Vice President, Labor Policy
May 17, 2018
As observers of labor policy know quite well, organized labor is at its lowest point since the mid-1930s, and unions and their allies in government continue to search for ways to reverse that trend. One way some members of Congress have pointed to is their so-called Better Deal list of priorities that includes several labor-related provisions. Meanwhile, a group of Democratic legislators is rallying around the Workplace Democracy Act, which Sen. Bernie Sanders announced on May 9. Suffice it to say, if enacted the bill would radically alter labor policy to promote union interests at the expense of employees’ and employers’ rights.
The proposed law contains many harmful provisions. Among the most notorious is the “card check” proposal, lifted from the Employee Free Choice Act (EFCA) of yesteryear, that would eviscerate the right to a secret ballot in union representation elections. That provision alone remains as objectionable as it was when Congress considered—and thankfully rejected—labor’s efforts to enact it in 2009. But things get worse from there.
Another aspect of the proposal would require mandatory first contract arbitration after a mere 90 days of collective bargaining. Such government-imposed contracts could leave everyone worse off because both sides could be stuck with a result they dislike, and workers would be prohibited from voting on the terms of their new employment contract for two years. In other words, binding arbitration would eliminate free choice for workers.
The Workplace Democracy Act also would repeal Section 14(b) of the Taft-Hartley Act of 1947, which permits states to adopt right-to-work laws giving workers the freedom to opt out of union dues. Since its passage, twenty-eight states have enacted right to work laws, including several in the Rust Belt and Midwest in the last several years. Organized labor makes no secret of its hatred for right-to-work laws and files legal challenges against them every time they are passed, despite the fact that courts consistently uphold the statutes. The bill itself cynically refers to them as “Right-to-work for Less Laws,” even though there is ample evidence that they are good for the economy.
Another concerning section of the bill would implement the California Supreme Court’s stringent new standard for determining who is, or is not, an independent contractor. This standard would, depending on its application, undermine the legitimate business models of a range of companies, particularly those in the emerging innovation economy.
For good measure, the Workplace Democracy Act also addresses the issue of joint employment and applies joint and several liability on purported joint employers. It goes on to define joint employment with the expansive, loosey-goosey standard adopted by the National Labor Relations Board in its 2015 Browning-Ferris decision that upended a clear, well-established standard.
Unions also would be given the right to engage in secondary boycotts and engage in certain types of picketing that are currently illegal. The bill would allow unions to target third-party employers that do business with another employer that a union wants to organize or with whom it has a labor dispute, thereby pressuring businesses that have nothing to do with the union.
Lastly, the bill would gut the so-called “advice exemption” for labor relations consultants who advise employers in organizing campaigns. Both parties would be required to file financial disclosure forms if the consultant provides any form of communication that will be presented to employees, and employers would be forced to turn over to a union any contact information they use to communicate with employees.
Thankfully, the Workplace Democracy Act has little chance of being enacted as things stand right now. However, the sponsors of the bill have clearly spelled out their objectives should there be a shift in political fortunes. This is a piece of legislation that bears watching.