This week, two competing plans were presented by the Republicans and Democrats, each ostensibly aimed at helping middle- and working-class Americans. The Republicans presented a tax plan that House Speaker Paul Ryan described as being “for the middle-class families in this country who deserve a break. It is for the families who are out there living paycheck to paycheck, who just keep getting squeezed.” However, many tax experts have determined that the real winners in the proposed tax plan are corporations and the super-rich.
The Democrats did not propose a parallel tax proposal that would display their vision for a just society, but instead unveiled an alternative vision for labor law, one that would help fulfill the original promise made by the National Labor Relations Act (NLRA, first enacted during the Great Depression). Though it may seem that tax policy and labor policy have little in common, they each show the parties’ priorities in addressing income and wealth inequality and the future of the American worker. Where Republicans have identified the solution as providing more capital to corporations and the wealthy, so that they may create more jobs and pass down some of the wealth, Democrats have identified the solution in giving workers a proper voice in the workplace to demand higher wages and greater benefits.
This new set of labor law reform proposals were part of the Democrat’s “A Better Deal” agenda, named appropriately with a reference to FDR’s New Deal. The plan starts by highlighting two promises that federal labor law—signed by FDR in 1935 and then significantly amended in 1947—made to American workers: the right to organize a union and the right to collectively bargain their wages, benefits, and other terms and conditions of employment. These promises, the Democrats admit, have not been lived up to; A Better Deal is the beginning of rectifying that unfulfillment.
A Better Deal has several key components that, if instituted, would more fully support workers in exercising their rights to organize and bargain collectively. The proposals address three key areas essential to these rights: forming a union, ensuring a first contract, and protecting workers’ rights to act in solidarity with others.
Though many workers theoretically have the right to organize a union, too many workers are excluded from coverage under the NLRA, including independent contractors, public sector employees, agricultural workers, domestic workers, and others. These reforms would bring public sector workers under coverage of the NLRA, and protect them from the assault on their labor rights that many are facing in states across the country. Further, it would push back against the rampant misclassification of employees as either independent contractors or supervisors—statuses which exclude them from protections under labor law. These reforms address the growing number of freelancers in the American economy—which are estimated at 57.3 million—and the growing problem of misclassification of many of these workers.
In addition to eligibility, the plan also attempts to streamline union elections and mitigate the damage of coercive captive audience meetings, wherein employees are forced to attend anti-unionization presentations where it is often made clear how much employees risk in joining a union. These meetings are just one of many similar methods: employers have become quite sophisticated in using delay tactics and outside consultants to scare workers and defeat unionization drives. The Democrats’ new reform effort seeks to speed up elections so that it is on the workers’ timeline—rather than the employer’s—and to put strong rules in place that set aside the result of elections corrupted by illegal employer practices.
A Better Deal attempts to streamline union elections and mitigate the damage of coercive captive audience meetings, wherein employees are forced to attend anti-unionization presentations where it is often made clear how much employees risk in joining a union.
Once the employees form a union, employers often use bad-faith strategies, such as outright refusal to bargain, defiant bargaining, evasive bargaining intended to drag out negotiations, and peremptory bargaining that presents rigid positions and meets infrequently. These tactics are often used to avoid a first contract and break the newly formed union. As a result, less than half of newly formed unions are able to reach a first contract. A Better Deal addresses this problem by providing a path to mediation and arbitration of first contracts.
Once a union forms and has a contract, there are still many hurdles that workers may face, from the growth of so-called “right to work” laws that seek to divide workers and defund unions, to restrictions on strikes and secondary boycotts (which are applied against companies that engage with other problematic companies). All of these rules have the effect of diminishing solidarity within the union and strengthening the employers’ position. A Better Deal addresses these significant problems by banning “right to work” laws, protecting striking workers from being permanently replaced, and lifting the bans on secondary solidarity actions. The lifting of bans on secondary boycotts and strikes, as well as on hot-cargo agreements, are particularly important because they would permit workers to leverage their power to help other workers who are being treated unfairly by their employers. In the modern intertwined economy, direct action can often have limited impact, but secondary action can yield real results.
Lastly, A Better Deal would institute the long-overdue increase in penalties against employers who violate workers’ rights. The plan states that it will “hold bad actors individually responsible, and give workers the option of holding violators accountable in court. Using the Civil Rights Act as a model, this reform will deter companies from intimidating workers who exercise their rights.” Rick Kahlenberg and I have long argued for adopting a civil rights frame in protecting workers’ labor rights, by allowing them access to court, trial by jury, and increased damages. As long as employers know they can ignore workers’ labor rights with impunity, they will continue to act in a manner that prevents workers from acting on the promises made over eighty years ago.
While the current Congress will make things very difficult, supporting these protections has never been more urgent.