Over the past two months, the Department of Government Efficiency (DOGE) has followed the Silicon Valley mantra of “move fast and break things” to the letter. And one thing it has been trying to break quickly is public sector unions. In early March, for instance, the Department of Homeland Security’s (DHS) unilaterally terminated the collective bargaining agreements between it and airport screeners. More recently, the Office of Personnel and Management has instructed agencies to disregard provisions within union contracts governing reduction-in-force procedures.
The Trump administration is, however, far from alone in its attempt to break public sector unions, as both Republican and Democratic states have targeted them as well. The Republican-controlled legislature for the State of Utah recently passed legislation outlawing public sector unions. In union-heavy New York State, the governor fired 2,0000 corrections officers for refusing to cross the picket line and has barred them from ever working for the state again.
The scenario is not much better yet for the private sector. Despite the fact that many workers in recent years have successfully organized into unions using the process overseen by the National Labor Relations Board (NLRB), workers such as those at Amazon have failed to obtain their first contracts due to the structural imbalance in the National Labor Relations Act’s (Act) remedy scheme. Specifically, the Act requires that the parties negotiate in good faith, but contains no mechanism for requiring the parties to reach agreement. Additionally, SpaceX, Amazon, and other employers are trying to gut the NLRB by asking the courts to enjoin the agency from adjudicating cases using administrative law judges. At least one court has granted such relief, and the issue may eventually go up to the Supreme Court for resolution.
All of this raises a crucial question: How does labor organize in this time of legal chaos?
The Answer So Far
So far, organized labor has responded to the administration’s attack on public sector workers by framing it as an attack on essential government services. They are trying to demonstrate that the interests of public sector unions are aligned with the public interest. Additionally, organized labor has turned to courts to staunch the potential loss of membership, a strategy that is producing mixed results.
While it is understandable for labor to seek redress in court, there is one major problem with relying on courts – they have been historically hostile to labor’s interests. For almost a generation in the late 19th and early 20th centuries, courts engaged in “government by injunction.” They frequently enjoined peaceful labor activity. Fast forward to today and not much has changed. The Supreme Court has generally remained hostile to labor, and the current Supreme Court especially so. The current court has punished unions for going on strike and defunded public unions by barring them from collecting agency fees from non-member free riders. The Court has flirted with doing the same in the private sector as well.
Overcoming Government by Injunction
Labor unions eventually overcame the challenges brought by government by injunction through persistent organizing during the chaos. At first, courts’ use (and abuse) of the injunction to stymie labor organizing as an illegal conspiracy hindered labor’s ability to protect workers. However, political pressure by labor eventually led Congress to exempt concerted activity from the reach of antitrust law in declaring that “the labor of a human being is not a commodity or article of commerce.” When courts continued to enjoin labor activity on other grounds, Congress passed the Norris-LaGuardia Act in response to courts’ excesses. When Congress finally protected the right of workers to engage in mutual aid and protection but failed to provide enforcement mechanisms, worker agitation and hunger brought on by the Great Depression led workers to resist and be subject to violence. That led to the eventual passage of the National Labor Relations Act and provided a pathway for unions to sign up workers in record numbers.
The moral? Court decisions do not build up a labor movement. Congress passed laws to maintain labor peace, not from a sense of moral compunction. Courts used the logic of labor peace to defend the existence of collective bargaining. Court decisions may slow down the breaking of federal public sector labor unions, but who knows to what effect. As I write this, the Trump administration appears open to flouting court orders. Elon Musk and other members of Congress have called for the impeachment of judges who refuse to give them what they want. Organized labor cannot look to courts to construct order out of the chaos that the administration is bringing to bear against it. It must find a way forward that does not rely on solely on legal recognition for the legitimacy of its own institutional existence.
What the Answer Could Be
The key for organized labor to organize in this time of chaos is to re-examine the work of trade unionists who organized prior to the passage of the National Labor Relations Act, when organized labor lacked legal protection. In my forthcoming paper, in the Boston College Law Review titled “The Death of Labor Law and the Rebirth of the Labor Movement,” I examine how the Supreme Court could apply the Major Questions or Non-Delegation doctrine to completely eliminate the National Labor Relations Act and return labor relations to when it was governed by little more than the law of the jungle. Occasionally, organizers of that time could rely on state bargaining laws to build a pathway for recognition. But more often than not, they had to improvise the creation of a union in the absence of a legal process for gaining recognition from employers. In the paper, I outline how to rebuild the labor movement by first getting rid of preemption as a barrier to state action, and then using labor’s political strength to push states to enact their own bargaining laws. It draws on some of the scholarly thought that this blog has featured on the Norris-LaGuardia Act and state law preemption.
While that paper focuses on the private sector, there are two lessons that especially apply in the wake of the chaos that the Trump administration is causing the public sector. First, labor can grow during times of chaos. For example, the period after the stock market crash of 1929 was especially fraught with danger and chaos. At that point, millions of people had lost their jobs and their savings and were taking to the streets. As a result, labor was able to organize members in record numbers (albeit with the tacit endorsement of the President). Eventually, organized labor successfully agitated for the passage of the NLRA.
The second lesson that organized labor can draw from that early time period has to do with the nature of political processes. In the 1930s, the political process created a legal pathway to collective bargaining in response to worker organizing during a time of legal and economic chaos. But that does not mean unions waited the for government to grant them permission to exist. Labor unions have existed in the United States without formal recognition by a governmental body since Philadelphia shoemakers first formed into Federal Society of Journeymen Cordwainers in 1794. In the absence of formal labor law, unions lived under the law of the jungle. Similarly, Americans today celebrate Labor Day, but that holiday might not exist if it were not for the Pullman strike in 1894. That strike took place because railcar magnate George Pullman refused to negotiate with the American Railway Union, and in doing so nearly shut down the U.S. economy and brought the country to “the edge of anarchy” as the union employed secondary boycotts, solidarity strikes, and other tools that current labor law proscribe. In other words, unions engaged in collective bargaining well before Congress provided them with a pathway for doing so through passage of the National Labor Relations Act in 1935.
In fact, labor unions have existed and organized workers without explicit government sanction in liminal spaces since they first formed. In this way, government workers in the United States can learn from those in Puerto Rico. Before 1998, government employees in Puerto Rico did not have the right to collectively bargain. Instead, they formed into “bona fide associations” (or roughly, minority unions) to demand that their public sector employers sign letters of agreement. These letters were something less than full collective bargaining agreements, but something more than what they were allowed to obtain under standard government employee compensation arrangements. Similarly, public sector workers in Virginia engaged in collective bargaining and collective actions despite facing significant legal headwinds. The work of these associations in Puerto Rico and Virginia demonstrates that there is a way forward in the public sector even in the wake of a full-on assault by the administrative state.
Embracing Chaos?
Public sector unions face a set of serious shocks to their very existence in what may seem like a volatile, uncertain, complex, and ambiguous environment. Even though the attacks are unprecedented in the history of the federal government, they are not unprecedented for workers. In 2019, air traffic controllers engaged in a sick out during a government shutdown, fighting against Trump’s holding the budget hostage to his demand for a border wall. Withholding labor at airports like LaGuardia forced Trump to end the shutdown without winning his demands even though doing so was legally risky. If certain sectors of the federal workforce engaged in such an action, there is little doubt that the administration would simply repeat what happened when Ronald Reagan famously fired all of the air traffic controllers for going on strike in 1981. Instead, federal sector unions must apply “bargaining for the common good” models to organize workers and the community. They could do so by building a bottom-up coalition with groups in GOP-aligned states who rely on federal funding to fund Medicare and Medicaid for taking care of their poor and elderly.
In many ways the current administration’s attack on the federal administrative apparatus is an application of the “shock doctrine.” Being clear-eyed on the attack vector and creatively exploring options that focus on working organizing makes it possible for unions to focus on what really matters, not the legal vagaries of today’s attack on the administrative state or on workers, but rather on building countervailing worker power.
