The Sanders "Workplace Democracy Plan" would transform labor law
by C.M. Lewis
This piece originally appeared in two parts (1, 2) for Data for Progress and is republished with permission with light editing.
Bernie Sanders isn’t coming to play.
In August, the Sanders campaign unveiled a wide-ranging plan to overhaul American labor law. If enacted it would be the most dramatic change to labor law since the 1947 passage of the anti-union Taft-Hartley Act, and would arguably match the changes from the National Labor Relations Act (NLRA, or “Wagner Act”) in scope and ambition.
But what does his plan actually mean for workers? Well, we’ve got you covered. Here’s part one of a breakdown of the eighteen points in the Workplace Democracy Plan. We’ll start with the first nine points of the plan, and explain it point-by-point.
POINT ONE: Provide unions the ability to organize through a majority sign up process, allowing the National Labor Relations Board (NLRB) to certify a union if it receives the consent of the majority of eligible workers.
In other words: card-check. Card-check means gaining legal representation for a union would be significantly easier. Under card-check a majority of eligible employees would sign union cards authorizing union representation, the NLRB would certify that the cards are valid and that it represents a majority, and the employer would be forced to recognize the union.
This isn’t a new concept. The “Employee Free Choice Act” (EFCA) was a major demand of organized labor during the first Obama administration, and the signature proposal under EFCA was card-check elections. A (small) number of states allow card-check elections for public sector employees, too.
Under current federal labor law, workers typically have to undergo a long, drawn out two-stage election. In that election, they have to
first demonstrate at least 30% of the proposed bargaining unit supports an election
then wait until a second election can be held
In between the two stages, employers know a campaign is underway and can utilize a full range of “union avoidance” (union busting) services to squash the effort. By mandating card-check workers would be free to organize together without the full range of boss coercion, intimidation, and threats union campaigns often face.
POINT TWO: Enact “first contract” provisions to ensure companies cannot prevent a union from forming by denying a first contract.
The “first contract” provisions would match the proposal contained in the “Workplace Democracy Act”: either party (the newly recognized union or the company) can request compulsory mediation if they fail to achieve an agreement within 90 days. If they fail to reach an agreement within a further 30 days of compulsory mediation, either party can submit the remaining issues to binding third-party arbitration.
EFCA also called for similar “first contract” provisions. Compulsory mediation would bring in Federal Mediation & Conciliation Services (FMCS) to work with the parties to reach an agreement. Any items not agreed upon by the parties would go through binding third-party arbitration. In binding third-party arbitration, an arbitrator would hear the open issues as presented by both parties, and craft a settlement both parties would be obligated to accept.
Although involving FMCS isn’t necessarily an ideal scenario—the government’s role isn’t to get a pro-worker contract, it’s to avoid industrial conflict—it would provide a clear incentive for both parties to bargain in good faith, and would ensure that newly organized bargaining units would get a first contract in a timely manner.
The reason this is important is simple: under current labor law, the war doesn’t end with winning a union election. Employers are well-versed in a range of tactics to delay bargaining a first contract, ranging from challenging the outcome of the election itself to protracted bargaining “in bad faith” (in other words, bargaining without the intent of reaching an agreement). In fact, research from the Economic Policy Institute—originally published in 2009 during the first EFCA debates—demonstrates that nearly a third of new unions fail to achieve a first contract within three years of winning their election.
The end result? Unions end up decertified without ever achieving a contract.
POINT THREE: Eliminate the “Right to Work for Less.”
“Right to Work”—in other words, the “open shop”—is one of the hallmark union-busting measures of the Right (note: employers fighting for the “open shop” goes back even further than the 1940s and was adopted as a policy of the National Association of Manufacturers in 1903). With Right to Work, everyone in a bargaining unit is protected by the union-negotiated contract, and everyone is entitled to union representation in employment matters, but they choose whether or not to pay union dues.
Where did this come from? The original NLRA (1935) allowed “closed shop” agreements where union membership was a condition of hiring: everyone belonged to the union if they worked in a unionized shop, and in some instances, you had to join the union to get hired. Taft-Hartley (1947) changed that, and set up alternative “union security agreements”: in other words, an “agency” or “fair share” fee. Under an “agency shop,” workers that decline to become full dues-paying members of their union must—as a condition of employment—pay a percentage of the membership fee to cover the cost of union representation. This eliminates the so-called “free rider” problem, where workers can derive all of the benefits of union membership—better wages, representation—without paying the cost of those benefits.
But Taft-Hartley provided an out: under Section 14(b) of the Taft-Hartley Act, states can pass laws prohibiting the “union security agreements” allowed under federal law. This is where “Right-to-Work” comes in. A majority of states have passed “Right-to-Work” laws since 1947, with the earliest push coming in the Jim Crow South (more on the racist origins of “Right-to-Work”).
The practical effect of “Right-to-Work”: limiting union growth (a key goal of wealthy segregationists scared of cross-racial working-class organization), starving unions of resources, and encouraging members to view union membership transactionally. Repealing Section 14(b) of Taft-Hartley would outlaw “Right-to-Work,” instantly changing the landscape of private sector unionization across the country.*
*Note: it would not impact the Supreme Court decision made in Janus v. AFSCME, and the public sector will continue to be “open shop” until the Supreme Court decision is overturned.
POINT FOUR: Under Bernie’s plan, companies will no longer be able to ruthlessly exploit workers by misclassifying them as independent contractors or deny them overtime by falsely calling them a “supervisor.”
One of the most pervasive means of avoiding unionization—used liberally by “gig economy” companies like Uber and Lyft—is miscategorizing workers as “independent contractors” working on a 1099, or classifying non-supervisory employees as “supervisors.” (Check out this CWA resource on “independent contractor” vs. “employee”). There’s a simple reason: avoiding payroll taxes, plus independent contractors and supervisors aren’t eligible for union rights under federal labor law (along with things like overtime, etc.)
By tightening regulations on worker misclassification, not only would unionization be easier—it’d make a wider range of workers eligible for protections under federal labor law.
POINT FIVE: Make sure that employers can no longer use franchisee or contractor arrangements to avoid responsibility and liability for workers by codifying the Browning-Ferris joint-employer standard into law.
Franchisee and contractor arrangements have been a crucial means of “union avoidance” by megacorporations such as McDonald’s and Wendy’s. By utilizing franchise arrangements or subcontracting out services (or subcontracting the subcontracting, as sometimes happens), the umbrella employer shields themselves from being party to bargaining with employees. Their argument is simple: we don’t actually employ them, we contract with someone that employs them (and can terminate that agreement if needed). The flipside, of course, is that even if employees of a franchise or contractor unionize, they’re handcuffed in what they can bargain—especially in franchise agreements that narrowly lay out the terms of the relationship between the franchisor and the franchisee.
This is particularly important in the fast food industry, where few (if any) companies are corporate owned (it’s also an issue with cell phone companies with the expansion of third-party non-union “licensed retailers,” was a major issue during the 2017 AT&T strike). In Browning-Ferris, the Obama-era NLRB expanded a “joint-employer” standard forcing parent corporations to be party to bargaining with franchised or contracted union employees. Unfortunately, that was promptly overturned by the NLRB’s current Trump majority.
By codifying the Browning-Ferris standard into law, franchised and subcontracted employees would be able to organize and bargain effectively with greater certainty than that provided by NLRB rulemaking.
POINT SIX: Give federal workers the right to strike.
This is seismic.
There has never been a major presidential candidate that has ever called for the right of federal sector workers to strike. Under present law, not only are federal sector strikes illegal, federal workers are subject to draconian penalties.
The most infamous example is the 1981 Professional Air Traffic Controllers Organization (PATCO) strike under Reagan. As a consequence of their illegal strike, the air traffic controllers were fired, PATCO was decertified as a union, and strikers were barred from all federal service employment (a ban lifted over a decade later by Clinton). It’s hard to find a more thorough and ruthless example of union busting, and it’s no stretch to imagine Trump—or any other Republican (and some Democratic) Presidents—doing the same or worse.
Because of this—and other rules particular to federal sector unions, largely established through the Federal Service Labor-Management Relations Statute and Executive Orders—federal workers are handcuffed in what they can and can’t do, are subject to the whims of ever-changing Department and Agency directors, and lack leverage to effectively bargain and enforce contracts. Ultimately, they’re forced to rely on the cooperation of the boss, which can and does change from administration to administration. That vulnerability is on full display as the Trump administration fights to kill federal sector unions: which have little recourse other than through the court system.
The potential power for workers is clear, too. Although it wasn’t a coordinated strike, Transportation Security Administration (TSA) screeners helped end the 2018-2019 government shutdown through industrial action like mass “sickouts,” leading to the closure of major airports like LaGuardia.
POINT SEVEN: Make sure every public sector union in America has the freedom to negotiate.
Public sector unions are one of the strongholds of the American labor movement. Unfortunately, union rights—like public sector bargaining—aren’t a given. Let’s take K-12 and higher education employees (both “professional” employees and support staff) as an example.
Six states—all in the South—prohibit K-12 teachers (and other public sector employees) from bargaining. Tennessee allows limited “bargaining” for K-12 teachers (for more on that, see Chris Brooks), but prohibits support staff bargaining. Even more states have restrictions on the scope and nature of bargaining. Draconian laws passed in Wisconsin, Iowa, and Missouri (most infamously Scott Walker’s 2011 “Act 10” law, which triggered mass protests) limit what unions can bargain over, and mandate onerous regular recertification elections for unions to continue to exercise the right to bargain.
If we want to get even more into the weeds, even progressive states with powerful unions—like Hawai’i, the most heavily unionized state in the country—have carve-outs exempting some employees, like graduate assistants, from union rights. The reason for this patchwork: public sector bargaining law is handled on a state-by-state basis, and many states (especially in the South) have acted to restrict or ban public sector unionization. Not coincidentally, teachers in states with strong bargaining laws boast higher average pay.
Federal legislation, supported by Sanders, aims to change that. The “Public Service Freedom to Negotiate Act,” introduced by Rep. Matt Cartwright (D-Pennsylvania) and Senator Maize Hirono (D-Hawai’i), sets a federal floor for bargaining rights for public sector workers. By doing so, it ensures that there is a minimum standard for union rights afforded to all public sector workers: something that would enormously benefit public sector workers in the Southern United States, most of whom lack the right to collectively bargain.
According to Sanders, signing the “Public Service Freedom to Negotiate Act” is a key part of his plan to overhaul union rights, and its passage would represent a massive expansion of union power in a sector that boasts higher-than-average rates of unionization.
POINT EIGHT: Require companies that merge to honor existing union contracts.
As Strikewave reported in March, when General Electric sold their Transportation division to Wabtec, the new company demanded substantial wage cuts, two-tiered wages and benefits, and other contractual changes from United Electrical Workers’ (UE) Locals 506 and 618. Luckily, workers at the Erie plant were able to fight off most of Wabtec’s demands.
What triggered the struggle: spinning off the Transportation division opened up the contracts reached between General Electric and Locals 506 and 618. When corporations spin off unionized subsidiaries and divisions, it opens the door for new management to fight to drive down wages and extract concessions from their workforce under the guise of increasing “competitiveness.” Under the Sanders plan, federal legislation would require new management to honor existing collective bargaining agreements for the lifetime of the agreement.
POINT NINE: Deny federal contracts to employers that pay poverty wages, outsource jobs overseas, engage in union busting, deny good benefits and pay CEOs outrageous compensation packages.
Corporations, educational institutions, nonprofits, and other entities across the United States are the recipients of federal contracts and grants: some of them highly lucrative. Many of those same corporations—Boeing, for example—engage in rampant union busting while making billions off of federal contracts. In addition, many publicly subsidized colleges and universities that rely on federal grant funds turn around and utilize public money to pay exorbitant amounts to union busting law firms.
Under the Sanders plan, federal contracts could be revoked or denied to low-wage employers, union busters, and companies that engage in offshoring (read: most American companies). Making federal funds contingent on “good behavior” is a powerful means of leverage.
POINT TEN: Ban the permanent replacement of striking workers.
The strike is the most powerful weapon that workers can wield. But in the United States, private sector workers are restricted in how they can use strikes.
Under American labor law, private sector industrial action distinguishes between two types of strikes: economic strikes (strikes primarily concerned with obtaining concessions on wages, benefits, and conditions of employment), and unfair labor practice strikes (strikes precipitated by a formal charge of a prohibited unfair labor practice, or ULP, committed by an employer).
Since the 1964 Hot Shoppes, Inc. case, the National Labor Relations Board (NLRB) has held that employers can, in instances of economic strikes, permanently replace workers on strike: a standard slightly changed in a 2016 ruling, albeit one unlikely to survive a challenge under the current NLRB. That means scabs brought in temporarily to break the strike can stay on permanently—potentially putting, committed union members out of work once the strike is over. In other words, economic strikes are an enormous gamble and employers often take ruthless action to crush them, especially when they think that the White House is on their side (which it usually is).
That’s why most unions engage in ULP strikes—strikes (like the recent AT&T strike in the Southeast) precipitated by filing a ULP charge with the NLRB. In a ULP strike, striking workers can’t be permanently replaced—but there needs to be a documented ULP filed first.
Sanders proposes to codify into law that no matter the type of strike, striking workers can’t be permanently replaced, period. This would be a major shift in the balance of power, emboldening unions to more liberally utilize strike threats while bargaining.
POINT ELEVEN: Protect the Pensions of Workers
Multiemployer pension plans are in crisis.
As detailed by the AARP, multiemployer pension plans are pensions funded by union members employed at multiple employers. These pension plans, some of which were pervasively underfunded or tied to high-risk investments, suffered greatly in the wake of the 2008 crash (and declining union membership contributes to the funding problems).
The solution offered by Congress was the same as the “solutions” enacted in state pension plans across the country: cut the level of benefits, inclusive of—in this case—current retirees.
Sanders proposes to make multiemployer pensions solvent through taxing the rich and providing government funds to stabilize pension funds.
POINT TWELVE: Stop corporations from forcing workers to attend mandatory anti-union meetings as a condition of continued employment.
This might sound familiar, especially if you’ve worked for union “averse” retailers (or if you’ve watched Superstore).
Mandatory anti-union meetings take a few forms. Most familiar is the standard anti-union video, often integrated into new employee orientations or played every now and then to keep the workers in line. A number of corporations—ranging from big box retailers to Amazon—use these liberally to attempt to “inoculate” workers against thoughts of higher wages, benefits, and the dignity and collective power that comes from organizing on the job.
Less familiar is something called a “captive audience” meeting. Usually these take place only when there’s fear of an active organizing campaign, and they’re a mainstay of “union avoidance” campaigns waged by employers in between workers filing for an election, and the election itself. In captive audience meetings, employers are brought in—en masse, in groups, or even individually—to meet with supervisors, often with corporate lawyers present. In the case of the recent United Auto Workers’ campaign to organize Volkswagen in Chattanooga, Tennessee, the Governor of Tennessee was brought in to lead a captive audience meeting to scare workers that their jobs were threatened by unionization.
In these meetings, employers can’t directly threaten employees, direct them how to vote, ask how they’re voting, or promise them outcomes if they do or don’t vote for a union. What they can do is insinuate, propose “what if” scenarios, cherry pick facts and information, and do everything short of saying “you’ll lose your job.” Nice factory you have here—it’d be a shame to lose it to offshoring.
Sanders proposes to sharply curtail the use of “captive audience” meetings through prohibiting employers from making them mandatory.
POINT THIRTEEN: Establish federal protections against the firing of workers for any reason other than “just cause.”
If enacted, it’s no exaggeration to say universal “just cause” would be one of the most consequential changes in the nature of work in American history.
The vast majority of American workers work under what’s termed “at will” employment. What that means in practical terms is that employers can fire their employees for any reason, or no reason at all—provided they’re not specifically restricted by law (usually laws against discrimination like the Civil Rights Act and the Americans with Disabilities Act).
For workers fired illegally for discriminatory reasons, there are two standard remedies: a complaint through the Equal Employment Opportunities Commission (EEOC), or independent civil action (usually an EEOC complaint can lead to civil action). Even those aren’t foolproof. Religious employers have even wider latitude; if you teach at a Catholic educational institution and are fired discriminatorily, it’s likely they’ll get away with it because of something called the “ministerial exception” (surprise: if you work for a religious employer they call it a “ministry,” at least as a legal defense).
In summary, employers can pretty much fire workers for whatever reason—and even the scant laws that exist to protect workers from discrimination are flawed and riddled with loopholes.
“Just cause” sets up a different standard of employment that prevails in many other countries (more on the standard measures of “just cause” here). In short, it means that employees can only be discharged for serious, work and performance related reasons, and that employers typically have to implement something called “progressive” discipline: the punitive action has to match the alleged infraction, and they can’t jump straight from a first “offense” to firing. It’s common in union contracts and is extended by statute in some specific cases (like School Code protections for teachers)—but even in the case of union contracts, it has to be bargained, and employers often demand “probationary periods” in union contracts where employees are still “at will.”
Moshe Marvit and Shaun Richman have argued persuasively for the necessity of universal just cause, and Sanders has taken up the challenge. If enacted, not only would it extend employment security to all workers in the United States, it would also embolden workers to organize on the job with less fear of retaliation from the boss.
POINT FOURTEEN: Create a sectoral collective bargaining system with wage boards to set minimum standards across industries.
This one takes some explaining, and we’ll try to keep it simple.
The United States is (mostly) unusual in the world because working conditions are bargained at the workplace level. In the United States, contracts are reached between workers and management in a specific workplace; unions are certified as the “bargaining agent” for specific “bargaining units” and contracts are specific to those bargaining units.
To use a hypothetical example in healthcare: there are two hospitals, operated by University of Pittsburgh Medical Center (UPMC). One is in Pittsburgh, one is in Altoona. If workers at the Pittsburgh UPMC facility unionize, it doesn’t mean that workers at the Altoona hospital are unionized too. Likewise, two similar unionized hospitals in the same city, represented by the same union, with similar operations but operated by different corporations, will be covered by two different contracts.
Of course, unions are smart. Starting in the 1950s, unions began to engage in something called “pattern bargaining”—targeting a specific employer within a sector, leveraging concessions, and then using that agreement as the standard for bargaining with all other employers in the same sector. Pioneered by the United Auto Workers’, labor leaders like Jane McAlevey and unions like UNITE-HERE have leveraged it more recently to great success.
This is all in contrast to the model of labor relations that prevails in most other nations: “sectoral” bargaining. Unions bargain with employer federations—often with government involvement—to set industry-wide standards for employment conditions. One of the strongest examples of this is German industrial relations; last year, IG Metall (the largest industrial union in Europe) bargained a twenty-eight hour work week and 4.3% wage increase across the metals and electrical industries in the German state of Baden-Württemberg.
Under the Sanders’ proposal, the United States would move toward limited sector-wide bargaining in the private sector through the creation of “wage boards,” where employers would bargain with worker unions to set wage standards across the sector. Additionally, all levels of government from the municipal on up would have the right to set their own minimum wage, banning “pre-emption” laws where states restrict the right of local government to set their own minimum wage. His call for sectoral bargaining is restricted to wage boards, and would—it seems—supplement rather than replace the current system.
POINT FIFTEEN: Guarantee the right to unionize for all workers.
When the National Labor Relations Act was passed in 1935, specific categories of workers—such as domestic and agricultural workers—were exempted from the right to unionize. There’s one overwhelming reason: work in those industries was (and still is) overwhelmingly done by workers of color, and Roosevelt wanted to appease segregationists.
Some states have acted to close this loophole, particularly for farmworkers—but they’re a minority, meaning that in most states farm and domestic workers lack the right to form a union and bargain collectively. Sanders has expanded on his Workplace Democracy Act (which was silent on this matter) to propose closing the loopholes exempting domestic and agricultural workers from union rights.
POINT SIXTEEN: Allow for secondary boycotts.
Prior to the 1947 passage of the anti-union Taft-Hartley Act, unions could pressure suppliers and other businesses—usually through pickets and boycotts—working with a target engaged in an industrial dispute. If Tyson is a major supplier of a fast food business that goes on strike, unions could pressure the business by urging a boycott of Tyson.
The Sanders proposal would repeal the sections of Taft-Hartley prohibiting secondary boycotts, letting unions once again use them as a tactic.
POINT SEVENTEEN: Expand and update the persuader rule.
There are rules and guidelines for what employers can and can’t say to employees thinking about forming a union.
The standard restrictions are summarized in the acronym “TIPS”: employers can’t threaten, intimidate, promise, or surveil. Of course, that still leaves a lot of room to maneuver, and a literal multibillion dollar industry—led by legal megafirms like Proskaeur Rose and Ballard Spahr—exists to bend, break, and get around those rules, helping employers keep unions out. The billy clubs and rifles wielded by the Pinkertons have been replaced by leather briefcases and tailored suits.
To address this, in 2016 the NLRB proposed a “persuader rule” requiring employers to disclose the advice received by their union busters. Unsurprisingly, it was promptly repealed by the Trump NLRB.
Sanders wants to restore the rule, and to go one further: his proposal mandates that employers disclose who they’re retaining, the methods they’re using to reach workers, and how much they’re spending. Employers spend exorbitant sums to keep out unions—and Sanders wants employees to know exactly how much avoiding a union is worth to the boss.
POINT EIGHTEEN: A fair transition to Medicare for All.
One of the attacks wielded against Sanders from centrist Democrats—notably, Tim Ryan and Joe Biden—has been the impact of single-payer on union-negotiated healthcare. Unfortunately, AFL-CIO President Richard Trumka has given them cover for the attack.
Sanders has consistently answered—correctly—that employers pit healthcare and wages against one another, forcing unionized workers to choose between wage increases and keeping their healthcare costs under control. Even under union negotiated healthcare plans, copays, premium contributions, and deductibles are routine.
Single-payer would eliminate those out-of-pocket costs, resulting in savings for most union workers. Moreover, taking healthcare off the table as a constantly-rising employer cost would give workers more leverage to bargain money into wage increases.
Regardless, Sanders is proposing that all union contracts would conduct “special” bargaining, and employers would be required to shift some of their healthcare cost savings into wage increases. Bargaining would be supervised by the NLRB to ensure compliance. In effect, it’s a proposal to ensure that as Medicare for All reduces healthcare costs for employers that some of that gain is given to workers through wage increases.
Unfortunately, it’s the weakest part of the Sanders Workplace Democracy Plan—no doubt because it exists largely to answer criticism from some union leaders, and as a shield against disingenuous attacks from corporate Democrats. An enormous number of private sector union contracts exist across the country, and the NLRB isn’t equipped or staffed to supervise bargaining on all of them simultaneously (nor is that their role). Moreover, public sector unions wouldn’t be covered by the proposal, since state-level agencies (not the NLRB) have jurisdiction over public sector labor relations.
It’s also unclear whether it’s even possible to federally mandate that contract negotiations are opened and limited only to specific subjects of bargaining, and with specific mandates on the ground rules and outcomes of bargaining. Even if the federal government can unilaterally open up collective bargaining agreements without the consent of the parties, it’s a potentially concerning precedent to set.
The strong part of this section is a suggestion that union-operated healthcare services (like clinics, etc.) will be integrated in the single-payer network. These clinics will continue to operate as normal but, how their services are paid for will change. It’s a fairly straightforward suggestion, and makes sense.
In sum, Sanders is correct that union workers would benefit enormously from Medicare for All—and labor leaders that oppose it are doing so for nakedly political reasons, and against the best interests of union workers. But his proposal for a transition is unnecessary (except as a defense against disingenuous attacks), and raises more questions than it answers.
Summary
The Sanders plan isn’t perfect. There are points that need more detail. It’s strongest when it’s creating ambitious policy—and weak when, as in the Medicare for All point, it’s playing defense for political reasons.
But it’s the boldest vision for pro-worker labor policy released by a major presidential candidate since the New Deal: one that outstrips any recent proposal in recent memory, and which sets a high bar for presidential contenders to match. American workers and union leaders should take it seriously, and demand that Presidential candidates match it—or exceed it.
C.M. Lewis is a PSEA/NEA UniServ Representative in Pennsylvania and a member of UAW Local 1981.