It’s no secret that our weak, outdated labor law is failing the millions of workers who want unions at their workplaces.  Republicans have repeatedly blocked federal legislation to strengthen the law.  This untenable situation has been made worse by President Trump destroying the independence of the National Labor Relations Board, firing Gwynne Wilcox and installing appointees who are poised to further weaken workers’ rights.

Federal legislation to restore and strengthen workers’ ability to form and join unions is urgently needed.  Our country needs a strong, vibrant, worker-driven labor movement.  Unions are good for all workers.  The improved wages and benefits unionized workers win at the bargaining table have positive spillover benefits for non-union workers.  And unions are crucial to our democracy, as a check on corporate power and as active participants in elections and public policy.  Where unions are strong, states have better labor standards, higher investments in healthcare and education, and less voter suppression, among other benefits. 

Some advocates, including Harvard’s Center for Labor and a Just Economy (CLJE), are calling for a new type of labor relations system in the U.S. – sectoral bargaining.  With sectoral bargaining, wage and benefit standards are negotiated by unions and employers for all employers in a particular sector or industry, as opposed to the typical worksite-by-worksite or employer-by-employer system in the United States.  More workers get the benefits of the bargaining, and there is less risk of a race to the bottom by employers seeking to undercut wages and benefits.

Winning sectoral bargaining at the federal level would require legislative reform, because currently there is no mechanism in our labor law to require employers to come to the bargaining table as a group and bargain wages and benefits with unions representing their workers.  Unions can request, and employers can agree, to engage in multi-employer, multi-union bargaining, and many do in the construction, entertainment, and other industries, but it’s optional on the employers’ part whether to agree to this arrangement.

One possible approach to facilitating broader bargaining would be to make it easier for workers to demand multi-employer bargaining and require the National Labor Relations Board to grant the request unless an employer could show that multi-employer bargaining is impossible.  This approach has the advantage of building on existing law rather than creating a new system.  Unions could build toward sectoral bargaining by expanding the reach of their existing bargaining relationships, building stronger unions and membership in the process.  If coupled with other key reforms such as prohibiting employers from participating in the representation election process and providing a process for reaching a first agreement (key pieces of the Protecting the Right to Organize Act), this proposal would make it more possible for workers to organize unions and build toward broader, sectoral standards, as was the case when unions were stronger. 

In the meantime, some advocates are looking to the states to adopt pro-union reforms.  Led by SEIU and the Machinists Union, unions have won sectoral bargaining laws in several states (MA, CA, IL) to provide collective bargaining rights for rideshare drivers who are not currently considered employees under federal labor law.  (If the drivers were covered by federal law, the state laws would be preempted.)  These new laws provide an opportunity to test sectoral approaches, including whether workers will join a union if they get the bargained-for benefits regardless.  (Collective bargaining coverage is significantly higher than union membership in many countries with sectoral bargaining).

Other advocates have pushed for the establishment of wage boards – government boards with representatives from business, labor, and government that recommend wage and other workplace standards for a particular sector or industry.  Wage boards can improve conditions for workers, and unions can play an important role in their work.  That said, wage boards are no substitute for unions or the collective bargaining process between workers and their employers.

States can and should adopt collective bargaining laws for the millions of public sector workers and other workers not covered by federal law.

Because federal preemption rules restrict what states can do on private sector union rights, some advocates have argued for changing the rules on preemption to give the states more room to maneuver.  While well meaning, this proposal has serious downsides. 

Preemption works both ways – both for and against unions.  Preemption has kept states from enacting reasonable reforms, like telling employers they cannot use state money to fight unions, or that they must voluntarily recognize unions that have majority worker support.  But preemption has also prevented states and employers from enacting and using laws to undermine unions.  (So-called state right-to-work laws are a special case because Congress has explicitly authorized them).  Changing the rules on preemption might open the door to pro-worker reforms in Blue states, but it would also open the door to anti-union actions in Red states – the worst of which we have been spared so far because of preemption.

The map is not in our favor – there are more Red trifecta states (Governor, House and Senate all led by the same party) than Blue trifecta states, and more people living in Red trifecta states than Blue ones. 

We also cannot jeopardize union rights for workers in Red states, where workers are organizing unions against tall odds and negotiating strong agreements, at BlueBird Bus in Georgia, Volkswagen in Tennessee, New Flyer in Alabama, hospitals in Florida, and many more.  Bureau of Labor Statistics numbers show that the south experienced higher growth in union membership than other parts of the country.  These workers need unions as much as or more than workers in other parts of the country.  We should not put their rights at risk in exchange for potential gains in other parts of the country.

And we need to be careful not to overestimate the likelihood and scale of success in more union-friendly states.  Consider what happened in the states when rideshare and other platform companies mounted an expensive, and successful, state-by-state campaign to exempt drivers and other workers from labor and employment laws, including in blue states.  If the action is at the state level, employers are going to flood the states with money and fight any progressive reform, including in Blue states, where in the last year, at least three governors – Virginia, Colorado, and California – have vetoed pro-union legislation, despite claiming to be pro-worker and pro-union.

If we want to change the rules on preemption – e.g., evaluating whether Congress should allow states to require card check recognition by employers or whether the tradeoffs to get it are too high — this should be part of the federal labor law reform discussion, not something that is argued on a state-by-state basis or litigated in federal court.