Who Will Be Labor Secretary?

Detail from Labor, Charles Sprague Pearce (1896) – Public Domain

Progressives and some on the left supported Joe Biden. So far, they have received nothing in return. One possible gift remaining is labor secretary – if Biden appoints someone like Senator Bernie Sanders or Clinton’s former Secretary of Labor Robert Reich, Biden can claim that he didn’t utterly cold-shoulder his progressive supporters. One appointee out of dozens isn’t much, some might even say it’s a paltry left-over from the feast, but it’s a whole lot better than zero. That’s because the department of labor is pivotal – and it’s been run for the past year by Eugene Scalia as the Department for the Betterment of Corporations at Workers’ Expense. Before that Alexander Acosta was secretary of labor. He wasn’t exactly a champion of workers’ rights either. In fact, he was kinder to Jeffrey Epstein than to labor.

Some will doubtless carp that lefties like Reich or Sanders will never snag senate approval. Well, for once the Dems could play hardball. Biden could use the Vacancies Act to appoint someone for 300 days, if he times making the appointment during the 60 days after his inauguration, because the act allows him to name someone to serve “during the pendency of a nomination.” If Mitch McConnell’s senate won’t consider Sanders or Reich, for instance, fine. Let Biden ignore these reactionary corporatists and appoint a progressive acting secretary. A labor secretary can do a lot of good in a year. Then later Biden might be able to make a recess appointment of Sanders or Reich – and recess appointments can last as long as two years. It could require a lot of finagling, but it’s doable, if there’s a will. Of course, if the Dems win the Georgia senate races, thus regaining senate control, then they have no excuse not to appoint a progressive labor secretary.

It’s no secret that labor has taken a beating in the past four and a half decades. Hostile supreme court rulings, the general absence of pro-union legislation and labor’s inability to erase anti-union laws, specifically Taft-Hartley – which prohibits wildcat strikes, secondary boycotts, solidarity strikes, closed shops, mass picketing and direct union donations to federal political campaigns – all emaciated the labor movement. As a result, the standard of living for working-class Americans plunged. Without union protections, the curse of precarity, i.e. gig employment, flourishes like poison ivy in labor’s garden. The number of people working two or three jobs just to stay afloat mushroomed. The U.S. became one of the most economically unequal countries on the globe. These evils all spring from anti-union soil, from mind-numbing free-market religion and from plutocrats consciously waging class war, and winning, while workers get clobbered.

On the legal front, things looked poor for labor before the supreme court ascension of radical right-winger Amy Barrett. Now they look worse, if that’s imaginable. In June 2018, the court ruled against labor in its Janus v. AFSCME decision that public sector union fees from non-members were illegal, despite benefits accruing to those non-members from union deals. This decision effectively neutered public sector unions – the last bastion of serious labor representation in the U.S.

As of August 2019, 7.1 million public sector workers belonged to a union. That number will surely drop, thanks to Janus. According to Shaun Richman’s book, Tell the Bosses We’re Coming, much of labor’s problem with the courts springs from labor law’s roots in the commerce clause. He argues that the solution is to anchor labor rights in the first, fifth and thirteenth amendments. That means legislation; there’s no other way to reframe things. The outlook for any such legal recast surviving Mitch McConnell’s senate is dismal. In law and jurisprudence, the deck is stacked against labor. That’s the way congress and the courts have wanted it. Now more so than ever.

So that leaves the National Labor Relations Board and the secretary of labor. The secretary oversees the department of labor, regarding how laws affect unions, the workplace and employer-employee disputes, and also enforces current laws. Stiff enforcement regarding wage theft would have a huge impact, boosting ordinary people’s incomes immediately. Also, an active secretary of labor can enforce workplace safety and minimum wage laws. If these matters don’t seem earthshaking to you, recall that between 2009 and 2016, the Obama DOL recovered nearly $2 billion in back wages for workers. The department can also expand labor protections.

So if labor can’t win in the courts – and it can’t, not with this supreme court – it can win administratively. Arguably unions also have better chances through the department of labor than through congress. True, back in February, House Democrats passed a colossal labor wish list. The bill was called the Protecting the Right to Organize Act. It would reclassify gig workers so they can join unions and would sweep away state right-to-work laws. The Protecting the Right to Organize Act is wonderful, but it had zero chance of senate passage. When it passed the House, Bernie Sanders was still a viable presidential candidate and, as such, one of the most high-profile pro-labor politicians since FDR. That political moment has now vanished.

The big picture for labor is grim. Part of the problem is geo-political. Without a bi-polar world, without the threat embodied in the communist empire of the now defunct USSR, capital has been unbound for three decades. We see what that has wrought: planet-wide wealth inequality not seen since the Gilded Age. Throughout the global south, billions are dispossessed and living in poverty, while in the north, capital assaulted and eroded the social welfare state, pulverizing benefits long taken for granted, as it made life worse for working people. All this accelerated because capital need not worry about attacks from the left. There’s little there there. Comparisons of current efforts to FDR’s seismic pro-labor legislation and hopes to follow that path may be futile. FDR enacted his labor laws and social programs to save capitalism from communists, who were among the most effective and relentless labor organizers this country had ever seen.

Well, he did it. FDR saved capitalism. It’s ancient news, but FDR rarely gets credit for this dubious achievement. Now we all live in the aftermath of his victory, which includes, ironically, the dismantling of much of his pro-labor architecture. Biden has invoked FDR. The least he can do is appoint a labor secretary who respects union achievements from the Roosevelt era. Plenty of working people voted for Biden. Now he should return the favor.

Eve Ottenberg is a novelist and journalist. Her latest book is Lizard People. She can be reached at her website.