OPINION: Labor law makes it too hard to start unions. Workers deserve a bigger voice



Every year, I teach a class on Labor and workplace policy for graduate students at Columbia University. And every year, I begin class by asking students what comes to mind when they think about the Labor Movement.

When I first started teaching, students mainly described unions as organizations that were once important, but probably out of date in the current economy. “Good for people who made cars,” quipped one student.

This year the answers could not have been more different.

Thanks to a massive wave of strikes and new efforts to unionize across tech companies and media outlets, my students saw unions in a different light. They were now interested in what unions could offer them in terms of better wages and benefits and voice on the job — and indeed, many were involved in the newly formed graduate student union at Columbia University fighting for improved health care benefits and more transparent employment policies.

This new interest is shared by much of the American workforce. The percentage of non-union members expressing interest in joining a union shot up from around a third of workers in the 1970s and 1990s to nearly half of all workers in 2017, according to polling conducted by researchers at MIT.

Yet the discouraging reality is that current Labor law makes it all but impossible for these workers to form or join unions at their jobs. And even in the rare cases where workers do manage to start unions, these organizations are sharply limited in the representation that they can provide to workers.

Start with the fact that only about one in 10 non-union workers say they would know how to form a union if they wanted to, according to polling I have conducted together with researchers at MIT.

That’s understandable because the process is long, complicated and risky for rank-and-file workers. Workers often endure threats, mandatory anti-union meetings, surveillance and even physical intimidation from their employers in the protracted process necessary to hold an election for union representation.

Although employers are legally barred from disciplining or firing workers involved in the union organizing process, many employers do so anyway because the penalties are so low. An employer that illegally fires a union organizer is liable only for paying the worker’s back pay — minus any income the worker has earned in the meantime.

One recent report estimated that employers are charged with violating federal law in over 40 percent of union elections. And if workers manage to win union elections against these long odds, they still have to reach a first contract. Many employers drag the process on for years until workers lose steam.

Other workers, moreover, simply lack union rights altogether: agricultural workers, domestic and caretaking workers, independent contractors, anyone with any supervisory duties and public sector workers in many states cannot collectively bargain with their employers.

On top of these barriers to forming a union is the fact that current Labor law makes it difficult, if not outright impossible, for unions to provide the services that workers say are most important, like having a voice when it comes to management decisions or health and retirement coverage they can take with them between jobs.

Together with researchers at MIT’s Sloan School of Management, I have been conducting nationally representative surveys of American workers to understand the forms of Labor representation that workers would most value.

Our research found that workers highly valued traditional collective bargaining, as well as sectoral or regional bargaining that would allow Labor organizations to set standards across an industry or state.

Workers also prized Labor organizations that could offer extra unemployment benefits, health insurance, retirement coverage, job training and skills development. And workers liked the idea of giving Labor organizations more input into how they do their day-to-day jobs as well as weighing in on decisions made at the firm-wide level about business operations.

In all these cases, current federal Labor rules make it all but impossible for unions to offer these services on a widespread basis. (Unions, for instance, can bargain with multiple employers — but only if all those employers voluntarily agree to do so.)

The upshot is that even where they exist now, unions are handicapped by outdated laws built for a post-war economy. Although workers want and need unions that can operate across different sectors, American Labor law is built around unions that organize and bargain at a single plant, factory or store.

Given these obstacles, expanding worker voice will require more than tinkering around the edges of existing law. Instead, we need to start from scratch.

The good news is that there is a growing consensus around the need for such an approach.

For the first time in recent political history, the major Democratic presidential candidates have all included ambitious proposals for Labor law reform as part of their platforms. Meanwhile, the House is considering the (Protecting the Right to Organize) PRO Act — endorsed by nearly all Democrats — which would substantially boost workers’ ability to form and join effective unions.

Unions are thinking bigger, too: Both the American Federation of Labor and Service Employees International Union have announced proposals for broadening the scope of Labor cooperation and bargaining at the sector-wide level. And the Clean Slate for Worker Power initiative at Harvard Law School recently released a sweeping set of proposals aimed at empowering workers — both by expanding traditional unions but also by creating other alternative mechanisms for worker voice.

Establishing a new system of laws governing the workplace is not going to be easy, nor would the proposals described above solve all the problems of economic and political inequality facing the United States. These kinds of ambitious Labor reforms would go far in giving workers the voice and representation they say they want at work.

As one of my students expressed at the end of last semester, while they might not always be perfect, unions are still the best shot that workers have of securing dignity and rights on the job.

(Alexander Hertel-Fernandez is an assistant professor of international and public affairs at Columbia University, where he studies the politics of business, Labor, and American political economy. He is the author most recently of “State Capture: How Big Conservative Activists, Big Businesses, and Wealthy Donors Reshaped the American States—and the Nation” and is a fellow at the Roosevelt Institute. Reprinted from CNN Business Perspectives.)


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