W. E. B. Du Bois said that race was the major issue of the twentieth century, and it may be that, based on the last forty years beginning at the end of that century, it is inequality as well as race that pose the major challenges of this century.1 The decline of organized labor first obtained the attention of commentators in the early 1960s and has galloped along at a crescendo-like pace during the past fifty years, accelerating during the Reagan era and continuing steadily into this century – and simultaneous with it the growing gap between productivity and pay, particularly since 1979 (productivity enjoying a 69.6 percent increase with hourly pay only increasing by 11.6 percent).2 As can be seen in Figure 8.1, Between 1973 and 2016, productivity grew six times faster than compensation. Initially, “[r]apid productivity growth brought rising prosperity to all, as Western societies rode the wave of expanding factory employment.”3

The challenge for the new increasing precariat has taken a number of forms some of which antedate the gig phenomenon itself, taking the form of new labels like that given to Walmart workers as “associates” – and more recently euphemisms like “taskers,” “driver partners,” “entrepreneurs,” “dashers,” and “earners” – all given to convince the workers that they are really a step above employee status much like the royal names given to slaves by their owners in the antebellum South.

In essence, democracy in the workplace and the promotion of trade union representation are central to the survival of a democratic society.4 As a labor lawyer, I tend to think that law has a special role to play in this process. Yet my experience derived from Washington and Sacramento, both as a scholar and a practicing lawyer, convinces me of the limits of law. Law is subordinate to other factors, including union devotion to resources, the necessary expenditures involved, and the creation of strategic tactics and vision in organizing the unorganized – as well as foreign competition, American investment abroad, and technological innovation. Law is subordinate and can only play a symbiotic role in the proper promotion of collective bargaining by a reorganized movement. Law, however worthy of reform, has never been the solution in the past and is unlikely to be so now.

The twentieth century witnessed the development of professional players’ unions or associations in virtually all of the major league sports,3 a development occurring well after the organization of professional sports. The process started with baseball4 and extended to other sports as well.5 Notwithstanding the absence of judge-made antitrust law,6 baseball was the first sport to develop institutionalized protection for its players due to a muscular union under the effective leadership of Marvin Miller from the 1960s onward.7 The other major sports like football,8 basketball,9 boxing, and hockey eventually followed suit.10

These past three or four centuries have seen bitter discord and inequity arising initially in the most base form of oppression, slavery itself. The centuries have seen turmoil, inequity, and some considerable movement forward. The great post–Civil War constitutional amendments, which owe their inspiration to Magna Carta itself, have set much of the framework as have legislation that was designed to improve conditions of the average worker in the past century itself. But President Lincoln’s great triumph was achieved through the Grand Army of the Republic on the ground and at sea – just as FDR’s New Deal was a background and inspiration for workers who sought self-help prior to the National Labor Relations Act (NLRA).

A fundamental challenge for the labor movement is the necessity to provide a message that resonates. This is a matter confused and hobbled by the fact that the problems posed for unions in employment relationships have their roots in history. The state plays a less ambitious role in the United States compared to Europe and Japan. The unions have stepped into a vacuum, occupied through the exercise of collective bargaining, and simultaneously attempted to promote state expansion so as to augment the bargaining process.

In the early part of the previous century, the American Federation of Labor provided funds for unemployment or distress suffered by their own members.1 This may help explain the fact that, at that time and for a while thereafter, the federation had little or no enthusiasm for unemployment compensation statutes mandated by the state. This tradition is reflected in the restricted scope and content of unemployment compensation law, a product of the Southern Democratic part of the New Deal coalition.

The lines of rigid conflict between political parties noted in Chapter 1 were not always present prior to the New Deal and the post–New Deal era in which the Eisenhower administration functioned. In contrast to their party’s political position from the latter part of the twentieth century into the twenty-first century, Abraham Lincoln and Theodore Roosevelt were hardly hostile to unions and the interests of working people. Quite the contrary.

Musings and recollections about the “good old days” are integral to any discussion of organized labor today in the twenty-first century and its decline. In the United States, like Europe, the first forms of labor organization were the so-called mutual aid societies or craft guilds1 that were designed to limit entry into a trade or industry and to preserve standards.

The great labor changes of the 1930s, in the wake of the Roosevelt administration inauguration in the spring of 1933, took two forms. The first was not law or regulation at all. Anything but that. It consisted of the emergence of stoppages of considerable dimension in cities like Minneapolis, Seattle, and San Francisco, where the longshore strike was to emerge in 1934 (in both Seattle and San Francisco there was the possibility of a general strike, idling workers in many industries). Ambitious initiatives were now undertaken by both general unions (the Teamsters), as well as industrial unions, nascent labor organizations whose militancy frequently outstripped their counterpart American Federation of Labor (AFL) craft affiliates.