Necessary Reforms

Andrias and Rogers see pro-worker labor-law reform as falling into four fundamental categories. The law should be reimagined and reshaped “(1) to protect all workers, in all segments of the economy; (2) to make it far easier for workers to obtain workplace representation; (3) to provide for sectoral-level bargaining; and (4) to better protect workers’ rights to strike, picket, and engage in other concerted action.”

The report walks through each of these reform areas, assessing the extent of the problem and suggesting specific policy correctives. In section one — “Labor law should provide rights to all workers, in all economic sectors” — Andrias and Rogers observe that labor protections simply don’t apply to vast sections of the American workforce. These include many domestic and agricultural workers, independent contractors, employees of subcontractors, franchisees and temp agencies, low-level supervisors, graduate-student teachers, workers in religious institutions, and more.

The result is that many millions of people who work for a living simply aren’t protected under the National Labor Relations Act (NLRA) and additional state laws.

New legislation is needed to fix this problem. The law should grant domestic and agricultural workers the same rights as other workers. It should require that all firms “owe duties to workers over whom they hold economic power,” including independent contractors, and broaden the test for “joint employment” so that subcontractor employees are protected.

It should affirm that graduate-student teachers and employees of religious institutions, along with low-level supervisors with limited management responsibilities, are workers. And, they write, the law must extend the right to strike to public sector workers wherever it has been withdrawn — which is exactly what Nixon’s Taylor Law amendment aims to do.

The report’s authors note that while the majority of Americans say they would like to belong to a union, only a small and shrinking percentage actually do. One of the primary reasons is that it’s unnecessarily difficult to organize a union. In particular, even when workers are protected by the NLRA, the elections process overseen by the National Labor Relations Board (NLRB) is overly complicated and time-consuming, and easy for employers to manipulate.

The process of forming a union can take years, during which time employees are not allowed to convene union-organizing meetings at work, but employers are allowed to convene mandatory meetings where unionization is discouraged. Employers aren’t technically permitted to threaten workers with retaliatory layoffs (though it happens anyway), but they can openly “predict” that unionization will force the company to cut salaries, outsource, move locations, or shutter entirely — demoralizing and scaring workers out of forming a union.

New laws must be introduced that make it easier for workers to unionize, write Andrias and Rogers. For example, the NLRB should grant union organizers access to the physical worksite, as well as contact information for workers early in the organizing process. Employers’ ability to force workers to attend anti-union meetings should be legally curtailed.

Additionally, the process should be streamlined so that workers who want to unionize don’t have to wait for years. One way to do this, as Bernie Sanders recently proposed in his Workplace Democracy Act legislation, is automatic card check, which means that if a majority of workers signal that they want a union by submitting authorization cards up front then the union is automatically recognized, no lengthy campaign necessary. Sanders’s legislation also contained another of Andrias and Rogers’ recommendations: the NLRB’s remedial powers should be expanded, allowing it to impose higher fines and fees on employers who break the retaliation and intimidation laws that already exist.

The report’s section three — “Labor law should encourage sectoral-level bargaining” — is an appeal to amend the NLRA to legalize a new model of organizing altogether. Instead of organizing on a shop-by-shop basis, the idea behind sectoral bargaining is that workers could instead organize by entire sector, such as all fast-food workers or all custodial workers in a given geographical area (state- or nationwide). This has been done informally in the United States in the past, and is done formally in some European countries today.

Plant- or enterprise-level bargaining keeps unions’ scope limited. Setting legally enforceable standards across an entire industry helps prevent firms within the industry from competing with each other along the axis of labor costs, which results in a race to the bottom that only hurts workers. Sectoral bargaining would also incorporate more workers into the collective bargaining process, and promote solidarity among workers beyond the shop floor.

Andrias and Rogers recommend that lawmakers explore either establishing a new sectoral bargaining system that could be layered on top of existing firm- and enterprise-level organizing or achieve sectoral bargaining in practice by expanding the scope of current worksite organizing through large-scale reforms. They lay out areas of consideration and creative proposals for each path.

In section four — “Labor law should protect workers’ fundamental rights to strike, picket, and engage in other concerted action” — Andrias and Rogers argue that workers’ rights to collective action and free expression are cornerstones of workplace democracy, and yet they are weakly enshrined in US labor law. Between the New Deal and the Taft-Hartley Act was a brief window during which the law genuinely protected workers’ rights to picket, protest, and strike, but those rights have since been severely eroded in the decades since.

At present, for example, while employers can’t retaliate against striking workers, they can hire permanent replacements, which means that for many workers striking means risking their job. Workers might opt instead for less dramatic slowdowns, sit-downs and other nontraditional forms of collective action that don’t require total work stoppage and nonattendance, but those are not covered under the NLRA. Labor law also circumscribes when and how workers can picket, arguably in contradiction to the First Amendment, and restricts “secondary boycotts,” where workers put pressure on a company they don’t work directly for — so, for example, workers at a franchise are often restricted from picketing corporate headquarters.

To fix this problem, Andrias and Rogers recommend that legislators prohibit employers from hiring permanent replacements during a strike, repeal the restrictions on secondary boycotts, and expand protections for all kinds of worker protest, from traditional strikes to slowdowns to pickets.

A Democratic-Socialist Labor Platform

Cynthia Nixon is among a new wave of candidates who are calling themselves democratic socialists. Some have better labor platforms than others; Nixon’s is one of the best so far. But all of them have better labor platforms than the average Democrat, who at best pay lip service to unions and often neglect to mention labor at all.

The vast majority of American adults work for a living, and spend most of their waking hours on the clock. Given the centrality of work to life under capitalism, you might expect that workplace issues would be front and center in American politics, but instead there is a void.

Both Democrats and Republicans are strongly tied to business, leaving working-class people effectively without representation in American two-party politics on issues that pertain to work itself. The result is that, while class conflict is perpetual, it lacks electoral expression. For their part, union officials have cemented mutually beneficial relationships with the Democratic Party establishment, largely in exchange for not rocking the boat.

Socialist organizations and the candidates in their orbit should endeavor to fill that void for two reasons. First, reforms of the type suggested by Andrias and Rogers are both necessary and feasible, lacking only the political power and will to muscle them through.

If every reform in their report were realized, the working class would be dramatically empowered. Of course, it wouldn’t be automatic — unions would still need to focus on internal democracy, face-to-face organizing and rank-and-file engagement in order to take advantage of the opportunity. But if the legal obstacles to workplace organizing were cleared and unions rose to the occasion, we would no doubt see a revival of the labor movement and of class struggle generally.

Second, even just talking about these reforms has enormous agitational potential, as Nixon’s case illustrates. There is nothing inevitable about political discourse. From abortion to the federal deficit to climate change, political issues become flash points because political actors make them so. One of the best ways to do this is to pick fights. Picking fights — by demanding or proposing new legislation, for example — allows politicians and movements to draw clear battle lines around an issue, connect it to constituents’ lived experience, invite people to feel a sense of cultural ownership over the debate, and so on.

One of the reasons labor is not a lightning-rod issue in American politics is that politicians from both major parties have reached a consensus not to emphasize it, and union leaders themselves have often gone with the flow. But as the recent teachers’ strike wave showed, labor issues are always roiling just beneath the surface — especially as austerity, privatization, outsourcing, rising living costs, stunted wages, and eroding benefits push workers to the brink.

We can’t just elect and legislate our way into a revitalized labor movement. Working people will have to organize from the bottom up. But electoral politics has an important role to play in bringing a message of workers’ rights, a just economy, and class struggle to mass numbers of people. Politicians don’t just govern; they can also act as catalysts, creating new political opportunities by using their campaigns and offices as bully pulpits for class politics.

Socialists should see it as our political responsibility to force the labor issue. Our organizations should compel candidates in our orbit to adopt robust pro-worker labor-law reform agendas, and candidates and activists alike should use those proposed reforms as an opportunity to talk openly about class conflict and material inequality — and to pick fights with business elites and their allies in government. Andrias and Rogers’ comprehensive list of proposed changes to American labor law is a great place to start.