic power. But as quickly as workers organized to gain bargaining power, so too did corporations to curtail it.

I talked to Professor Benjamin Sachs, the Kestnbaum Professor of Labor and Industry at Harvard Law School and an expert in the field of labor law, about how corporate interests have whittled away at the organizing rights first created by the Wagner Act. “You could see it at the level of federal legislation in 1947 with the Taft Hartley amendments that put, for example, radical restrictions on the right to strike, on how broad your strike could be,” he told me.

The Taft-Hartley Act was passed by a Republican Congress over President Truman’s veto, weakening the Wagner Act’s protections by, among other things, giving employers the right to express their views on unionization and prohibiting secondary boycotts (the boycott of a separate company with which the primary company does business). The Act required the National Labor Relations Board (NLRB), the five-member board appointed by the president to enforce the NLRA, to prioritize secondary boycott cases and seek injunctions (court orders to act or refrain from action) from federal courts on these activities. Unlike employer violations of the NLRA, these types of cases were also already subject to separate civil suits and money damages that could be pursued by employers against unions, meaning a violation could result in suits from all sides.

The Act also banned “union security” agreements that required represented employees to pay union dues, laying the groundwork for states to undermine unions through so-called “right-to-work” laws which have now been adopted in a majority of states. These laws allow employees to gain union representation without paying its costs, leaving unions unable to effectively fund themselves.

Subsequent attempts to undo the harm of Taft-Hartley and give labor laws more teeth have also faced strong resistance in Congress at the behest of business interests. In 1978, the Labor Law Reform Act, a bill designed to strengthen the right to strike and unionize, was killed after a 19-day filibuster with coordinated support from a broad coalition of ­corporate lobbyists, whose prevalence had increased by fourfold in the 1970s.

Moreover, a massive industry of anti-union consulting firms had also developed in that decade that mainstreamed the idea that effective management required avoiding unions at all costs, educated managers on how to best stay “union-free,” and were directly conscripted in anti-union campaigns to defeat organizing attempts at different companies. These firms remain prevalent today—Amazon hired two of them, along with the law firm Morgan Lewis, which specializes in union avoidance activities, in their union-busting campaign in Bessemer.

Executives in the Executive

Corporate interests also achieved success through “administrative decisions that are taken by the National Labor Relations Board under Republican presidents,” Professor Sachs noted. Since the NLRB is an agency in the executive branch, its leadership changes with each presidential administration. In the 1960s, some of the country’s largest companies, including General Electric, Ford, and US Steel, organized the Labor Law Reform Group (LLRG) to push lawmakers to adopt policies that curtailed workers’ rights. Under President Nixon, the LLRG successfully realized many of their primary objectives by bringing litigation before the NLRB and obtaining favorable rulings. In highly consequential decisions, the NLRB expanded the “free speech” rights of employers, allowing them to force employees to attend “captive audience” meetings expressing anti-union views and to threaten to shut down if workers form a union, so long as that is not the sole reason given.

Companies make liberal use of this synthetic “free speech” right and the tool of captive audience meetings, and Starbucks is no exception. Maria, the barista from Coolidge Corner, told me about a packet she was given by management explaining how unions were a “business,” including a page purporting to reveal their structure. “It was literally a pyramid…they wanted to make it look like a pyramid scheme, like you pay into the bigger union.” Amazon recently used an anti-union propaganda website to dissuade employees in its JFK 8 Staten Island fulfillment center from voting in favor of a union. (Amazon’s union-busting efforts at JFK 8 were unsuccessful.)

Maria also told me about several “listening meetings” that employees were required to attend which, in addition to their store manager, included a local franchise manager and a district manager from Pittsburgh who they had never met before. Starbucks stores within the same district often share “partners,” as the workers are called, to fill in open shifts when they are short on staff. Maria says the district manager falsely claimed that that practice would have to stop if they unionized. “They say, ‘oh you can’t borrow partners.’ And I said, ‘Why? Tell me what in the law says that.’” Maria said she was never given an explanation, only that this was what the company had done in the past.  “They scare us and they fill us with lies.”

Kylah, the barista from Commonwealth Ave, says she was told the same thing by upper-level management at her listening meetings. “At one point I left feeling like, ‘I just got gaslit by the regional vice president of the corporation.’” Kylah describes the meetings as “an hour of being given a lot of misinformation.” Both Maria and Kylah had legal training ahead of the meetings, which allowed them to recognize the misinformation as such. “I was really glad I could stand up for my coworkers in those moments, but I know there are a lot of other people that are in situations where they can’t really actively push back on what is being said,” Kylah told me. “Corporate will frame it, and will push it, and will not give up—so you’ll start to believe them.”

“Corporate will frame it, and will push it, and will not give up—so you’ll start to believe them.”

Even if an employer is found to have violated labor protections, the remedies provided by the NLRB are relatively inconsequential for businesses. A company who is found to have illegally fired an employee is typically forced to rehire them and pay back lost wages. There are no fines or jail time, which has incentivized employers to break the law and receive a slap on the wrist to stop the much larger threat posed by unionization.

Professor Sachs told me about a famous (or perhaps infamous) statistic: a worker who decides to help lead an organizing campaign has a 20 percent chance of being fired. “Let’s say one in five workers who takes the lead role in an organizing campaign gets fired for doing so. That makes it incredibly difficult to organize unions. Now, that’s illegal, but the remedies are slow and weak, so it takes a couple of years to get reinstated. And if you are reinstated, the most the employer can pay is what he should have paid you had you not been fired, minus your responsibility to mitigate damages by getting another job in the interim.”

Swearing-in of Chief Justice John Roberts, under whose leadership the Supreme Court has consistently sided with corporations in controversial cases. Photo courtesy of Office of White House Management, Photography Office.

A Captured Judiciary

A series of Supreme Court decisions further limited the rights of workers to organize by weakening their bargaining power and expanding employer leverage. In American Ship Building Co. v. NLRB (1965), the Court gave employers the right to proactively lay off, or “lock out” employees to support their bargaining position. In H.K. Porter Co. v. NLRB (1970), the Court found that the NLRB could not require particular terms in bargaining agreements, and soon after the NLRB determined it could not require the repayment to employees of compensation lost by bad-faith employer bargaining, severely weakening the requirement of employers to bargain in good faith.

In First National Maintenance Corp. v. NLRB (1981), the Court said that employers did not have a duty to collectively bargain on “managerial” decisions like canceling a contract or restructuring, even when doing so would result in job losses. Though employers are still required to bargain over the effects of such decisions, workers can no longer influence such consequential decisions through a mandated collective bargaining process.

In another case, the Court suggested that employers could hire permanent replacements for workers engaged in an economic strike without violating the NLRA. After President Reagan fired and permanently replaced illegally striking air traffic control workers in 1981, major companies adopted the tactic of hiring or threatening to hire permanent replacement workers. Overall, the Supreme Court went from siding with unions 80 percent of the time between 1940 and 1969, to only 50 percent since 1970, handing down decisions that “reflect and amplify the interests of corporations,” as Professor Sachs put it.

Overall, the Supreme Court went from siding with unions 80 percent of the time between 1940 and 1969, to only 50 percent since 1970, handing down decisions that ‘reflect and amplify the interests of corporations.’

This trend is far from being behind us, as the Supreme Court delivered a serious blow to unions just last year in Cedar Point Nursery vs. Hassid. “That is a very worrying decision which says that if a state allows union organizers to go onto employer property for the purposes of talking to workers about unions, the state has taken employer property in an unconstitutional way,” Professor Sachs explained.

The “Takings Clause” of the Fifth Amendment says, “private property [shall not] be taken for public use, without just compensation.” In Cedar Point Nursery, the Supreme Court read this to apply to a California law that allowed agricultural union organizers to enter employer property during certain hours of the day, and said the state therefore had to pay for the “property” it had taken from employers. Professor Sachs conceded that the decision may not be as significant as it might have otherwise been, because “the Supreme Court has already decimated access rates in the private sector. But one thing that Cedar Point does is it now creates a constitutional hurdle to ever granting legislatively the kind of access rights that union organizers need.”

Corporations finding friendly faces on the federal bench comes as no surprise as dark money groups—nonprofits that can receive unlimited donations from corporations and individuals but do not have to disclose their donors—like the Judicial Crisis Network have spent millions to secure the appointments of conservative judges and remake the federal judiciary, all the way up to the highest court in the land. A recent analysis by Senator Sheldon Whitehouse found that the Supreme Court under Chief Justice John Roberts has sided with far-right and corporate interests 92 percent of the time in the most controversial cases they considered, a trend that shows no sign of stopping now that the Court enjoys a 6-3 conservative supermajority. More than just ideologically compromised, the neutrality of the federal judiciary in corporate interest cases has been seriously called into question by a recent investigation revealing that 131 federal judges violated judicial ethics laws between 2010 to 2018 by failing to recuse themselves in cases involving companies in which they or their family owned stock.

The progressive weakening of worker protections and bargaining power through policy, administrative, and court decisions has culminated in greater obstacles in each part of the unionization process. To successfully unionize and bargain for a contract, workers must: 1) obtain signed union cards from 30 percent of employees to ask the government to hold an election; 2) win a majority in the election; and 3) secure a first contract with their employer.

Fewer employees are voting in elections, with election participation down 90 percent since 1950. In the same period, workers have gone from winning two-thirds of their elections to just above half. With a weakly enforced requirement to bargain in good faith, the rate of winning a first contract dropped by 30 percent from the 1950s to the 1990s. While successful union elections expanded the share of unionized private sector workers by 8.7 percent in the 1950s, in the 2010s, the share of unionized private sector workers has grown by only 0.5 percent.

“One part of the story for sure is intense opposition from corporate management, coupled with a very weak set of legal protections for union activity—you put those two things together and you’ve got a recipe for not having unions,” Professor Sachs told me. “Look at how incredibly difficult it is to form a union. It shouldn’t be hard to form a union. It should just be a simple process of, ‘Do 51% of the workers want a union? Let’s have a vote.’ And get on with it. But you have these protracted battles where workers are fired, where you know they’re bombarded with anti-union propaganda, and the law does very little about it.”

The sad state of union density stands in stark contrast to the desire and approval of unions in the broader public. 68 percent of Americans approve of labor unions, the highest rate since 1971. 48 percent of Americans would “join a union in their workplace tomorrow if they got the chance,” revealing a huge gap between those who want union representation and the 10 percent of Americans who actually have it.

Politicians have taken note of public opinion, with the House of Representatives recently passing the Protecting the Right to Organize Act (PRO Act), a labor law reform bill supported by the Biden Administration that would allow unions to override restrictive right-to-work laws, reduce employer interference by making mandatory anti-union company meetings illegal, and create real penalties for companies and executives that violate workers’ rights. The legislation has little hope of passing the evenly divided Senate, where Republicans can easily use the filibuster to kill its prospects. But even if the law remains unchanged, that will not stop workers from making change themselves.

For many workers, the pandemic crystalized the need for union representation in their workplaces. Bailey Fulton and Jacob Roessler, baristas from a Starbucks in the neighboring city of Worcester who attended the Boston vote count in solidarity, told me about how their experiences as workers throughout the pandemic influenced their perspectives about their own jobs.

Though Starbucks closed her store and others for several weeks when the pandemic began, Bailey told me she was shocked to discover that drive-through locations never closed. “Those partners were never given the opportunity to stay home.” Bailey also worked at Whole Foods during the pandemic. “All of a sudden, we were like, the heroes…people were just like, ‘I’m so glad you’re here!’ And I was like ‘Really? I’m not! I don’t know if I’m gonna die from something you breathe on me right now, and I’m not getting anything to support me in that.’”

The country’s reliance on laborers throughout the pandemic juxtaposed with corporate flippancy towards worker safety revealed the tilted scales of the employer-employee bargaining relationship. “The worker was put on a pedestal—the retail associate, the service employee, the so-called ‘essential worker,’” Jacob told me. “It was the incredibly quick drop-off of that status as soon as the pandemic had lessened and things were opening up—I think that shook a lot of people. It kind of made me realize, ‘you send me out to die before you give me a living wage.’”

The country’s reliance on laborers throughout the pandemic juxtaposed with corporate flippancy towards worker safety revealed the tilted scales of the employer-employee bargaining relationship.

Things will not be returning to the pre-pandemic status quo. Workers who endured the pandemic are fed up and demanding more power to decide the terms of their employment. But corporations seem to have a stranglehold on our laws, courts, and the tools of democracy that will prevent any significant structural change. So how can labor pull itself from the ashes in the face of a static system? Can individual workers mount a serious challenge within a system that it is stacked against them? Will the pandemic’s long tail and the rising tide of unionization lead enough dissatisfied workers to consider organization over resignation?

Professor Sachs says these are “million-dollar questions,” but he is optimistic. “This is probably a hopeful answer, but I think there’s a conjunction of workers having lived through the pandemic, having been told that they were essential, having been exposed to terrible conditions, fueling a kind of militancy. You couple that with a tight labor market, and you get a willingness to demand change for the better. Then you locate that in a political context where you have a pro-union president and a general counsel of the Labor Board, willing to really, really go out on a limb to protect workers’ rights, and I think there is reason to be optimistic that this will be more than a blip. And we know from the history of organizing that success breeds success. The Buffalo example is a terrific one. When workers see that they can win, they’re more likely to try.”

Boston may be yet another example. Bailey and Jacob, along with the other Worcester partners, had just filed their own union paperwork a few weeks before the Boston stores’ vote count. “We’d seen Buffalo a month or two prior, then Boston, and we were like, ‘well, that’s like an hour away,” Jacob told me. “The struggle is incredibly similar at every store, so when you know you’re experiencing the same working conditions, you feel like your concerns are real and validated as well.”

Moreover, seeing the types of union-busting tactics Starbucks employed in Boston, Jacob said the Worcester partners know “what to look out for” and are “ready to respond.” Just as the Coolidge Corner store had worked with an organizer from Buffalo, Bailey told me workers at the Worcester store were setting up a meeting with Kylah, the barista and law student from Commonwealth Ave, and an attorney to learn about some of the legal aspects of the process.

Corporations have sought to weaken organized labor because they fear the power of the people united. Collective organizing has transformative potential, the fruits of which I experienced at that small bookstore basement in Boston. “I was actually gonna move to LA in June, but I decided to stay in Boston because I wanted to bargain,” Maria told me. “This is a way I can contribute to a movement that will help fix the issues that I feel strongly about.” Weeks after we spoke, I happened to walk past Maria speaking to a crowd at a May Day rally in Cambridge, sharing her story to encourage organizing efforts across the city.

Tyler, who is graduating from law school in May, decided to divert his plans as well. “I’ll tell you this: I’m not taking the bar in July. I was going to go back to California, but I’m staying up here until we finish collective bargaining. And I’m not leaving Starbucks, I’m not gonna do that. This is probably more meaningful than anything I’ve done in law school.”

Corporations have sought to weaken organized labor because they fear the power of the people united.

It remains to be seen whether the dominos will fall; if the successful unionization of one Buffalo Starbucks could lead to a country full of unionized coffee shops; if every corporation and industry will have its own set of dominos. From the moment a worker first contemplates joining a union, to the moment her union secures a first contract, corporate power will seek to undermine organizing efforts using every dirty trick in the book, and they will have the law on their side to back them. But the people will be there to meet them at every corner with a power of their own, and we have strength in numbers.