Labor Law That Would Support Organizing in Today’s Economy

Apr 3, 2014Richard Kirsch

This is the fifth in a series of posts summarizing a new Roosevelt Institute paper report by Senior Fellow Richard Kirsch, entitled the "The Future of Work in America: Policies to Empower American Workers for and Ensure Prosperity for All." The paper report provides a short history of how the rise and decline of unions and then explores reforms in labor policy to empower American workers to organize unions and rebuild the middle class. Today’s post outlines possible policy solutions to several major challenges to organizing workers in today’s economy. Over the next year, the Future of Work project will be exploring many of these ideas in depth. Their inclusion here is to begin surfacing ideas, rather than as final recommendations for reform.

For decades, organized labor has supported federal legislation that aims to correct the imbalances in the NLRANational Labor Relations Act (NLRA), which favor employers and block unionization. The most recent push was for the Employee Free Choice Act (EFCA), which President Obama supported when he ran in 2008. However, in the face of threatened filibuster in the Senate by Republicans and a handful of Democrats, the President never made the issue a priority.

The list of potential reforms to the NLRA is as long as the law’s weaknesses. The top priority inof the EFCA was requiring employers to recognize a union once a majority of workers in the workplace had signed a card supporting the union. Card check elections could be expanded to include mail ballots and confidential on-line ballots as methods for demonstrating support from a majority of workers.

Other potential policies focus on leveling the playing field in union elections. Employers could be required to allow union representatives to have access to workers on the employer’s premises and be given equal time to speak to employees, when equal to the time employers spend campaigning against unionization.

Other reforms would create meaningful disincentives for employers, such as substantial penalties for retaliating against workers, rather than the current virtually meaningless penalty of requiring employers to provide back pay. Employers could also be prohibited from hiring replacement workers during a strike or lockout. Indeed, lockouts could be outlawed altogether.

While the reforms above are aimed at correcting long-established imbalances in labor law, other polices would tackle a big challenge in today’s economy. The nation’s biggest employers, fast-food chains and big box stores, have thousands of locations, each with a relatively small number of workers. Organizing these huge employers could be facilitated by allowing bargaining at multiple worksites. This would give unions the right to define the boundaries of bargaining units, either combining the units that exist within a single corporation or bringing together workers who labor for multiple employers within the same industry.

Another approach would require the creation of multi-employer consortia for the purposes of bargaining, allowing for workers to organize for better wages and working conditions in an entire industry.

Another policy would expand the use of hiring halls to a number of industries, potentially modeled after the construction industry. In construction, union members typically work on short-term jobs for multiple employers. These construction workers are hired through union hiring halls, and they receive health and retirement benefits from a multi-employer insurance fund administered jointly with the union.

To build on this model, employers in other industries could be required to hire workers through hiring halls, run by worker organizations. Employers would be required to pay into a fund run by the worker organizations, which would administer portable benefits - – including health coverage, retirement accounts, and earned sick days, family leave, and vacation - – earned by individual workers through their work with multiple employers,

Another transformational policy would be to end the requirement that a union win majority recognition in a given bargaining, with the responsibility to represent all the workers in that unit. Instead, unions would could be allowed to represent only those workers who choose to join the union. Members-only unions could operate across numerous employers within an industry, within a region or across a supply chain. Repealing exclusive representation would allow members-only unions to collectively bargain for their members and to represent only their members in grievances with their employers. A hybrid system would allow members-only unions to function until such time that a majority of workers vote to establish a union with the responsibility of exclusive representation.

In today’s economy, many workers are employed by companies that are largely or wholly dependent on huge companies that drive national and global supply chains. Labor policies must enable workers to seek decent wages and working conditions from those big companies, even if they do not work for them directly.

Companies like Walmart often contract with warehouse companies that almost exclusively handle Walmart-bound products. Policy changes to hold a dominant employer accountable for the companies that it effectively controls, would make a company like Walmart accountable for the conditions in those warehouses and require them to bargain with the warehouse workers. Similarly, it is common in the garment industry for a major retailer to require garment factories to produce items to the retailer’s specifications. The major company would be held accountable to the workers in those subcontracted garment factories. The dominant employer would be responsible if the controlled company violates labor laws, including labor standards, worker organizing and occupational safety and health protections.

Another approach would be to address the now-common practice of employers misclassifying workers as “independent contractors” in order to reduce compensation costs to employees and to exclude those workers from federal labor law protections. If workers are misclassified, all of the employers up the supply chain could be held legally responsible. Anti-trust and labor law should be changed to remove any barriers to worker organizations reaching agreements with a dominant employer that would apply to other firms in the supply chain.

Restoring the right to organize boycotts or strikes of companies in the supply chain, would be another tool for unions to pressure companies upstream or downstream from the company being organized.

Taken together, these measures would level the playing field for workers who now face a huge economic and legal imbalance as they seek a fair share of the enormous wealth being produced by huge, global employers.

Richard Kirsch is a Senior Fellow at the Roosevelt Institute, a Senior Adviser to USAction, and the author of Fighting for Our Health. He was National Campaign Manager of Health Care for America Now during the legislative battle to pass reform.

Share This