Bernie Sanders’ Labor Plan Could Put a Union in Every Workplace in America
Bernie Sanders released his Workplace Democracy Plan on Wednesday. His campaign’s labor platform makes the strongest case of any of the candidates so farthat he would be unions’ best ally in the White House in generations.
At a time when the Democrats’ official labor law reform proposal, the Protecting the Right to Organize (PRO) Act, would essentially overturn the anti-union Taft-Hartley Act, the race to the left for labor’s support in the primaries demands bolder policies. Bernie Sanders does not disappoint.
The stand-out measures
Where Sanders’ labor platform is most exciting is its proposal for new workers’ rights and forms of union representation that transcend the National Labor Relations Board framework of enterprise-based contract bargaining.
One is a “just cause” legal standard of employment, which would mean that non-managerial workers—whether they are represented by a union or not—could only be fired only for a legitimate, serious, work-performance reason. This has been a causethat In These Times has long championed, and as Moshe Marvit and I explained elsewhere, “would open up new pathways to organizing.” Bernie Sanders is the third candidate (so far) to embrace the reform, but he’s the first leading contender for the nomination to do so.
But the best proposal in Sanders’ platform is what he refers to as “sectoral collective bargaining” but others in the academic and think tank world have been calling “wage boards.” Basically, he proposes to work with trade unions to construct new industrial standards boards—with representatives for the employers, workers and possibly that nebulous concept, “the public”—that can set minimum standards for wages, benefits and hours across entire sectors of the economy thereby taking those issues out of competition. This is essentially the framework of the First New Deal legislation, which the Lochner-era Court overturned, and which the National Labor Relations Act was initially meant to operate alongside of.
Sanders’ wage board proposal was clearly influenced by the Center for American Progress’ David Madland’s and University of Michigan’s Kate Andrias’ dogged research and advocacy for reviving the wage board model. It’s also not insignificant that a revived wage board is how Service Employees International Union (SEIU) local 32BJ won a $15 minimum wage for fast food workers in New York state, and that SEIU is rather bullish on expanding and exporting the model.
This is possibly the most important labor law reform that a Democratic president (with a Democratic Senate willing to nuke the filibuster) could achieve. It’s that one that could put a union in every workplace in America on day one. Because if unions had the legal reach to improve wages and working conditions across an entire industry, workers would join and support the unions that were fighting for them—particularly if we made it easy for them to make voluntary paycheck contributions—even before they win a collective bargaining election at their specific workplace.
The man with the plan
Sanders also offers a laundry list of good and overdue reforms. His proposed amendments to the outdated and ineffective National Labor Relations Act—like most of the candidates’ plans—improve upon the PRO Act in several ways. It adds card check recognition and the right to a first contract for new unions, which were provisions of the failed Employee Free Choice Act (EFCA) that did not get carried over into the current Democratic bill.
Sanders also proposes to fully restore workers’ right to strike and to engage in solidarity activism. In the case of the latter, that means wiping out more provisions of the 1947 Taft-Hartley Act; in the former, it means overturning an obscure 1938 Supreme Court decision, NLRB v. Mackay Radio & Telegraph Co., that allows employers to permanently replace workers who go on strike over economic demands. Employers increasingly took advantage of this decision during the Reagan administration.
Banning permanent replacements was the labor movement’s top legislative priority in the first year of Bill Clinton’s presidency. The Cesar Chavez Workplace Fairness Act of 1993 was the EFCA of its era, and similarly died of a filibuster in the Senate. Now it is increasingly becoming a consensus position among Democratic candidates.
There are also some policies and procedures of the NLRB that Sanders would change. These may be done through legislative change, or Sanders may be considering executive orders and strict directions to his future Board appointees. One is to protect existing collective bargaining agreements when a unionized employer is merged into a new company. Current NLRB rules on successorship allow an employer to tear up the contract and then bargain a union to impasse over concessions. Sanders used his campaign infrastructure to support workers represented by the United Electrical, Radio & Machine Workers of America at a locomotive plant in Pennsylvania this past February.
Sanders also wants to ban “management’s most important weapon” in anti-union campaigns, mandatory captive audience meetings. The courts have ruled that employers have a First Amendment right to express their anti-union views, and employers use the power of the paycheck to force employees to listen to them. Bernie Sanders says that workers should have the right to walk out on a presentation.
One very attention-grabbing plan responds directly to Joe Biden’s bad-faith arguments that a Medicare-for-All system would be unfair to unions who have historically traded higher wages for employer-sponsored health insurance. Sanders’ NLRB would support unions reopening their collective bargaining agreements in order to recoup as much of an employers’ cost savings from taxpayer-funded health care as possible as new wage gains. His platform implies that a unionized employer that does not share financial data and agree to sharing its cost savings would be charged with committing an unfair labor practice.
Finally, like many of the candidates in the crowded Democratic field, Sanders proposes to fix an original sin of the NLRA—its racist exclusion of domestic and farm workers from the protections of the Act.
Sanders also prioritizes legislation that would accelerate and codify badly needed regulatory reforms that got bogged down by right-wing judicial activism and corporate opposition during Obama’s second term. These include the Browning-Ferris joint-employer standard, which curtail corporations’ ability to hide behind franchise relationships to avoid bargaining over working conditions that they dictate in reality. He also calls for an expanded “persuader rule,” which would force employers to disclose the names of their hired gun union-busters and give union organizers equal access to workers during an organizing campaign. A proposal to end the practice of misclassifying workers as “supervisors” and “independent contractors” in order to avoid paying benefits and overtime is lacking somewhat in detail, but let’s just assume that Bernie co-signs whatever Elizabeth Warren proposes.
In the public sector, Sanders’ platform also calls for expanding the union rights of federal workers—including the right to strike and to bargain over wages. Ronald Reagan’s infamous termination of striking air traffic controllers in 1981 was a signal event in corporate America’s assault on unions. Ironically, that strike was sparked by the federal government’s refusal to bargain over wages. The right to bargain and strike—long denied to federal labor unions—would likely make strikes over routine collective bargaining matters less likely. But they would, as Sanders was quick to point out, empower federal workers to use their labor power to put an end to routine government shutdowns.
He also pledges to sign the Public Service Freedom to Negotiate Act, which was introduced by Representative Matt Cartwright (D-Pa.) and Senator Maize Hirono (D–Hawaii) in June and which would extend union rights to all state and local government employees as well.
Never waste a crisis
The turf of U.S. politics shifts beneath our feet like quicksand. This is a moment of great possibilities and existential threats. One of our biggest challenges as a labor movement is that too many of us—leaders, rank-and-filers and leftist critics alike—view things as static, as stuck in a moment in time, whether that be 2009, 1993 or 1978; That real change won’t happen without a crisis.
But we are already in a crisis.
The crisis right now is the threat of fascism, domestic terrorism and ethnic nationalism. These are all problems that have been made possible by the systemic corporate attack on union rights and a yawning gulf of economic inequality. Centrist politicians and shapers of public opinion who have hardly been friends to the working class are slowly waking up to the role that unions play in political education and voter turnout.
So even if Bernie doesn’t win the nomination—if it’s Elizabeth Warren or Kirsten Gillibrand or even Kamala Harris—we still probably have a candidate and a growing portion of the Democratic establishment who recognize that they have to deliver real wins for working families if they don’t want to get turned out of office all over again in 2022 by a racist and demagogic death cult.
As a labor movement, now is the time to demand more. Much more. Let’s take the issue of “just cause,” which is a basic human right enjoyed in much of the world and the lack of it is one of the foundational problems that keeps most workers from pushing back on employers’ unreasonable commands.
Elizabeth Warren hasn’t even put out her full labor platform yet. I fully expect it to be full of robust proposals to restore the legal rights and power of workers with some delightfully wonky detail. If she joins Sanders in endorsing just cause, the issue—which wasn’t on any union’s agenda—could be on the fast track to the Democratic party’s 2020 platform (as long as the candidate isn’t someone who promises that “nothing would fundamentally change”).
Good ideas that are put on any primary candidate’s agenda should remain on labor’sagenda in the years to come. When it comes to ideas for restoring the legal powers of workers, our approach should be “yes, and!” SEIU President Mary Kay Henry has the right approach for these times. The union released its own list of labor law demandson the same day as Sanders, and challenged every candidate to release a detailed labor plan “explaining how they will make it possible for all working people to join unions.” The political moment, says Henry, “is no time for minor tweaks to our broken system.”
Let the primary of ideas continue!
[This article originally appeared at In These Times.]
On Labor, a Tale of Two Cities’ Mayors (with Presidential Ambitions)
It was a tale of two cities’ mayors (with presidential ambitions) this week. South Bend, Indiana’s Pete Buttigieg and New York’s Bill de Blasio—the two active-duty mayors among the 20 Democratic presidential candidates still on the debate stage—released their labor and workers’ rights platforms.
Both mayors include fairly robust proposals to overhaul and modernize our nation’s main labor law, the National Labor Relations Act.
But that should no longer be considered good enough. Given that Congressional Democrats’ official proposal right now, the Protecting the Right to Organize (PRO) Act, essentially overturns the anti-union Taft-Hartley Act, adds card check under some circumstances and imposes meaningful financial penalties for employers who violate their employees’ rights, woe to the candidate who doesn’t propose to outdo it. Only one mayor, de Blasio, breaks new ground with his proposal; the other, Buttigieg, offers a survey course of think tank white papers and moderate reforms.
I’m actually uncharacteristically optimistic that we may get the PRO Act—or something close to it—if the Democrats win big in 2020. However, we won’t end our country’s crisis of economic inequality and creeping fascism without a legal framework that puts workers’ rights and union power into every workplace on day one.
This may be hard for union leaders and activists who have been in the political wilderness for four decades to understand. Most of us have experienced begging for scraps like card check and banning permanent replacement scabs as the best we could expect Democrats to meekly fight for (and then fail to deliver). Now the stakes are higher, the essentiality of unions to working-class political education and voter turnout is obvious, and overturning Taft-Hartley is the consensus position of Democratic leadership across the political spectrum. Which means that putting the labor movement’s foremost political demand of the last 70 years in your platform is suddenly Not. Good. Enough.
Fine. This is Fine.
Buttigieg’s platform attempts soaring rhetoric with a preamble about “the verge of a new American era” calling for “a fundamentally new and different approach to fix our broken political and economic system.”
Good, fine so far. The solution, Buttigieg says, requires going “above and beyond existing legislative proposals like the ‘Protecting the Right to Organize (PRO) Act.’” But instead of doing that, Buttigieg’s labor platform goes sideways with extra footnotes.
He wants to plug holes in the law that allow employers to mischaracterize workers as independent contractors and fix the weak “joint employer” standard that allows large corporations like McDonalds to avoid bargaining with hundreds of thousands of their employees. He proposes to correct one of the original sins of the National Labor Relations Act by finally expanding its protections to farm and domestic workers (whose exclusion was a racist concession to Dixiecrats), and to improve upon the Act by imposing multi-million dollar penalties “that scale with company size” for violating workers’ organizing rights, giving unions a right to “equal time” on during election campaigns and creating a certification process for industry-wide bargaining.
He endorses the Paycheck Fairness Act and a host of other anti-harassment and gender discrimination bills that were already on the shelf, waiting for a government that will finally pass them.
He also has a pretty detailed proposal for paid sick and family leave. Actually, it’s virtually identical to Bill de Blasio’s proposal (which I’ll get to below), except that he must feel some supernatural neoliberal impulse to refer to it as “access” to those things. That’s a red flag for me. And if those of us who wave the red flag were to engage in a drinking game that called for doing shots every time a politician proposed “access” to a vitally important thing that should be a “right,” we’ll all be hammered for the duration of the primaries if we don’t die of alcohol poisoning first.
But, in general, Pete Buttigieg’s “New Rising Tide” labor platform is … fine. It’s clear that he got a lot of really good advice from a lot of the smartest people trying to tackle the problem of the legal restrictions on workers’ rights and the economic inequality that results from it. But it’s equally clear that he glommed on to the narrowest, most technical tweaks to a broken system and studiously avoided a more radical rethink of our labor relations system.
Buttigieg’s presence in the race as a media darling is slightly annoying. It’s as if the D.C. establishment convinced themselves of their own nonsense that the reason so many voters supported Bernie Sanders in the 2016 primaries was because he’s a white guy, and if only they could find a younger, charismatic white guy (with just a twist of diversity) that they can garner enough votes for the status quo ante.
It’s nice that he reads books (in self-taught Norwegian, no less!) and speaks “in lucid paragraphs.” But most of his actual contributions to the discourse–like every candidate who’s in the race to thwart popular demands to expand government services–wind up questioning the value of living in a society at all. Take his opposition to free college. “As a progressive,” he explained to an audience of undergraduates in Massachusetts, “I have a hard time getting my head around the idea of a majority who earn less because they didn’t go to college subsidizing a minority who earn more because they did.” There’s nothing remotely progressive about a “hOw d0 Y0u PaY fOR iT?” argument that could just as easily conclude, “Why have any public education at all?”
Bill de Blasio’s presence in the race is also annoying. He has no shortage of critics at home who point to our crises of mass transit, affordable housing and police accountability as campaigns the mayor should be running to the state capitol to fix. But he also has an impressive track record of delivering wins for New York’s working families and, we learned this week, an impressively bold workers’ rights agenda for the nation.
The right to have workplace rights
De Blasio begins his 21st Century Workers Bill of Rights with an issue that’s near and dear to a lot of us here at In These Times: The Right to Due Process at Work. Simply defined, due process at work, or “just cause,” is the principle that an employee can be fired only for a legitimate, serious, work-performance reason.
In last August’s special issue, “Rebuilding Labor After Janus,” Bill Fletcher proposed a labor movement for just cause laws as a way to “end the tyranny of the non-union workplace,” one that “actively disrupts the strategy of corporate America and its right-wing populist allies.”
And in a recent piece marking ten years of the magazine’s Working blog, Jessica Stites noted that I’ve been using this platform to wage a lonely crusade on this issue for four years now.
Fellow ITT contributor Moshe Marvit and I carried that crusade into an op-ed in the New York Times in December of 2017. We were building support for an amendment to the Fair Labor Standards Act that then-Rep. Keith Ellison was drafting. (If any presidential candidates who are currently serving in Congress want to see a copy of that bill, slide into my DM’s…)
Although Ellison’s move to the Minnesota Attorney General’s office has momentarily orphaned a federal bill for a “right to your job,” the crusade was revived by a New York City Council push for fast food workers that progressive city council member Brad Lander is doggedly shepherding to Mayor de Blasio’s desk. (The bill’s true champion was SEIU local 32BJ’s recently departed and dearly missed president, Hector Figueroa.)
To be sure, de Blasio happened to propose my hobbyhorse. But the reason I’ve been arguing for Right to Your Job law is that it is a reform on another scale. It would increase the bargaining power and legal rights of every worker in America. It has the potential to put union representation in every workplace and gives unions new and creative ways to organize.
The rest of de Blasio’s platform is similar to Buttigieg’s except for one key distinction: A number of proposals highlight concrete improvements that the city of New York has made in the lives of low wage workers during de Blasio’s two terms as mayor.
Like Buttigieg’s, De Blasio’s labor platform includes a right to paid time off, including paid sick days, paid family and medical leave and the right to at least two weeks of paid vacation per year. Buttigieg proposes something similar, but de Blasio actually implemented a paid sick leave law that entitles workers to up to 40 hours a year of sick time, paid through an insurance fund.
De Blasio also proposes a fair scheduling law—modeled on one that fast food and retail workers won in New York—and a $15 minimum wage and new protections for gig workers.
Labor wants more!
Unlike many on the left who are in the “Bernie or Bust” crowd, I don’t have a horse in this race—yet. We’re months away from the Iowa caucuses and I won’t even have a vote in New York’s April 2020 primary (I’m registered in the Working Families Party).
But I’m enjoying the race to the left on policy, and watching candidates like Buttigieg reveal the emptiness at the heart of business-friendly centrism.
No one can doubt Bernie Sanders’ labor bona fides. He has been on the front lines of workers’ struggles for half a century, and the way that he has used his 2020 campaign infrastructure to lift up specific organizing campaigns and strikes and to use his bully pulpit to pressure massive corporations like Amazon and Walmart to raise their workers’ pay should be a model for all the candidates. But he is a blunt force instrument, and his indifference to policy details is frustrating on issues as complicated as how to restore the legal rights and collective power of workers.
Elizabeth Warren’s whole stock in trade is that “she has a plan for that.” As a Senator, she bucked the “think tank industrial complex” by developing a team of experts on her staff who reached out far and wide to progressive thinkers for policy ideas. Her staff have been picking the brains of In These Times writers on policies to tip the scales in favor of workers for years. She would enter office with a slew of policies to empower unions and worker centers to carry out the Robin Hood role the economy needs.
Any other candidate who wants to appeal to voters on labor issues has to propose bold solutions to even be noticed, standing next to Bernie and Warren. Pete Buttigieg has fallen short of that mark. Bill de Blasio has introduced a bold new workers’ right that no candidate was talking about. He’s earned your $3 donation to keep him on the debate stage, if only to ask the question: Why should your boss be able to fire you for no reason at all?
[This piece originally appeared at In These Times.]
Rats have speech rights, too: Unions, protests and balloons
Outside a strip mall on Staten Island, a giant balloon rat lies deflated. I can’t imagine a less auspicious scene for the free-speech fight of the century. But it’s here the Trump administration has chosen to argue that free speech is for corporations — and not for workers. And it’s here that unions have an opportunity to reverse decades of anti-union legal dogma.
Last month, the National Labor Relations Board sought an unprecedented injunction against Laborers Local 79 in Staten Island to stop them from inflating a rat balloon. Previously, agency staffers leaked word that Peter Robb, Trump’s NLRB general counsel, “hates” the rat and was determined to exterminate it.
The NLRB is a federal agency tasked by statute to protect the rights of workers. But under Republican administrations, it does the opposite.
Now, by taking aim at the inflatable rodent, the NLRB invites a First Amendment challenge. Conservative jurists have spent centuries trying to keep unions as far from free speech rights as possible — unless it can be used as a weapon against unions. In last year’s Janus vs. AFSCME case, the conservative majority upended a 40-year-old precedent by inventing a free-speech right for public sector workers to refuse to pay union fees.
If Scabby the Rat winds up before the Supreme Court because unions claim that popping their balloon is a violation of their First Amendment rights (which it clearly is), the justices will be faced with squaring Janus with free speech in favor of forming a union.
Some history. Unions have long been subject to speech restrictions that would never be applied to a corporation. One reason is that our nation’s main labor law, the National Labor Relations Act, is constitutionally rooted in Congress’ authority to regulate interstate commerce and not in workers’ constitutional rights. Another reason is the anti-union Taft-Hartley Act, which outlawed solidarity.
Today, we think of the act’s “right to work” provisions as its biggest attack on labor. But the ban on strikes and boycotts against companies that do business with an employer in a labor dispute — on pain of multi-million dollar fines — has actually been the greater sap on union power and organizing prowess.
Essentially, Trump’s NLRB is using the act to argue in federal court that cartoonish vermin are a “signal” to engage in “illegal” boycotts, and inherently coercive. They’re leaning hard on outdated stereotypes about union thugs and broken kneecaps.
Even on Staten Island, which has one of the highest unionization rates in the country, no one is going on strike or refusing to shop at ShopRite because of a balloon. The rat doesn’t coerce; it merely makes a mockery out of a union-busting boss.
Before he joined the NLRB, Robb was a construction-industry lawyer. He’s probably spent countless billable hours listening to thin-skinned real estate developers like Donald Trump complain about rat balloons outside their windows.
The Southern District court, often a problem for Trump, rejected the NLRB’s request for a preliminary injunction on Monday. But the case will move forward. A government agency is making a value judgment about the form and content of unions’ speech that has nothing to do with coercion or its impact on commerce. The AFL-CIO must wage this free speech fight.
It’s an opportunity to challenge the entire premise of a legal regime that is directly responsible for the decimation of the labor movement.
Corporations have every legal tool at their disposal to resist workers’ unionization efforts and the economic power to subcontract and reclassify the last remaining union jobs. Taft-Hartley denies workers the right to even ask fellow workers across corporate lines to leverage their own economic power to help them gain or maintain their labor rights. When it passed in 1947, one in three workers belonged to a union. Today it’s less than one in 10, even though polls show that at least half of all workers want to join a union.
Workers either have free speech rights and equal protection under the law, or the courts are where democracy goes to die.
[This op-ed originally appeared in the New York Daily News.]