If Elon Musk and the nebulous Department of Government Efficiency have anything to say about it, the labor relations regime that has been in place for ninety years could come to an abrupt end during Donald Trump’s second presidency.

Passed in 1935, the National Labor Relations Act (NLRA) codified union representation and collective bargaining rights for workers. Union membership boomed in the 1930s and 1940s, and it continued to grow even after the 1947 Taft-Hartley Act, which amended the NLRA to make it harder for unions to organize new members.

In the postwar period, unions became complacent, partly as a result of new legal restrictions and partly out of an acceptance of managerial capitalism. They were thus unprepared for the assault of the business class and the Republican Party during the Ronald Reagan years, which was generally met by the Democratic Party with indifference. Union density has been in decline for decades, and it has continued to drop even among a recent surge in new interest in and approval for unions.

Under President Joe Biden, the National Labor Relations Board (NLRB), the administrative body tasked with carrying out the NLRA, took many actions favorable to unions. It created new rules for the swift processing of union elections and stricter penalties for employer misconduct. It ruled that Amazon was a “joint employer” of its subcontracted delivery drivers. And most recently it banned so-called “captive audience” meetings, where employers use work time to bring employees together and let them know their opinions on unions.

These were all beneficial rule changes for organized labor, and in all likelihood, they will all be reversed by a Trump-appointed board. But we should not be lulled into thinking that all of labor’s problems have an R next to their name.

Every year for the last four years, union density has declined — and under the current labor law regime, even in the best of administrative circumstances, it’s difficult to imagine a reversal in this trend. A mere 1 percent uptick in density would require adding more than a million workers to organized labor’s ranks. With the growth in the labor market and regular union losses elsewhere through plant closures or decertifications, actually achieving 1 percent growth would probably mean organizing more like two million workers.

In 2023, in what was called a “banner year” for the labor movement, 99,116 workers were organized in NLRB representation elections, and 115,551 voted in elections. That’s a great win/loss proportion, but the numbers are a mere fraction of what would be required even to keep up with labor market growth. Even were unions willing and able to resource an effort ten times this size (again, the bare minimum required for a possible 1 percent increase in union density), the legal constraints on new organizing efforts would limit the fruits of such expenditures. In addition, the perpetually underfunded NLRB would not be in a place to process all of those elections, even under a friendly Democratic administration. Organized labor’s problems are thus structural, extending far beyond the incoming Trump administration.

The NLRA was a great victory for the ascendant labor movement of the 1930s, and it’s a historical tragedy that, as labor law professor Ahmed White told me, “a law that was initially enacted for the purpose of expanding workers’ rights… now works as a shackle, a prison for unions.” I would only add that it is a shackle under both Democratic and Republican administrations. While the former might be friendlier to labor’s cause in certain ways, they have also consistently balked at even modest labor law reform over the past few decades.

What the threats from Musk and DOGE should prompt labor to do, then, is not to hold out hope for a revamped Democratic Party but rather to seek out new forms of leverage and invest in new strategies for worker empowerment outside of the constraining boundaries of the NLRA. Where it’s possible to win NLRA-sanctioned union recognition and collective bargaining, a representation election is still the surest path to worker empowerment in the United States. But it is this path for such a small percentage of workers every year that it behooves the labor movement to find new forms of strategic and organizational leverage, even if only to make the NLRB election process a more viable one.

In a new report from the Center for Work and Democracy at Arizona State University, my coauthors and I examine contemporary efforts to do just that. We found many promising experiments out there: in California, a recently established Fast Food Council could create the regulatory conditions for state-level sectoral bargaining. In Arizona, health care workers have formed an organization of 2,000 dues-paying members around the citizen-driven ballot initiative process. In Minneapolis, a worker center is partnering with unions in a novel use of a labor standards council in the construction industry.

These experiments and many more are seeking to empower workers and redistribute wealth outside of the NLRA framework. Some are changing conditions in certain industries so as to make the NLRB election process a more feasible one. Many have notable successes to their name and could scale and become sustainable under certain conditions. None offers the key to labor movement revitalization in the United States, and labor is likely going to have to push much more directly against the tactical and organizational constraints of the NLRA to really be successful. But these cases at least point in the direction of a more eclectic and experimental labor movement that is willing to confront its own strategic impasse.

At the same time, it’s important to note that not every “alternative” labor empowerment effort is a worthy one. There are many bold claims being made out there for strategies that do not truly promise labor movement revitalization, or are at best one component of a larger program. There’s also a preponderance of foundation funding in the so-called “alt-labor” world that has skewed the traditional orientation of the labor movement. Labor needs strategic innovation and courage today, but that urgency should not become an excuse to lower horizons or invest in experiments that do not fundamentally empower working people or significantly redistribute wealth.

The labor lawyer Robert Schwartz recently made the following comment about the possible gutting of the NLRB under Trump: “The ruling class takes a chance by gutting the NLRA — workers and unions may press for their demands in the streets, a venue where they have the advantage.” The unstated implication here is that the NLRA, in its current form, might be an essentially pro-employer law, and that by playing within its rules, labor is trapped in a losing game. It’s important to keep this in mind amid the current attacks on the NLRB. Labor’s problems are much bigger than Trump, Musk, or DOGE.