Today, legislation to reform our nation’s labor law was introduced by Senator Patty Murray (D-WA) and Representative Bobby Scott (D-VA), with the support of labor advocates, including the AFL-CIO. The Workplace Action for a Growing Economy (WAGE), if passed, would provide significant new protections for workers to organize and join a union without fear of employer intimidation. The WAGE Act would give workers the right to sue in federal court if they are disciplined, fired, or otherwise discriminated against by employers for exercising their right to organize a union.
Why would this make a difference? Consider an extraordinary experiment in labor relations that recently played out in Pittsburgh, Pennsylvania.
This summer, in the largest union election of its kind in the city’s history, a group of 1,200 service, maintenance, and technical employees at Pittsburgh Allegheny General Hospital (AGH) voted to join SEIU Healthcare Pennsylvania. Though the organizing campaign began only a few short months earlier, the workers voted 669 to 166—that’s 80 percent in favor—to join the union.
In an era of fewer union elections with smaller bargaining units, the election at AGH is in part remarkable for its size. For instance, in 2014, the median size of bargaining units in elections was twenty-six workers, and in 2010 only five elections were held nationwide with a bargaining unit over eight hundred workers, representing 0.3 percent of all elections.1
AGH is an example of how the nation’s labor laws should work. The voice of the workers gets expressed through a campaign and vote, without coercion or intimidation by the employer.
Less than four miles away from AGH, across the Allegheny River, it was a much different story. The service workers at UPMC Presbyterian Hospital have struggled for over three years in an organizing campaign with SEIU Healthcare Pennsylvania, with little progress.
So why the significant difference? Are the service workers at AGH simply tougher, more determined, with a greater sense of solidarity than their fellow workers a few miles south? Is it, to paraphrase the New Yorker’s Hendrik Hertzberg, that the AGH workers “are by nature tough, hardened militants or have bulging, ropy forearms,” or does it have very little to do with the workers’ interests in a union and everything to do with the respective employer’s conduct?
UPMC has been notoriously anti-union. It has hired teams of outside consultants to aid in its efforts at keeping the union out, engaging in conduct that either rides the line of legality or, in many instances, crosses it. It has engaged in illegal surveillance of employees with union sympathies. It has disciplined and fired employees for being involved in union activities (with some of the employees being fired, reinstated under a settlement agreement, and then refired shortly after). It has even been found to have set up an illegal company union. Under these conditions, it has been impossible to hold an election free of coercion.
On August 27, the National Labor Relations Board (NLRB) confirmed the unlawful actions of UMPC. In a scathing 123-page decision, the board judge found that UPMC engaged in significant and systematic violations of workers’ rights under the National Labor Relations Act (NLRA).
Rather than being contrite, UPMC released an internal e-mail to all employees stating that, despite the NLRB’s finding, the failure of employees to win a union was because “our employees have shown little to no interest, despite [SEIU’s] three-year public and legal campaign against our hospital.” In its conduct and reactions to NLRB decisions, UPMC has revealed an attitude too often shown by many employers: a disregard for the processes and penalties afforded under the NLRA.
Under current law, the NLRB has limited enforcement tools to penalize employers for violating employee rights. The penalties and enforcement mechanisms of the NLRA are weaker than for civil rights and many other protections in the workplace. And of course, when the NLRB has used its limited powers forcefully, it faced threats of defunding from key Republicans in Congress.
The WAGE Act will provide meaningful protections for workers facing labor abuses and bring pro-labor legislation in line with the nation’s civil rights laws. Following suggestions from our 2012 book published by The Century Foundation, entitled Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice, the WAGE Act offers workers a private right of action in addressing labor law violations. Rather than having to rely solely on an administrative process that often provides inadequate remedies, such workers will be able to have their day in court. And, like other civil rights protections in the workplace, these workers will be able to recover attorneys’ fees and punitive damages. This means that not only will workers have access to the courts, but they will also have the means to address labor violations.
Among the WAGE Act’s other important provisions is one that directs the NLRB to seek a preliminary injunction to get a discriminated worker back to work when there is reasonable cause to believe that she was fired for exercising her labor rights. Currently, such workers often must wait for years to be reinstated, so this provision will lessen the toll such discrimination plays on workers’ lives. It will also diminish the effectiveness of firing workers who are active with the union in an effort to scare other employees from exercising their labor rights.
Additionally, the WAGE Act closes loopholes relied upon by employers by making them liable for violations by contractors, thereby stopping the growing practice of employers using contract labor as a shield from liability. Furthermore, it applies to all workers, regardless of immigration status, which reverses an unfortunate Supreme Court decision that exposed many immigrant workers to labor violations.
For too long, American workers have had their labor rights violated with impunity. Just as federal employment law has created a system of meaningful penalties and liabilities for employers that violate workers’ civil rights, the WAGE Act takes the important step of recognizing that labor rights deserve the very same protections.
1These are the most recent years that the National Labor Relations Board has released such data.