#nlra

When unions are outlawed, only outlaws will have unions. Unions don't owe their existence to labor laws that protect organizing activities. Rather, labor laws exist because once-illegal unions were formed in the teeth of violent suppression, and those unions demanded – and got – labor law.

Bosses have hated unions since the start, and they've really hated laws protecting workers. Dress this up in whatever self-serving rationale you want – "the freedom to contract," or "meritocracy" – it all cashes out to this: when workers bargain collectively, value that would otherwise go to investors and executives goes to the workers.

I'm not just talking about wages here, either. If an employer is forced – by a union, or by a labor law that only exists because of union militancy – to operate a safe workplace, they have to spend money on things like fire suppression, PPE, and paid breaks to avoid repetitive strain injuries. In the absence of some force that corrals bosses into providing these safety measures, they can use that money to pay themselves, and externalize the cost of on-the-job injuries to their workers.

The cost and price of a good or service is the tangible expression of power. It is a matter of politics, not economics. If consumer protection agencies demand that companies provide safe, well-manufactured goods, if there are prohibitions on price-fixing and profiteering, then value shifts from the corporation to its customers.

Now, if labor has few rights and consumers have many rights, then bosses can pass their consumer-side losses on to their workers. This is the Walmart story, the Amazon story: cheap goods paid for with low wages and dangerous working conditions. Likewise, if consumer rights are weak but labor rights are strong, then bosses can pass their costs onto their customers, continuing to take high profits by charging more. This is the story of local gig-work ordinances like NYC's, which guaranteed a minimum wage to delivery drivers – restaurateurs responded by demanding the right to add a surcharge to their bills:

https://table.skift.com/2018/06/22/nyc-surcharge-debate/

But if labor and consumer groups act in solidarity, then they can operate as a bloc and bosses and investors have to eat shit. Back in 2017, the pilots' union for American Airlines forced their bosses into a raise. Wall Street freaked out and tanked AA's stock. Analysts for big banks were outraged. Citi's Kevin Crissey summed up the situation perfectly, in a fuming memo: "This is frustrating. Labor is being paid first again. Shareholders get leftovers":

https://www.vox.com/new-money/2017/4/29/15471634/american-airlines-raise

Now, crucially, union members don't want you to stop shopping at Trader Joe's. But they do want you to be aware of this shit.

Here's a link to get you started, but just looking up 'trader joe's unions' brings up a lot of articles and other information.

You're a union shop steward. You're called in to a disciplinary meeting against a union member. The managers lay out a clear case: they have multiple witnesses, documentation of the offense, a clear prohibition against that behavior in the code of conduct the employee signed, and there isn't anything in the union agreement about it. They're smug, thinking they've got the employee dead to rights. And then, when you're given a chance to speak, you gently ask "for my first question, is it the policy of [company] to comply with state and federal law?" And the smug grins fall off their faces and come crashing down to the ground as you begin politely asking them whether they're familiar with the FLSA or the case law you've been carrying around in your steward bag.

The next day, you see one of the managers angrily berating an employee. You don't even have to walk all the way over; simply an arched eyebrow is enough to make them stop.

"How much safer has construction really gotten? Let’s take a look.

Construction used to be incredibly dangerous

By the end of the 19th century, what’s sometimes called the second industrial revolution had made US industry incredibly productive. But it had also made working conditions more dangerous...

One source estimates 25,000 total US workplace fatalities in 1908 (Aldrich 1997). Another 1913 estimate gave 23,000 deaths against 38 million workers. Per capita, this is about 61 deaths per 100,000 workers, roughly 17 times the rate of workplace fatalities we have today...

In a world of dangerous work, construction was one of the most dangerous industries of all. By the 1930s and early 1940s the occupational death rate for all US workers had fallen to around 36-37 per 100,000 workers. At the same time [in the 1930s and early 1940s], the death rate in construction was around 150-200 deaths per 100,000 workers, roughly five times as high... By comparison, the death rate of US troops in Afghanistan in 2010 was about 500 per 100,000 troops. By the mid-20th century, the only industry sector more dangerous than construction was mining, which had a death rate roughly 50% higher than construction.

We see something similar if we look at injuries. In 1958 the rate of disabling injuries in construction was 3 times as high as the manufacturing rate, and almost 5 times as high as the overall worker rate.

Increasing safety

Over the course of the 20th century, construction steadily got safer. 

Between 1940 and 2023, the occupational death rate in construction declined from 150-200 per 100,000 workers to 13-15 per 100,000 workers, or more than 90%. Source: US Statistical Abstract, FRED

For ironworkers, the death rate went from around 250-300 per 100,000 workers in the late 1940s to 27 per 100,000 today.

Tracking trends in construction injuries is harder, due to data consistency issues. A death is a death, but what sort of injury counts as “severe,” or “disabling,” or is even worth reporting is likely to change over time. [3] But we seem to see a similar trend there. Looking at BLS Occupational Injuries and Illnesses data, between the 1970s and 2020s the injury rate per 100 workers declined from 15 to 2.5.

Source of safety improvements

Improvements in US construction safety were due to a multitude of factors, and part of a much broader trend of improving workplace safety that took place over the 20th century.

The most significant early step was the passage of workers compensation laws, which compensated workers in the event of an injury, increasing the costs to employers if workers were injured (Aldrich 1997). Prior to workers comp laws, a worker or his family would have to sue his employer for damages and prove negligence in the event of an injury or death. Wisconsin passed the first state workers comp law in 1911, and by 1921 most states had workers compensation programs.

The subsequent rising costs of worker injuries and deaths caused employers to focus more on workplace safety. According to Mark Aldrich, historian and former OSHA economist, “Companies began to guard machines and power sources while machinery makers developed safer designs. Managers began to look for hidden dangers at work, and to require that workers wear hard hats and safety glasses.” Associations and trade journals for safety engineering, such as the American Society of Safety Professionals, began to appear...

In 1934, the Department of Labor established a Division of Labor Standards, which would later become the Occupational Safety and Health Administration (OSHA), to “promote worker safety and health.” The 1935 National Labor Relations Act (NLRA), which legalized collective bargaining, allowed trade unions to advocate for worker safety.

Following WWII, the scale of government intervention in addressing social problems, including worker safety, dramatically increased.

In addition to OSHA and environmental protection laws, this era also saw the creation of the Consumer Product Safety Commission (CPSC), the National Highway Traffic Safety Administration (NHTSA), and the National Institute for Occupational Safety and Health (NIOSH).

OSHA in particular dramatically changed the landscape of workplace safety, and is sometimes viewed as “the culmination of 60 or more years of effort towards a safe and hazard-free workplace.”"

“McDonald's should not be held responsible for the labor practices of its franchisees, the National Labor Relations Board ruled on Thursday. ...The federal agency, in charge of enforcing U.S. labor law, delivered the latest ruling in a years-long union case that sought to hold the fast food chain liable for the treatment of all workers at both corporate and franchise locations. The agency, also known as NLRB, directed a federal administrative law judge to approve a settlement that had earlier been reached between McDonald's, its franchisees and the workers who had alleged labor-law violations.”

“The government's labor-law prosecutor at the time asked the judge, Lauren Esposito, to review the complaints and consider McDonald's a ‘joint employer’ of franchisees accused of violating labor laws. ...The SEIU and the Fight For $15 on Thursday called the board's ruling on the McDonald's case illegitimate, saying they would ‘forcefully’ appeal ... McDonald's welcomed the NLRB's ruling...”

“Worker advocacy groups have long argued that many companies use contracting and franchising as a shield from responsibility for workers who make their business possible. In multiple lawsuits, unions and groups have pushed for McDonald's to be designated as a ‘joint employer,’ which would also help the efforts to organize workers and bargain for higher wages. McDonald's has fought against the joint-employer designation because it would have ‘a major impact on their business... Separately, the NLRB is expected to undo an Obama-era policy that made companies jointly liable for labor violations by their contractors and franchisees. NLRB proposed the rollback in September 2018, and the agency's spokesman said the final rule is expected in 2020.”

NPR, December 12, 2019: “McDonald's Not Responsible For How Franchisees Treat Workers, U.S. Agency Rules,” by Alina Selyukh

Politico, December 13, 2019: “McDonald's notches NLRB victory,” by Rebecca Rainey 

CNN, December 13, 2019: “Labor Board sides with McDonald's in landmark case,” by  Danielle Wiener-Bronner

NLRB, “McDonald's USA, LLC, a joint employer, et al.” (Docket Activity)

NLRB, “ McDonald's USA, LLC: Amended Board Decision” (39 pages, PDF)

NLRB, December 12, 2019: “Board Approves McDonald's Settlement”

Joint employer

The Labor Department and the National Labor Relations Board were each expected to release, in December, regulations that establish (under the Fair Labor Standards Act and the National Labor Relations Act, respectively) when to classify a business a "joint employer," jointly liable for labor violations committed by its contractors and franchisees. But that deadline may slip into January. DOL's version is being reviewed by the White House budget office.”

Politico Morning Shift: Regulatory Corner, December 20, 2019: “REGULATORY CHECKLIST: Federal labor agencies have several significant employment-related regulations to get out the door in the next 11 days or early in the new year”