In my previous column last December, I wrote that I was hopeful about the direction of the soon-to-be Biden Administration. Much has happened in the intervening four months, including the attack on our nation's Capitol that nearly succeeded in jeopardizing our ridiculously antiquated Electoral College result-certification process and throwing Biden's election into our dangerously conservative and compromised Supreme Court.

Thankfully, that did not happen. But this column is not about that terrible tragedy and its implications.

It's about some amazingly positive policies, proposed or already achieved by our new President and his Democratic congressional colleagues, and future positive policy directions that the new administration is moving in. But it is also about yet another inadequate Democratic congressional legislative action that will have existentially negative consequences for the labor "movement."

Blast From LBJ's Past

Let me start by stating outright, more forcefully than I did in December, that President Biden and his team are delivering FDR-New Deal-level policy initiatives in multiple areas. And my perception is not the result of "Trump fatigue alleviation." Yes, it is wonderful to have a real President and competent Federal government officials. But the policies I will note are rooted in old-line Democratic Party principles that have not been part of the party's initiatives since Lyndon Baines Johnson's 1964-68 Great Society programs because they were abandoned by the last two Democratic Presidents before Joe Biden.

I don't know who carted off the old Joe Biden. But the current version is acting like the economic Populists of the late-1800s Gilded Age. He starts by embracing their most-important philosophical position: that wealth must be taxed at an equal or greater rate than work! We last heard that phrase from the star-crossed Southern populist John Edwards in the 2008 Democratic presidential primaries. Otherwise, except for prairie Populists like Jim Hightower, a Texas state official, or the author Thomas Frank ("What's The Matter With Kansas?"), or our two most progressive former presidential candidates—Bernie Sanders and Elizabeth Warren—we have not heard that "wealth v. work" comparison from anyone in the Democratic Party—the so-called "party of the workers."

But Biden also put his money where his mouth is by proposing general increases in the corporate rate, and establishing a minimum tax-rate floor for all corporate profits, whether made in the U.S. or offshore. And he also seeks higher income-tax rates, but on higher income brackets than previously proposed. Again I ask, when did you last get that kind of proposal from a sitting Democratic President?

But there's more! Remember when candidate Biden railed against spending "trillions of dollars" on Medicare-for-All? Well the Spirit now inhabiting his being has driven him to propose trillions of dollars to stimulate our economy and help secure the incomes and assets of low- and middle-income families by increasing tax credits for those with children, proposing a $15 Federal minimum wage, giving another cash stimulus payment and increasing subsidies under the Affordable Care Act! Add to that his future infrastructure plan, which will focus on building a new clean energy economy and I will repeat—this is New Deal/Great Society-level policy.

Read It Here First

Now, I don't want to claim prescience here, but in one of my original Chief columns, on June 6, 2017, titled "Dems Lost Message: It's Income Security Stupid!," I argued that the very things that Biden is now doing were the way for the Democratic Party to return to its roots and shore up its standing with working-class Americans. With polling showing big majorities now supportive of these policies, I would venture to say "better late than never" and "don't look back."

This is really good policy and, all kidding about transcendence aside, it is what the Democrats should have been advancing for a very long time. But Democrats just cannot let go of their "on one hand/on the other hand" fear of going all-in. And so "on one hand," we have the good Income Security policies described above. But "on the other hand," we have a Democratic bill in Congress, the so-called PRO (Protect the Right to Organize) Act which, while having many good provisions, has one that is existentially bad for the labor movement and work in general.

The Economic Policy Institute explains this problem very well.

There are two ways that workers can form a union. Both involve collecting signed petitions, cards or other statements of support from workers in a chosen group (the "bargaining unit"), showing that workers want a union. If the workers collect 30 percent or more signed cards, the National Labor Relations Board (NLRB) can grant them an election to then decide by a majority vote of the workers in the bargaining unit if they want a union.

If the workers collect 50 percent or more signed support cards, they can ask their employer to voluntarily recognize and bargain with their union without an election. This is known as majority sign-up, or card-check recognition, and it existed even before the passage of the original National Labor Relations Act in 1935.

Employers Can Evade

But under current law, employers are not required to recognize and bargain with a union that is supported by a majority of workers through signed petition cards. Instead, employers can require those workers to go through an NLRB representation election, a process that is inherently unfair and corroded by the fact that employers are then allowed to get involved, thus creating an intimidating situation for workers who have just signed cards supporting union representation; a result the employer desperately does not want.

And yet, given this patently unfair "election" process, the Democratic-sponsored PRO ACT does not eliminate these so-called "elections" and replace them with majority card-check. The bill does purport to regulate these "elections" to supposedly limit the intimidation of workers by employers during the "election" process. But that is based on a hope that employers will cooperate. And that is not likely to happen.

So, let's make sure we've got this straight so that we really know what the solution is, and is not.

  • A majority of workers in a workplace take the enormous risk of signing their name to a petition card that says they want a union.
  • Current Federal labor law says the employer can refuse to recognize the written and signed wishes of a majority of the workers.
  • In our democracy, the majority supposedly rules.
  • Yet the PRO Act purports to "solve" this problem by allowing the Government to also ignore the majority decision of the workers by keeping a phony "election" process in place because the employer wants it, instead of requiring the employer to recognize the majority sign up (i.e.-card check)!

In my universe, that is NOT a solution. Here is the solution: The workers submit their signed authorization cards to the NLRB, not the employer. The NLRB determines whether the cards amount to the necessary majority of workers in the workplace who seek representation by the organizing union. If the NLRB determines that a majority has petitioned for union representation, the union is immediately certified to represent the workers.

No separate "election" is necessary. No employer consent is necessary. The workers "elected" to have a union by a majority petition. And, in our democracy, citizens are allowed to "petition" their government to redress grievances. The workers were aggrieved enough to secure a majority petition. Done and done.

PRO Has Its Pros

Now, to be fair, the PRO Act does have some good provisions that definitely help workers in already unionized workplaces. The Economic Policy Institute tells us that the bill sets a simpler and more-enforceable process for negotiating a first union contract, and mandates binding arbitration if the employer tries to stonewall. It makes the strike a stronger weapon by prohibiting employers from permanently replacing workers when they walk out; and allows secondary boycotts, which can increase the striking union's leverage. And it prohibits misclassifying workers as supervisors or contractors to prevent them from organizing a union.

These are all good things if there is already a union in place. But they do nothing to get rid of a compromised "election" process that prevents unionization in the first place!

I also want to note that there are a good number of AFL-CIO unions that know how to organize and have had significant success. Two of the people I most respect in the labor movement have, independent of each other, said the same thing to me. They said that, even absent card-check, the other provisions of the PRO Act correct enough that is wrong with current law that the unions may be able to find a way to make organizing progress.

That may be true to some extent. And I desperately want to fully agree with them, but I cannot. The trillion- and multi-hundred-billion dollar corporations like Amazon that per-force will be union-organizing targets of the future can absorb many millions of dollars in fines for violating NLRB regulations. And they will most certainly do just that to avoid having their workers empowered in any way.

Card-Check Essential

That is why regulating the election process cannot make organizing a union shop fair. The best chance, and I think the only chance for workers to organize in the workplaces of the present and future, is for our Federal government to recognize in law that majority "card-check" is the fairest and most-legitimate process to form a union. And that when a majority of workers in a unit take the risk of putting their signature on those cards, they must be rewarded by their government's immediate certification of their wishes and immediate recognition of the union chosen by those workers.

Unfortunately that will not happen. Labor's Washington leadership has accepted the tail-of-the-dog treatment from the national Dems for so long that they have lost both the leverage and the will to contest them. Even when Obama was President and Democrats firmly controlled both houses of Congress, Democrats refused to push through legislation mandating card-check as the method of recognizing a union's representation of a workplace. Now, once again the Dems are in control, though much more tenuously. And worker power still remains in jeopardy. I hate to say this, but it is now too late.

And "too late" has arrived just when we likely have the best President for workers in more than half a century. But Joe Biden cannot legislate card-check by executive order. And that frail Democratic congressional majority isn't even a majority on the Senate side because three Democratic Senators—Virginia's Mark Warner and Arizona's Mark Kelly and Kyrsten Sinema—have not yet signed on to the PRO Act. And they, along with West Virginia's Joe Manchin, don't support card-check anyway.

Labor's national leaders got used to being the tail, not the dog, decades ago and they now must bear the consequences of their acquiescence. This is not the 1880s, nor the 1930s, nor even the 1950s. Not being the dog means that Labor has not bitten anyone for more than 60 years. And it hasn't barked for nearly 40.

Union Members Keep Dropping

Through all that time and continuing, the percentage of workers who are union members shrinks yearly. There are many competent and committed people in our unions. But they are not in positions of institutional power within labor. And labor's power establishment is too vested in political relationships to do much more than occasionally display outrage and tout partial solutions, rather than real ones. 

The late, great CBS news anchor Walter Cronkite ended every weeknight broadcast with the phrase that is the title of this column. Good news or bad, hopeful or depressing, one at least felt grounded in reality when Cronkite told you the way "it" was. He did not say "it" could not be changed. He just laid out what "it" was.

I am definitely no Walter Cronkite, but I think his nightly send-off aptly describes the point I want to make here. Yes, the PRO Act has many good things in it. And yes, those provisions can be useful. But as my Indian Philosophy Professor taught us at Stony Brook 50 years ago, everything exists in a context. The context here is that the positive provisions of the PRO Act cannot work well without card-check. And the absence of a card-check provision existentially weakens the labor "movement."

Unless labor's titans confront their Democratic "allies" and demand that card-check be put in the bill, its passage won't significantly empower workers in their relationship with owners. And that renders the labor movement weaker and weaker by the year.

And that's the way it is.

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