In the wake of passing a budget bill that sacrificed the well-being of working families to support tax giveaways for corporations and billionaires, Republicans on Capitol Hill are trying to recast themselves as the party of working people. As part of this effort, last week Senate HELP (Health Education Labor and Pensions) Committee Chair Bill Cassidy (R-LA) introduced a slate of proposals supposedly intended to “strengthen workers’ rights” and “deliver on President Trump’s pro-worker agenda.” Cassidy has also held hearings on labor law reform, touting the need to find “A Pro-Worker Way Forward.”
While this newfound focus on workers’ rights should be a positive development, unfortunately, a closer look reveals that the new Republican “pro-worker” agenda is largely a repackaging of many of the same anti-worker and anti-union ideas that big corporations have been pushing for quite some time. While this rebranding includes a few new ideas, there is nothing that will make significant progress to help workers succeed, and many ideas that will set workers back. Calling this legislative package “pro-worker” brings to mind a quote from the famed philosopher Inigo Montoya: “You keep using that word. I do not think it means what you think it means.”
It is not pro-worker to intimidate people trying to exercise their rights.
One of the most problematic Republican proposals is found in the Fairness in Filing Act. This bill would, among other bad ideas, authorize a civil penalty of up to $5,000 for anyone who files a charge with the National Labor Relations Board (NLRB) that is deemed “frivolous” or not in “good faith.” Rather than improving the filing process for workers, such a penalty would have a chilling effect, making workers think twice about filing legitimate claims.
By way of background, the National Labor Relations Act (NLRA) protects workers’ right to form and join a union and their right to act collectively to improve their working conditions. Any worker—whether in a union or not—has a legal right to join together with coworkers and speak out if they are not being treated fairly in the workplace, and it is against the law to retaliate against them for doing so. Workers who think their rights have been violated can file a charge against their employer with their local office of the NLRB. That charge is investigated by agency personnel, and—if it is found to have merit—the agency will pursue a case against the employer.
Some charges are filed by labor unions or employers, but the vast majority of people who file charges with the NLRB are just ordinary workers who suspect they’ve been treated unfairly. They typically don’t have lawyers and don’t have access to all the necessary information pertaining to their employment. (Usually, employers are the only ones that have access to workplace records, disciplinary histories, and other relevant information.) All the worker knows is that they got disciplined or fired, and they suspect it was because they spoke up on the job.
In such cases, the worker files a charge, and it is the agency’s job to conduct an investigation and see if there was a potential violation of the law. The agency performs this screening function well, and is not in the habit of pursuing frivolous charges; more than half of all charges filed are withdrawn or dismissed.
There is real danger in creating a financial penalty for filing “frivolous” charges. Workers already put their jobs on the line when they speak up about unfair treatment. The added prospect of a $5,000 fine will add a tremendous level of intimidation to this already scary process, and dissuade workers from trying to enforce the law. Keeping workers scared and quiet is exactly the opposite of how we build worker power and a strong middle class—it will just ensure that corporate abuses are more likely to go unchecked.
While Cassidy claims that the purpose of his bill is to reduce the agency’s backlog of cases, the backlog is not caused by the number of charges being filed—which, while increasing, is not appreciably higher than a decade ago. It’s caused by the massive loss of funding and personnel that the agency has experienced in recent years. The NLRB has lost 30 percent of its workforce over the past decade, and just doesn’t have the people or the money it needs to do its job. (And this problem will only get worse if President Trump and Republicans in Congress succeed in the future in their ongoing efforts to make additional deep cuts to the agency’s resources.)
Indeed, the ultimate irony of the Cassidy bill is that it would be a historic first—the NLRB can’t issue a fine against anyone who violates the law, regardless of how bad the illegal conduct was or how often it has occurred. The agency can only provide make-whole relief for victims, such as reinstatement or backpay for lost wages. Because it can’t assess fines or penalties, the remedies available under the NLRA are largely ineffective at curbing corporate abuses. Democrats have tried to address this problem for years in their comprehensive labor law bill, the PRO Act, by authorizing real penalties for labor law violators. It is ironic indeed that the Republican “pro-worker” agenda would also create the first monetary penalties ever under the NLRA—but Republicans would use them to punish workers.
It is not pro-worker to make it harder to form and join a union.
The irony doesn’t end with the Fairness in Filing Act. Another central piece of the GOP labor platform—the RESULTS Act—claims to help workers by making it harder for them to form and join unions.
Currently, workers can choose a union as their representative in one of two ways: (1) voluntary recognition, where a majority of workers present signed authorization cards to their employer indicating that they have authorized a particular union to represent them and the employer voluntarily agrees to recognize and bargain with the union; and (2) NLRB elections, where workers request an election administered by their local NLRB office by providing proof of support from at least 30 percent of employees. The NLRB then holds an election where it will certify the union as the workers’ representative if more than 50 percent of the voting employees support the union.
The RESULTS Act would eliminate voluntary recognition altogether, and make it harder to have a valid union election. Eliminating voluntary recognition denies workers access to the smoothest and most expeditious path to start bargaining for a contract, adding unnecessary delay to a process in which both the workers and the employer agree about the appropriate path forward—hardly a “pro-worker” reform.
But even after forcing all workplaces to have an NLRB election (whether they want one or not), the RESULTS Act then makes that process far more difficult by requiring that two-thirds of eligible employees must have voted in the election for it to be deemed valid. Workers would be forced to have an election that looks like no democratic election they have ever participated in, because their votes could be invalidated if others choose to sit out. That can create an impossible hurdle to having a valid election, particularly in large workplaces. By way of example, if 66 percent of the voting age population (that is, possible voters) were required to participate in presidential elections for the election to be considered valid, our country would not have had a valid presidential election since 1900.
Chairman Cassidy claims that the RESULTS Act is nonetheless beneficial to workers because it provides a better path than current law for securing a union contract once a union is certified. This claim is dubious—the bill makes some reforms, but unlike the Democratic PRO Act or the Republican-sponsored Faster Labor Contracts Act, the RESULTS Act does not provide a guaranteed path to a contract through binding arbitration. Cassidy’s claim also puts the cart before the horse: if there’s no viable path to selecting a union, it doesn’t really matter how the bargaining process plays out—you’ll never be able to get to bargaining in the first place.
Blocking the path for workers to choose a union is completely out of step with what voters of all political persuasions want. Recent polling shows that unions are more popular than ever, and that a majority of workers would choose a union if they could. Even Republican-backed polling confirms that GOP voters have increasingly favorable attitudes toward unions (especially among younger voters) and support many pro-union reforms.
Looking Ahead
Real, bipartisan labor law reform would clearly be a welcome change for the working people. But the Cassidy bills are a step in the wrong direction. No amount of rhetoric can hide the real impact of these damaging reforms. Americans should not be fooled by the GOP’s new pro-worker marketing—any real effort to build worker power means giving workers a voice and expanding their ability to choose union representation. Hardworking Americans deserve no less.
Tags: budget, workers rights, National Labor Relations Act, worker protections
The GOP Is Trying to Rebrand Its Anti-Worker Agenda. Don’t Believe Them.
In the wake of passing a budget bill that sacrificed the well-being of working families to support tax giveaways for corporations and billionaires, Republicans on Capitol Hill are trying to recast themselves as the party of working people. As part of this effort, last week Senate HELP (Health Education Labor and Pensions) Committee Chair Bill Cassidy (R-LA) introduced a slate of proposals supposedly intended to “strengthen workers’ rights” and “deliver on President Trump’s pro-worker agenda.” Cassidy has also held hearings on labor law reform, touting the need to find “A Pro-Worker Way Forward.”
While this newfound focus on workers’ rights should be a positive development, unfortunately, a closer look reveals that the new Republican “pro-worker” agenda is largely a repackaging of many of the same anti-worker and anti-union ideas that big corporations have been pushing for quite some time. While this rebranding includes a few new ideas, there is nothing that will make significant progress to help workers succeed, and many ideas that will set workers back. Calling this legislative package “pro-worker” brings to mind a quote from the famed philosopher Inigo Montoya: “You keep using that word. I do not think it means what you think it means.”
It is not pro-worker to intimidate people trying to exercise their rights.
One of the most problematic Republican proposals is found in the Fairness in Filing Act. This bill would, among other bad ideas, authorize a civil penalty of up to $5,000 for anyone who files a charge with the National Labor Relations Board (NLRB) that is deemed “frivolous” or not in “good faith.” Rather than improving the filing process for workers, such a penalty would have a chilling effect, making workers think twice about filing legitimate claims.
By way of background, the National Labor Relations Act (NLRA) protects workers’ right to form and join a union and their right to act collectively to improve their working conditions. Any worker—whether in a union or not—has a legal right to join together with coworkers and speak out if they are not being treated fairly in the workplace, and it is against the law to retaliate against them for doing so. Workers who think their rights have been violated can file a charge against their employer with their local office of the NLRB. That charge is investigated by agency personnel, and—if it is found to have merit—the agency will pursue a case against the employer.
Some charges are filed by labor unions or employers, but the vast majority of people who file charges with the NLRB are just ordinary workers who suspect they’ve been treated unfairly. They typically don’t have lawyers and don’t have access to all the necessary information pertaining to their employment. (Usually, employers are the only ones that have access to workplace records, disciplinary histories, and other relevant information.) All the worker knows is that they got disciplined or fired, and they suspect it was because they spoke up on the job.
In such cases, the worker files a charge, and it is the agency’s job to conduct an investigation and see if there was a potential violation of the law. The agency performs this screening function well, and is not in the habit of pursuing frivolous charges; more than half of all charges filed are withdrawn or dismissed.
There is real danger in creating a financial penalty for filing “frivolous” charges. Workers already put their jobs on the line when they speak up about unfair treatment. The added prospect of a $5,000 fine will add a tremendous level of intimidation to this already scary process, and dissuade workers from trying to enforce the law. Keeping workers scared and quiet is exactly the opposite of how we build worker power and a strong middle class—it will just ensure that corporate abuses are more likely to go unchecked.
While Cassidy claims that the purpose of his bill is to reduce the agency’s backlog of cases, the backlog is not caused by the number of charges being filed—which, while increasing, is not appreciably higher than a decade ago. It’s caused by the massive loss of funding and personnel that the agency has experienced in recent years. The NLRB has lost 30 percent of its workforce over the past decade, and just doesn’t have the people or the money it needs to do its job. (And this problem will only get worse if President Trump and Republicans in Congress succeed in the future in their ongoing efforts to make additional deep cuts to the agency’s resources.)
Indeed, the ultimate irony of the Cassidy bill is that it would be a historic first—the NLRB can’t issue a fine against anyone who violates the law, regardless of how bad the illegal conduct was or how often it has occurred. The agency can only provide make-whole relief for victims, such as reinstatement or backpay for lost wages. Because it can’t assess fines or penalties, the remedies available under the NLRA are largely ineffective at curbing corporate abuses. Democrats have tried to address this problem for years in their comprehensive labor law bill, the PRO Act, by authorizing real penalties for labor law violators. It is ironic indeed that the Republican “pro-worker” agenda would also create the first monetary penalties ever under the NLRA—but Republicans would use them to punish workers.
It is not pro-worker to make it harder to form and join a union.
The irony doesn’t end with the Fairness in Filing Act. Another central piece of the GOP labor platform—the RESULTS Act—claims to help workers by making it harder for them to form and join unions.
Currently, workers can choose a union as their representative in one of two ways: (1) voluntary recognition, where a majority of workers present signed authorization cards to their employer indicating that they have authorized a particular union to represent them and the employer voluntarily agrees to recognize and bargain with the union; and (2) NLRB elections, where workers request an election administered by their local NLRB office by providing proof of support from at least 30 percent of employees. The NLRB then holds an election where it will certify the union as the workers’ representative if more than 50 percent of the voting employees support the union.
The RESULTS Act would eliminate voluntary recognition altogether, and make it harder to have a valid union election. Eliminating voluntary recognition denies workers access to the smoothest and most expeditious path to start bargaining for a contract, adding unnecessary delay to a process in which both the workers and the employer agree about the appropriate path forward—hardly a “pro-worker” reform.
But even after forcing all workplaces to have an NLRB election (whether they want one or not), the RESULTS Act then makes that process far more difficult by requiring that two-thirds of eligible employees must have voted in the election for it to be deemed valid. Workers would be forced to have an election that looks like no democratic election they have ever participated in, because their votes could be invalidated if others choose to sit out. That can create an impossible hurdle to having a valid election, particularly in large workplaces. By way of example, if 66 percent of the voting age population (that is, possible voters) were required to participate in presidential elections for the election to be considered valid, our country would not have had a valid presidential election since 1900.
Chairman Cassidy claims that the RESULTS Act is nonetheless beneficial to workers because it provides a better path than current law for securing a union contract once a union is certified. This claim is dubious—the bill makes some reforms, but unlike the Democratic PRO Act or the Republican-sponsored Faster Labor Contracts Act, the RESULTS Act does not provide a guaranteed path to a contract through binding arbitration. Cassidy’s claim also puts the cart before the horse: if there’s no viable path to selecting a union, it doesn’t really matter how the bargaining process plays out—you’ll never be able to get to bargaining in the first place.
Blocking the path for workers to choose a union is completely out of step with what voters of all political persuasions want. Recent polling shows that unions are more popular than ever, and that a majority of workers would choose a union if they could. Even Republican-backed polling confirms that GOP voters have increasingly favorable attitudes toward unions (especially among younger voters) and support many pro-union reforms.
Looking Ahead
Real, bipartisan labor law reform would clearly be a welcome change for the working people. But the Cassidy bills are a step in the wrong direction. No amount of rhetoric can hide the real impact of these damaging reforms. Americans should not be fooled by the GOP’s new pro-worker marketing—any real effort to build worker power means giving workers a voice and expanding their ability to choose union representation. Hardworking Americans deserve no less.
Tags: budget, workers rights, National Labor Relations Act, worker protections