Guest Post: Collective Bargaining As We Know It Can Still Work, But It Is Not Enough

Kate Andrias is Assistant Professor of Law at the University of Michigan Law School.

Andrew Strom takes issue with labor supporters who are “arguing that collective bargaining is dead and unions need to find something new to replace it.”  He argues that passing a series of local minimum wage ordinances “is no substitute for collective bargaining.”  He is right on both counts.  Collective bargaining is essential; and employment law cannot be a replacement for large-scale organizations that are controlled by workers.  Any reform effort that rests on an abandonment of self-funded worker-led unions should be rejected.

But a commitment to collective bargaining and to worker-led organizations should not lead one to settle for our existing system of labor relations.  As Strom himself has recognized “existing labor law makes it nearly impossible for workers to join unions.  The law also makes it exceedingly hard for workers to achieve substantial gains in bargaining.  And the difficulties are likely to get worse with the new Administration.

There are at least three problems with the existing regime.

First, the National Labor Relations Act’s (NLRA) weak enforcement mechanisms, insufficient penalties, and lengthy delays fail to protect workers’ ability to organize and bargain collectively in the face of employer resistance.

Second, the NLRA, with its emphasis on firm-based organizing and bargaining, is mismatched with the globalized economy and its multiple layers of contracting.  Indeed, employers adopted these “fissured” corporate structures in part to diminish the potency of the NLRA and other employment laws.  While a few union movements, like Justice for Janitors, have been successful at getting employers to bargain on a sectoral basis in specific geographic areas, the law does not mandate such bargaining; rather, it makes achieving sectoral bargaining extraordinarily difficult.

Third, the NLRA, particularly since the enactment of the Taft-Hartley Act in 1947, is not designed to ensure the vast majority of workers significant influence over the economy or politics.  Unlike legal regimes prevalent in much of Europe, the NLRA does not empower unions to bargain in order to raise standards for workers generally, nor does it provide affirmative state support for collective bargaining.

While some people may wrongly be urging an abandonment of worker-led organizing and collective bargaining, others, like myself, are urging a reform of labor law that would combine the existing system of work-site organizing and collective bargaining with mechanisms that guarantee workers the right to bargain on a sectoral basis and to influence the political decision-making that shapes the economy.

As Strom notes, arguments for fundamental reform have been gaining currency among academics (see also here and here) and among public policy experts.  These are not “shiny new toys.”  State-facilitated sectoral bargaining combined with work-site organization is well established in labor systems abroad.  It even finds some support in U.S. history, including in the period between the New Deal and the Taft Hartley Act, when unions and employers engaged in traditional collective bargaining while also serving on commissions to set minimum standards throughout an industry.

Indeed, the contours of a system that combines traditional collective bargaining with social bargaining at the sectoral and regional level may be already emerging from the work of the Service Employees International Union, as well as from the work of several other unions and worker centers.  Workers in the Fight for $15, for example, are organizing at a sectoral level, not just a firm level, and are successfully making demands on both companies and public officials.

Of course, while fundamental federal labor law reform should be a long-term goal, it is unlikely to be achieved in the near term.  In the meantime, gains can be achieved at the state and local level.  At the same time that unions engage in worksite organizing and bargaining, they can bargain for improved conditions for all workers using state and local mechanismsand they can do so in ways that augment worker voice.  That is, although states and localities have little authority to legislate in the area of collective bargaining, they can pass universal employment statutes, and they can structure those statutes to engage and strengthen worker organizations.  

For example, several states already have laws that allow them to establish tripartite commissions through which unions, business, and the public negotiate and recommend minimum standards for various industries.  New York recently raised wages for fast food workers through this mechanism, before increasing its minimum wage throughout the state. Other localities have begun to create new sectoral bargaining mechanisms for workers who are putatively not governed by the NLRA.  The Seattle ordinance that allows taxicab and for-hire drivers to organize and bargain under city supervision is one example.  To eschew these state and local legislative efforts would makes little sense—particularly in an era of federal government hostility to labor.