Project 2025 to a Working Stiff

It is not that I disagree that anti-worker policy designs for 2025 (“Project 2025”) crowd the minds of current Republican policy makers and dreamers. I agree with that general proposition. But it says not nearly enough. For the true design of worker weakness has been entirely bi-partisan since at least 1947 (with passage of the Taft-Hartley Act)  – and indeed goes back even further. The simple truth is that if workers go “on strike” to compel employers to provide improvements to their working conditions they can be “permanently replaced.” The employer can hire replacements for them who retain the strikers’ jobs until the employer and the replacement decide otherwise. This calamitous reality—ensconced in court law since 1938—is found nowhere within the text of the National Labor Relations Act. It is one of many fictions concocted by courts, and acquiesced to by bi-partisan coalitions, since the NLRA’s inception. Another of those fictions is the “lockout.” Employers engaged in a bargaining struggle with workers can simply “lock out” the involved workers to pressure the workers into accepting the employer’s bargaining position. American sports fans know all about the device. It is devastating to workers. Even if it looks like workers may strike, employers *bang* - replace them to control the timing of a work stoppage.

I could legally complicate the preceding paragraph quite easily, but I prefer not to do it. Control of work stoppages essentially destroys the broad effectiveness of “legal” labor power. And workers know it. Want to know why it is so difficult for organized labor to reach the anemic goal of organizing even 10% of the private sector workplace? Reasonably sophisticated employees know that if they organize they will simply “gone” in the intermediate time horizon. A work stoppage gets you gone quickly unless you are in one of a handful of industries with historic union density – in which case there is at least the possibility that strikes can be conducted. But all other workers – and again, they know who they are, are simply out of luck in this regard.

I think many workers can accept that the National Labor Relations Board (whatever that institution may mean to them) can have an impact in protecting their organizing rights in the short run. Maybe the NLRB can stop threats and discriminatory discharges of Starbucks workers. Maybe it can establish that workers can’t be forced to take off “Black Lives Matter” face masks or aprons. But here is the thing: an employer cannot be forced (as a matter of law) to provide a raise that it was not already prepared to give. Additionally, workers get injured in the Amazon warehouse because that is part of the business model. You can’t change it unless you strike the bejeezus out of the company; and you can’t do that without getting workers fired or “replaced.” Even replacement wouldn’t be impossible if you were dealing with a relatively weak company in a state that provided unemployment benefits to striking workers (the exception rather than the rule).

Then there are other economic realities. A unionized company does not have to bargain over (let alone seek the union’s agreement on) a decision to close or relocate. Anyone in the work force during the 1980s knows there is no way to stop employers from outsourcing work once they have decided to do it. And if it is cheaper and logistically feasible labor law is no obstacle. The most the law requires is that the employer bargain over the “effects” of  its “decision.” Sure, if you had a 45% union density rate with union contracts requiring the employer to bargain over outsourcing, maybe you’d have something. But we haven’t ever had anything like that in this country except (a little) during World War II. Most employees are not unionized (94%), and most who are unionized work under union contracts permitting a wide range of subcontracting. Again, the relatively sophisticated worker knows that, if there is an economic downturn, they are gone. Labor law may provide you (in “effects” scenarios) what the WARN Act claims to provide –  (very) little notice of closure.

What has been laid out so far are the mean streets of labor law. What would the Republican 2025 plan entail? Cutting through code, establishing that political conflicts of interest can support fair representation claims against unions. In other words, if a union pursues a “political” interest that is of value to its alliance with the Democratic party, but is not necessarily in the interests of workers, the NLRB could find that the union violated its “duty of fair representation.” If I really wanted to put you to sleep, I’d give you a lecture on “DFR law.” This objective continues a long-term goal of the Republicans for harassing unions; and the back and forth around the issue has been ongoing since the Supreme Court’s 1988 Beck decision. The bottom line: unions can only “charge” workers they represent for “representational” activities. And you can jam unions up requiring them to justify their expenditures. Eventually, this can implicate the First Amendment, but basically the issue is whether you are compelling “Republican employees” to subsidize the Democratic party by forcing them to pay for a lot of non-representational stuff—like supporting Al Gore for president. Making things hard for unions is generally bad for employees but relies heavily on the notion that unions are functioning within the NLRA, the weakness of which we have been discussing. Without the realistic ability to strike, the NLRA does no more than safeguard the statutory representative’s (the union’s) right to make proposals. “How’d your talk with Jeff Bezos go? Did you talk him into your point of view?” When I became aware of this detail—decades ago—I realized that such expectations were in reality a kind of mysticism. “If we can just sit down and talk, I just know—in my heart of hearts—that things will work out.”

Project 2025 would also have the National Labor Relations Board returning to Trump-era standards for joint employer and independent contractor status. These are important issues. Everyone knows that all are under the control of just a handful of mega corporations. Wouldn’t it be a better world—under a worker Realpolitik lens—if those corporations were “bound” by labor law? Similarly, it is blindingly obvious that only employees benefit from “labor and employment law.” No employees; no employment law (and maybe the kind of in-between, sub-employment law that Democrats have been negotiating and selling in California and Massachusetts). But inter-elite negotiations obscure just how bad the existing substantive law has been for workers. In essence, plutocrats want relief from what was weak. This is a kind of game meant to erode baselines from which workers could negotiate upwards in the future. The game is in persuading workers to believe that Trump-era standards are much different than Reagan-era standards. They are not – and that is the point. Every election is claimed to represent a life-and-death struggle that we have never seen before. The problem is that when you have reached my age without joining a political side, you have not only seen it all before—you are willing to say so.

Then there is the secret ballot controversy. Republicans in Congress want to require that unions be recognized based solely on secret ballot elections. This desire simultaneously attacks the “card check” process in which an employer may lawfully “recognize,” without an election, a union having a majority of the workers sign cards supporting the union; and the NLRB’s recent decision allowing imposition of a “bargaining order” upon an employer that has not committed an unfair labor practice but has also not responded to a union’s claim of majority status. Most unions are recognized after a secret ballot election, but “card check” has come under scrutiny recently (it seems to come up every decade), including in some (possibly preempted) state legislation seeking to restrict the practice. (A fight over democracy in the current political moment will probably be viewed with interest by future historians). Again, the importance of the contest between industrial stability and employee free choice depends heavily on the viability of the underlying substantive law (the NLRA) that is at issue. The freedom (or not) to vote (or not) is seriously impacted by the strength or weakness of the prize.

The scuttlebutt is that the union win rate has increased at the NLRB from 62.7% (in 2008) to 73.8% (in 2024). But the union density during that period has not increased at all (and that is probably putting things charitably). How concerned will the average worker be if Jennifer Abruzzo (the current, Democratic General Counsel of the NLRB) is fired on the inauguration day for a Republican president in the same way that Peter Robb (the former Republican General Counsel of the NLRB) was dispatched on the inauguration day of the Democratic incumbent)? You know the answer: not concerned at all.

Of course, nothing succeeds like success. I have a very simple metric for determining when the NLRB is doing better: union density will go up. But to the extent it does not that may be because workers are much more knowledgeable about the back end of labor law than politicians and elite policy workers imagine. Until there is real discussion of the right to strike, limitations on permanent replacements and lockouts, and enhancing the requirement of employers to negotiate over “entrepreneurial subjects,” workers are likely to know “what time it is not.” If history is any guide—I remember like it was yesterday the appearance of the George W. Bush Administration during which I was a newly-minted NLRB attorney—the Republican Project 2025 will be counterintuitively supportive of the essence of American labor law.