Addressing Racial Exclusion Through Sectoral Bargaining

Published July 23rd, 2019 - 07.23.1931

In the recent conversation between Veena Dubal and Benjamin Sachs and Sharon Block, there is solid agreement around the need to grant collective bargaining rights to platform workers. Yet the right way to get there is subject of intense debate.

However, underneath this debate, lies a more fundamental question: what do collective bargaining rights, set forth by the NLRA, achieve for workers currently covered by the Act and notwithstanding those excluded from it? Far from enough, and this is why Block and Sachs are calling for major labor law reform. To get this ambitious reform process started, they have mobilized experts and activists through the Clean Slate for the Future of Labor Law Project here at Harvard’s Labor and Worklife Program.

As a political scientist by training, one question that the project addresses, particularly stands out to me: What is the level of bargaining most conducive to building worker power? It stands out to me, because it likely is the question around which to build the next generation of labor law, such that it will be a keystone to a just and inclusive democracy. To get to a just and inclusive society, we first need to confront systemic patterns of oppression. Historical and present racism are inscribed in and reinforced through current labor law. In his foreword to Critical Race Theory. The Key Writings that Formed the Movement, Cornel West provocatively says: “[Critical race theory] compels us to confront critically the most explosive issue in American civilization: the historical centrality and complicity of law in upholding white supremacy (and concomitant hierarchies of gender, class, and sexual orientation).”

U.S. labor law is inherently guilty of perpetrating racism, as evidenced by the racially motivated exclusion of agricultural and domestic workers from the NLRA. But the Act is racist in many other pernicious ways, starting with how it sets collective bargaining at the enterprise-level. Enterprise-level bargaining reinforces racial segregation by structurally impeding the formation of inter-firm solidarity: it constrains the number of workers who can join forces and creates divides among workers who would otherwise share an economic class struggle. By doing so, it also exacerbates economic and political inequality. Upscaling collective bargaining then becomes an important step to overcoming racism and thus building a just and inclusive democracy.

Upscaling bargaining to combat inequality for all and people of color in particular.

In his research on inequality and democratic accountability, Martin Gilens shows that government is over-responsive to the rich: government usually proceeds with policies that serve the interests of the affluent over those of the poor. In other words, the rich – the firm-owners and capital investors if you will – determine the economic and political course of this country (and others) at the expense of workers. Historically oppressed workers are disproportionately affected, even when the economy is supposedly doing well: while unemployment rates reached the historic low of 3.6% last April, the unemployment rate for black Americans was of 6.7% or 86% above the national average.

In this context, enterprise-level bargaining further supports corporations’ parochial mindset in which they are entitled to grab most of the profits for themselves. David Madland, over at Center for American Progress argues that, “in large part because it leads to greater coverage, sectoral bargaining also reduces economic inequality to a greater degree than does enterprise bargaining.” It reduces economic inequality because greater levels of coverage mean more powerful checks on corporations through higher wages, more money invested in workers’ safety, less hours worked per worker etc. Concurrently, recent OECD studies show that, in sectoral bargaining systems, unemployment rates go down for women and low-skilled workers and thus for people of color, who overwhelmingly occupy the most precarious jobs.

But sectoral bargaining does more than just bring back balance to economic and political power by ensuring a fairer redistribution of profits between capital investors and workers. Here, the positive impact on historically oppressed workers is only secondary and not fully intended. We cannot satisfy ourselves with that –  driving systemic change ought to be intentional.

Building bridges across race at the sectoral level.

Absent inter-firm solidarity, workers tend to be fragmented along racial, ethnic and gender divides – and even pitted against each other along those divides. In sociology, this phenomenon is typically referred to as social closure: processes of drawing boundaries, constructing identities, and building communities in order to monopolize scarce resources for one’s own group, thereby excluding others from using them. This means that we need to develop a mechanism that institutionalizes workers’ mobilization across race and other historical divides instead of feeding into them. As Erica Smiley puts it in Time to Tackle the Whole Squid: Confronting White Supremacy to Build Shared Bargaining Power: “Clarifying workers’ shared self-interests against common corporate enemies is the only way to motivate white workers who have legitimate worries and fears to act in their shared interests with workers of color […].”

It is at the sectoral-level that bargaining over working conditions can bring workers together across historical divides. By elevating the level of bargaining, we can avoid workers competing “downwards” against each other – over less safety, smaller paychecks etc. Not only does sectoral bargaining prevent such race to the bottom, it perennializes positive and mutually beneficial interactions between workers across their racial and other divides. This then sets the stage for an inclusive market economy in which firms are encouraged to be efficient and innovative, all the while relying on a broadly mobilized, and thus empowered, workforce.

It is telling that the most elaborate and innovative push towards sectoral bargaining is now coming from the domestic workers’ front. Some improvements could be made to the National Domestic Workers Bill of Rights, including making explicit domestic workers’ rights to engage in concerted activity. Yet, the very introduction of this Bill and the efforts that went into its drafting are an important signal: there is appetite for fundamental labor law reform and this appetite is fueled by democratic principles that put tackling racism front and center.

This Bill is proof that “law can serve liberation rather than domination” – another quote borrowed from Cornel West. Now is the time to move the tide and consolidate a labor law reform agenda that can truly serve the people – all people. Along the way, it is essential to spell out the democratic principles that drive us in this effort to rethink labor law from the ground up, for it is likely around them that we can build a progressive coalition to expand worker power and solidarity and, more importantly, initiate the paradigmatic shift that we need to get us there.

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