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Realistic ways policymakers could strengthen collective bargaining

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When it comes to electoral politics, conservatives complain about the role played by “big labor” on behalf of progressive candidates and issues. With union coverage at a historically low 11 percent of the workforce (7 percent, private sector; 36 percent, public sector) and wealth concentration, corporate profitability, and the influence of money in politics and policy at all-time highs, I’d suggest “big capital” is a more potent force. Still, there’s no question that the union movement remains the single largest American institution that campaigns and lobbies on behalf of working families, and that puts it in the cross-hairs of powerful elites.

However, while progressives typically tack “more unions” onto our lists of policy goals, my concern is that this is largely pro-forma, and that many think that with the loss of our industrial base and the rise of both service employment and the “gig” (i.e., freelance) economy, calling for more collective bargaining is more nostalgia than plausible policy.

To which I say: not so fast. Diminished bargaining power is at the heart of my diagnosis as to why the U.S. economy so often delivers growth without broadly shared prosperity. While increased collective bargaining is by no means the sole prescription implied by that diagnosis—full employment is a critical bargaining-power booster for the less advantaged – it’s got to be part of the solution.

[Why unions’ huge minimum wage win may not bring in new members]

Turning around the low coverage share is unquestionably a daunting challenge, and while it’s a fine long-term goal, getting there requires several intermediate steps along the way. Here is a list of some of those steps. I’d argue that they’re within reach, if we’re willing to fight for them.

Block states from adopting so-called “right to work” laws: As I wrote here a few months ago, these state-level laws “make it illegal for unions to negotiate contracts where everyone covered by that contract has to contribute to its negotiation and enforcement.” I also stressed what a misnomer “right to work” is. There are no new rights or privileges enjoyed by workers when states adopt RTW. To the contrary, these laws remove an existing right: the right of workers to require those who benefit from union contracts to pay for their negotiation and enforcement.

As per the power imbalances noted above, journalist Brad Plumer conducted a careful, no-thumb-on-the-scale review of a pretty vast literature on the impact of RTW and concluded that its impact is to “weaken labor unions. The laws appear to tilt the balance of power so that workers reap fewer of the gains from growth.”

Most of the support for RTW is driven by misinformation campaigns from labor’s enemies. If voters received better information from labor’s allies about the stakes here, these laws might cease to be the juggernaut they’ve been of late.

Protect and strengthen the National Labor Relations Board: The NLRB is “an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions.” It is especially important given common tactics from anti-union employers, who often delay elections for months or years and deliver “captive audience speeches” that disparage organized labor.

New NLRB rules, which took effect in April of this year, are designed to curb such tactics by shortening the time by which union elections must take place, and the new rules are already helping to shorten elections.

Yet congressional conservatives are busy trying to defund and block these rules. While President Obama has already vetoed one such attempt, Section 407 of the Labor HHS bill that just came out in the House sneaks in another attack.  The Labor HHS bill also includes an attempt to undermine a recent NLRB decision that McDonald’s should be held liable for labor violations at its franchise restaurants (Section 408).  These riders must be stopped; giving the NLRB the political oxygen to do its job is an important and often unheralded way to ensure that existing rights are enforced.

There’s another important action the NLRB could take: prevent employers from permanently replacing workers who exercise their right to strike when such drastic action is not needed to continue operations. Not only is it legal for employers to refuse to rehire union members who’ve been replaced during a strike; employers have no obligation to document why it was necessary to do so. In fact, case law dictates that the NLRB has a “responsibility…to strike the proper balance between the [employer’s] asserted business justifications [for actions during an economic strike] and the invasion of employees’ rights in light of the Act and its policy.”

As long as employers can replace strikers without justifying such actions, that balance is nowhere near to being met now.

Correctly classify workers: Speaking of the “gig” economy, worker misclassification—wherein employers label their regular employees as independent contractors—is a growing problem that is only going to get worse if we don’t stop it. Misclassified workers are more likely to be underpaid and are not protected by labor laws like minimum wages or overtime. Since self-employed workers often fail to submit payroll and income taxes, misclassification also costs the Treasury a few billion dollars a year in unpaid taxes.

The U.S. Labor Department has filed various lawsuits against misclassifiers under the Fair Labor Standards Act (FLSA), and the Payroll Fraud Prevention Act was introduced in the last Congress by Sen. Bob Casey (D-PA) and Rep. Joe Courtney (D-CT). It would require businesses to notify workers of their status as employees or non-employees and doubles the penalties for noncompliance with FLSA. As with the labor law violations noted above, it could just take a few expensive prosecutions and penalties to change the culture that increasingly supports misclassifying as a viable way to cut labor costs and rip off workers.

Obviously, the more these ideas have to go through Congress, the less likely anything will become of them. That’s why supporting the NLRB is key, as is a state-based strategy against right-to-work (for less), and a court-based strategy on misclassification.

Granted, that’s a more complicated agenda than “more unions.” But if we pursue it, it is likely to yield precisely that result.