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The workplace democracy plan, explained (Part 1)

Originally published: Data For Progress on August 29, 2019 by C.M. Lewis (more by Data For Progress) (Posted Sep 05, 2019)

Bernie Sanders isn’t coming to play.

Last week, the Sanders campaign unveiled a wide-ranging plan to overhaul American labor law. If enacted it would be the most dramatic change to labor law since the 1947 passage of the anti-union Taft-Hartley Act, and would arguably match the changes from the National Labor Relations Act (NLRA, or “Wagner Act”) in scope and ambition.

But what does his plan actually mean for workers? Well, we’ve got you covered. Here’s part one of a breakdown of the eighteen points in the Workplace Democracy Plan. We’ll start with the first nine points of the plan, and explain it point-by-point.

POINT ONE: Provide unions the ability to organize through a majority sign up process, allowing the National Labor Relations Board (NLRB) to certify a union if it receives the consent of the majority of eligible workers.

In other words: card-check. Card-check means gaining legal representation for a union would be significantly easier. Under card-check a majority of eligible employees would sign union cards authorizing union representation, the NLRB would certify that the cards are valid and that it represents a majority, and the employer would be forced to recognize the union.

This isn’t a new concept. The “Employee Free Choice Act” (EFCA) was a major demand of organized labor during the first Obama administration, and the signature proposal under EFCA was card-check elections. A (small) number of states allow card-check elections for public sector employees, too.

Under current federal labor law, workers typically have to undergo a long, drawn out two-stage election. In that election, they have to

  1. first demonstrate at least 30% of the proposed bargaining unit supports an election
  2. then wait until a second election can be held

In between the two stages, employers know a campaign is underway and can utilize a full range of “union avoidance” (union busting) services to squash the effort. By mandating card-check workers would be free to organize together without the full range of boss coercion, intimidation, and threats union campaigns often face.

POINT TWO: Enact “first contract” provisions to ensure companies cannot prevent a union from forming by denying a first contract.

The “first contract” provisions would match the proposal contained in the “Workplace Democracy Act”: either party (the newly recognized union or the company) can request compulsory mediation if they fail to achieve an agreement within 90 days. If they fail to reach an agreement within a further 30 days of compulsory mediation, either party can submit the remaining issues to binding third-party arbitration.

EFCA also called for similar “first contract” provisions. Compulsory mediation would bring in Federal Mediation & Conciliation Services (FMCS) to work with the parties to reach an agreement. Any items not agreed upon by the parties would go through binding third-party arbitration. In binding third-party arbitration, an arbitrator would hear the open issues as presented by both parties, and craft a settlement both parties would be obligated to accept.

Although involving FMCS isn’t necessarily an ideal scenario—the government’s role isn’t to get a pro-worker contract, it’s to avoid industrial conflict—it would provide a clear incentive for both parties to bargain in good faith, and would ensure that newly organized bargaining units would get a first contract in a timely manner.

The reason this is important is simple: under current labor law, the war doesn’t end with winning a union election. Employers are well-versed in a range of tactics to delay bargaining a first contract, ranging from challenging the outcome of the election itself to protracted bargaining “in bad faith” (in other words, bargaining without the intent of reaching an agreement). In fact, research from the Economic Policy Institute—originally published in 2009 during the first EFCA debates—demonstrates that nearly a third of new unions fail to achieve a first contract within three years of winning their election.

The end result? Unions end up decertified without ever achieving a contract.

POINT THREE: Eliminate the “Right to Work for Less.”

“Right to Work”—in other words, the “open shop”—is one of the hallmark union-busting measures of the Right (note: employers fighting for the “open shop” goes back even further than the 1940s and was adopted as a policy of the National Association of Manufacturers in 1903). With Right to Work, everyone in a bargaining unit is protected by the union-negotiated contract, and everyone is entitled to union representation in employment matters, but they choose whether or not to pay union dues.

Where did this come from? The original NLRA (1935) allowed “closed shop” agreements where union membership was a condition of hiring: everyone belonged to the union if they worked in a unionized shop, and in some instances, you had to join the union to get hired. Taft-Hartley (1947) changed that, and set up alternative “union security agreements”: in other words, an “agency” or “fair share” fee. Under an “agency shop,” workers that decline to become full dues-paying members of their union must—as a condition of employment—pay a percentage of the membership fee to cover the cost of union representation. This eliminates the so-called “free rider” problem, where workers can derive all of the benefits of union membership—better wages, representation—without paying the cost of those benefits.

But Taft-Hartley provided an out: under Section 14(b) of the Taft-Hartley Act, states can pass laws prohibiting the “union security agreements” allowed under federal law. This is where “Right-to-Work” comes in. A majority of states have passed “Right-to-Work” laws since 1947, with the earliest push coming in the Jim Crow South (more on the racist origins of “Right-to-Work”).

The practical effect of “Right-to-Work”: limiting union growth (a key goal of wealthy segregationists scared of cross-racial working-class organization), starving unions of resources, and encouraging members to view union membership transactionally. Repealing Section 14(b) of Taft-Hartley would outlaw “Right-to-Work,” instantly changing the landscape of private sector unionization across the country.*

*Note: it would not impact the Supreme Court decision made in Janus v. AFSCME, and the public sector will continue to be “open shop” until the Supreme Court decision is overturned.

POINT FOUR: Under Bernie’s plan, companies will no longer be able to ruthlessly exploit workers by misclassifying them as independent contractors or deny them overtime by falsely calling them a “supervisor.”

One of the most pervasive means of avoiding unionization—used liberally by “gig economy” companies like Uber and Lyft—is miscategorizing workers as “independent contractors” working on a 1099, or classifying non-supervisory employees as “supervisors.” (Check out this CWA resource on “independent contractor” vs. “employee”). There’s a simple reason: avoiding payroll taxes, plus independent contractors and supervisors aren’t eligible for union rights under federal labor law (along with things like overtime, etc.)

By tightening regulations on worker misclassification, not only would unionization be easier—it’d make a wider range of workers eligible for protections under federal labor law.

POINT FIVE: Make sure that employers can no longer use franchisee or contractor arrangements to avoid responsibility and liability for workers by codifying the Browning-Ferris joint-employer standard into law.

Franchisee and contractor arrangements have been a crucial means of “union avoidance” by megacorporations such as McDonald’s and Wendy’s. By utilizing franchise arrangements or subcontracting out services (or subcontracting the subcontracting, as sometimes happens), the umbrella employer shields themselves from being party to bargaining with employees. Their argument is simple: we don’t actually employ them, we contract with someone that employs them (and can terminate that agreement if needed). The flipside, of course, is that even if employees of a franchise or contractor unionize, they’re handcuffed in what they can bargain—especially in franchise agreements that narrowly lay out the terms of the relationship between the franchisor and the franchisee.

This is particularly important in the fast food industry, where few (if any) companies are corporate owned (it’s also an issue with cell phone companies with the expansion of third-party non-union “licensed retailers,” was a major issue during the 2017 AT&T strike). In Browning-Ferris, the Obama-era NLRB expanded a “joint-employer” standard forcing parent corporations to be party to bargaining with franchised or contracted union employees. Unfortunately, that was promptly overturned by the NLRB’s current Trump majority.

By codifying the Browning-Ferris standard into law, franchised and subcontracted employees would be able to organize and bargain effectively with greater certainty than that provided by NLRB rulemaking.

POINT SIX: Give federal workers the right to strike.

This is seismic.

There has never been a major presidential candidate that has ever called for the right of federal sector workers to strike. Under present law, not only are federal sector strikes illegal, federal workers are subject to draconian penalties.

The most infamous example is the 1981 Professional Air Traffic Controllers Organization (PATCO) strike under Reagan. As a consequence of their illegal strike, the air traffic controllers were fired, PATCO was decertified as a union, and strikers were barred from all federal service employment (a ban lifted over a decade later by Clinton). It’s hard to find a more thorough and ruthless example of union busting, and it’s no stretch to imagine Trump—or any other Republican (and some Democratic) Presidents—doing the same or worse.

| Support or oppose strike | MR OnlineBecause of this—and other rules particular to federal sector unions, largely established through the Federal Service Labor-Management Relations Statute and Executive Orders—federal workers are handcuffed in what they can and can’t do, are subject to the whims of ever-changing Department and Agency directors, and lack leverage to effectively bargain and enforce contracts. Ultimately, they’re forced to rely on the cooperation of the boss, which can and does change from administration to administration. That vulnerability is on full display as the Trump administration fights to kill federal sector unions: which have little recourse other than through the court system.

The potential power for workers is clear, too. Although it wasn’t a coordinated strike, Transportation Security Administration (TSA) screeners helped end the 2018-2019 government shutdown through industrial action like mass “sickouts,” leading to the closure of major airports like LaGuardia.

A Data for Progress/YouGov Blue survey shows that this could have a lot of support as well. Majorities of Democrats and Independents support the right for public school teachers to strike. Although this is different from federal employees, it seems likely that the results would be similar.

POINT SEVEN: Make sure every public sector union in America has the freedom to negotiate.

Public sector unions are one of the strongholds of the American labor movement. Unfortunately, union rights—like public sector bargaining—aren’t a given. Let’s take K-12 and higher education employees (both “professional” employees and support staff) as an example.

Six states—all in the South—prohibit K-12 teachers (and other public sector employees) from bargaining. Tennessee allows limited “bargaining” for K-12 teachers (for more on that, see Chris Brooks), but prohibits support staff bargaining. Even more states have restrictions on the scope and nature of bargaining. Draconian laws passed in Wisconsin, Iowa, and Missouri (most infamously Scott Walker’s 2011 “Act 10” law, which triggered mass protests) limit what unions can bargain over, and mandate onerous regular recertification elections for unions to continue to exercise the right to bargain.

If we want to get even more into the weeds, even progressive states with powerful unions—like Hawai’i, the most heavily unionized state in the country—have carve-outs exempting some employees, like graduate assistants, from union rights. The reason for this patchwork: public sector bargaining law is handled on a state-by-state basis, and many states (especially in the South) have acted to restrict or ban public sector unionization. Not coincidentally, teachers in states with strong bargaining laws boast higher average pay.

Federal legislation, supported by Sanders, aims to change that. The “Public Service Freedom to Negotiate Act,” introduced by Rep. Matt Cartwright (D-Pennsylvania) and Senator Maize Hirono (D-Hawai’i), sets a federal floor for bargaining rights for public sector workers. By doing so, it ensures that there is a minimum standard for union rights afforded to all public sector workers: something that would enormously benefit public sector workers in the Southern United States, most of whom lack the right to collectively bargain.

According to Sanders, signing the “Public Service Freedom to Negotiate Act” is a key part of his plan to overhaul union rights, and its passage would represent a massive expansion of union power in a sector that boasts higher-than-average rates of unionization.

POINT EIGHT: Require companies that merge to honor existing union contracts.

As Strikewave reported in March, when General Electric sold their Transportation division to Wabtec, the new company demanded substantial wage cuts, two-tiered wages and benefits, and other contractual changes from United Electrical Workers’ (UE) Locals 506 and 618. Luckily, workers at the Erie plant were able to fight off most of Wabtec’s demands.

What triggered the struggle: spinning off the Transportation division opened up the contracts reached between General Electric and Locals 506 and 618. When corporations spin off unionized subsidiaries and divisions, it opens the door for new management to fight to drive down wages and extract concessions from their workforce under the guise of increasing “competitiveness.” Under the Sanders plan, federal legislation would require new management to honor existing collective bargaining agreements for the lifetime of the agreement.

POINT NINE: Deny federal contracts to employers that pay poverty wages, outsource jobs overseas, engage in union busting, deny good benefits and pay CEOs outrageous compensation packages.

Corporations, educational institutions, nonprofits, and other entities across the United States are the recipients of federal contracts and grants: some of them highly lucrative. Many of those same corporations—Boeing, for example—engage in rampant union busting while making billions off of federal contracts. In addition, many publicly subsidized colleges and universities that rely on federal grant funds turn around and utilize public money to pay exorbitant amounts to union busting law firms.

Under the Sanders plan, federal contracts could be revoked or denied to low-wage employers, union busters, and companies that engage in offshoring (read: most American companies). Making federal funds contingent on “good behavior” is a powerful means of leverage.

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