According to many scholars, that’s one of the major reasons behind the steady decline in union density that characterized the second half of the last century. There have been many attempts to tilt the law back in the favor of workers, to no avail.
Today, however, liberal legislators are trying to make the law a tool for collective action again — putting the issue squarely in the 2016 presidential conversation, at a time when Republican candidate Scott Walker has been campaigning on a plan to roll back many of the remaining protections unions enjoy.
“Too many employers use aggressive intimidation campaigns to keep workers from having a voice in the workplace,” wrote Senator Patty Murray (D-Wash.) and Rep. Bobby Scott (D-Va.) in a sign-on letter to colleagues. "The system is broken, and needs to be fixed."
The biggest problem, unions say, is the low penalties employers face for intimidating or retaliating against workers who try to organize. Companies can effectively kibosh a union drive by firing its leaders, knowing that it might take months for the National Labor Relations Board to do anything about it. If the board does side with the workers, employers usually only have to pay back wages — and undocumented workers don’t have to be given their jobs back at all.
The Workplace Action for a Growing Economy (WAGE) Act, which Democrats introduced Wednesday, adds hefty monetary penalties for violations of workers’ rights to collectively organize, whether to join a union or simply to improve conditions in the workplace. It also provides for injunctions to force employers to quickly re-hire workers if they were fired unjustly, undocumented or not. And it allows workers to sue in federal court for damages and attorneys fees, which they’re able to do under other labor and civil rights statutes, but not the NLRA.
That’s a departure from the labor movement’s most recent effort, back in 2009, when it narrowly failed to pass the Employee Free Choice Act — or “card check,” which would have allowed workers to join when a majority sign cards in favor of doing so. The WAGE Act is a broader approach.
“There’s a sense that this is about workers, not about unions,” says Harvard Law professor Benjamin Sachs of the new proposal. "EFCA, that’s a union bill. If you think about the Fight for $15 [an hour], this would apply to those workers.” That’s important, he says, because it could draw a larger base of support.
“When unions succeed politically is when they push for things that are for all workers,” Sachs says, "and do poorly when they push for things that are just for unions.”
Lately, progressives have been pushing a lot of workplace-related ideas that would improve conditions for all workers, such as bills that require paid leave and set a higher minimum wage. But those don’t help workers gain bargaining power, which allows them to negotiate with their employers what benefits work best for each.
The AFL-CIO says it's brought in the typical cast of supporters that has been advocating for those minimum standards to fight for this bill as well: Women's groups, civil rights advocates, and immigrants rights organizations that see worker bargaining power as a important way to benefit their own constituencies. And a White House summit on worker voice, scheduled for October 7, will serve as a high-profile showcase.
Now, progressives aren’t the only ones aiming to tinker with labor law. Last week, House and Senate Republicans introduced a bill that would roll back the National Labor Relations Board’s decision in August to make it easier for workers at temporary staffing agencies, subcontractors, and franchisees to bargain with their employers’ employer.
But just because conservatives want to open up the National Labor Relations Act as well doesn’t mean they’ll be able to find a bipartisan way forward.
“While employers have a wish list of NLRA reforms, they don’t have much incentive to compromise, because fundamentally the law works well for them now,” says Seattle University Law professor Charlotte Garden. She doesn’t give the WAGE Act good odds of passage, at least until Democrats have a supermajority in both houses of Congress.
“It may be that there is a bit more momentum now for labor law reform, given successes unions have had on the state and local level, and increasing public support for labor’s priorities,” Garden says. Nevertheless: "I can’t say I’m hugely optimistic.”
Indeed, employers seem so far unconcerned about the Democrats' new push. "We do not plan to say anything about this bill," said Chamber of Commerce spokeswoman Blair Latoff-Holmes. "If it is taken up by a committee or sees some form of consideration we will have a comment then."
Unions and labor-friendly academics have lots of other items on their labor law reform wish lists, too. The fact that the National Labor Relations Act pre-empts most local laws has also prevented states and cities from going beyond its provisions, as they are able to do with the laws governing minimum wages and other benefit mandates. Also, entire chunks of the economy — the public sector, agriculture, and domestic work — don’t fall under the NLRA at all.
The AFL-CIO, which helped draft the WAGE Act, has said that it will offer further proposals to fix more of those problems in the future. For now, this bill may be enough of an improbable challenge.