How Labor Law Could Help – Not Hinder – Tackling Big Problems


Published December 6th, 2019 - 12.06.1952


As the urgency of the climate crisis grows, the question of the role of labor in finding solutions also becomes more urgent.  As OnLabor has tracked, significant parts of the labor movement have expressed support for the climate fight.  Labor groups joined the Global Climate Strikes this fall.  Numerous alliances between labor and environmentalists have sprung up, including the BlueGreen Alliance, Trade Unions for Energy Democracy and the Labor Network for Sustainability.  For the most part, these coalitions have focused on political alliances to add labor’s clout to legislative and policy fights on environmental issues.  Weaknesses in our labor law, however, hinder workers’ ability to effectively influence big problems like the climate crisis at the bargaining table.

There can now be no doubt that workers are being affected significantly by climate change.  The evidence is growing of the current – not prospective – danger to workers resulting from rising temperatures and extreme weather.  This evidence that climate change is already affecting workers’ health and safety strengthens the case that employers’ climate policies are not political or public policy issues, but workplace issues.  If our labor law can accomplish anything, it should be to give workers a channel for addressing the conditions of employment that threaten their lives and livelihoods.

Lately we are seeing workers trying to enforce demands that their employers address the climate crisis.  Leaders of the “Bargaining for the Common Good” movement have made addressing the climate crisis a focus of their innovative bargaining campaigns.  In September, Amazon workers at the Seattle headquarters walked off the job to protest the company’s failure to take bolder action on climate.  OnLabor’s own Jared Odessky recently provided an overview in “In These Times” of provisions in collective bargaining agreements that address climate protection goals.

I fear, however, that these efforts to deal with climate change at the bargaining table are destined to have limited success because of the fundamental structural problems with our labor law.  Enterprise bargaining severely limits the scope of what workers can accomplish through bargaining, including what they can accomplish on climate, because collective bargaining agreements apply only to one firm (at best).  No single employer can make a meaningful difference in climate change, no matter how much the company reduces its carbon footprint or advocates for clean energy policies.  A single employer at best can influence the after-the-fact effects of climate change, like giving workers more water breaks during periods of high temperatures.  In this way, the NLRA’s enterprise-based bargaining system precludes workers from demanding a say in any issue that is bigger than what their own employer can tackle.

Moreover, the law’s definition of mandatory subjects of bargaining raises questions about whether unions in our enterprise-based bargaining system can even get the climate issue to the bargaining table.

I’ve written previously about how the NLRA’s narrow definition of mandatory subjects of bargaining is an impediment to workers being able to weigh in on the full range of issues in which they are interested, including the response to the climate crisis.  To be a mandatory subject of bargaining, a proposal must not only be related to a term or condition of employment, it must also be within an employer’s influence or control.  See Eastex, Inc. v. NLRB, 437 U.S.  556, 568 n. 18 (1978).  If workers’ frame their objective in putting climate-related proposals on the enterprise-based bargaining table as impacting the climate crisis and reversing the trend of increasing temperatures, their proposals are going to fail the mandatory-subject test.  No single employer can be understood to influence or control climate change.

Moving to sectoral bargaining, however, would expand the scope of collective bargaining agreements in a way that would enable unions to better address climate change. Imagine if workers could create a coordinated movement to demand in bargaining that lots of employers reduce their carbon footprints – maybe together employers could actually impact climate change.  The climate crisis is so massive and all-encompassing there are legitimate questions as to whether even a coordinated approach among employers could have a meaningful impact.  Legislation that mandates radical change in the U.S. climate policy, along the lines of the Green New Deal, is necessary to save the planet.  I suggest, however, that a worker-driven coordinated sectoral policy on climate change could be a positive step in making big needed changes.

Although such a worker-driven industry-wide approach is not possible under the NLRA, labor law reform could move the U.S. to a sectoral bargaining system.   Take, for example, how a sectoral approach could work in the auto industry.  Many environmentalists believe that a big move in the U.S. to electric cars is a necessary step in reaching the U.S. obligations under the Intergovernmental Panel on Climate Change.  What if all of the auto manufacturers in the U.S. were at a sectoral bargaining table where the unions made a demand for a transition to electric vehicles?  The size of the U.S. market could influence the global market for electric cars.  Even if that is not true, sectoral bargaining in the U.S. also could facilitate a global sectoral push for more electric cars.  Let’s now imagine if unions engaged in a transnational strategy to pressure automakers around the world to increase production of electric vehicles.  Because most of the rest of the world engages in sectoral bargaining such coordination is not beyond the realm of possibility.  If successful, we could be on our way to tackling one of the most significant contributors to carbon pollution.

Electricity generation is another sector that must be reformed to arrest the climate crisis.  Unions that represent workers in the energy sector could bring clean energy generation proposals to a sectoral bargaining table and negotiate the terms of a just transition – one that leads to cleaner energy and support for workers whose jobs change as a result of such a transformation.  Germany recently engaged in such an exercise.  In January 2019, the German Coal Commission brought together industry players, unions and other stakeholders to negotiate an agreement to phase out coal by 2038.  This form of sectoral bargaining also negotiated financial support for coal miners and their communities.  While the Coal Commission was not formally a part of Germany’s sectoral bargaining system, it demonstrates the potential of an industry-wide approach to tackling big climate goals.

Facilitating sectoral bargaining over climate crisis strategies would be beneficial for two reasons.  First, it would create a new tool to put pressure on corporations to change their behavior.  So far, relying on voluntary corporate commitments or our gridlocked political system has not yielded the results we need.  Second, it would ensure that workers have a direct voice in influencing how corporations address the climate crisis.  Workers are already on the front line of suffering from our inaction on climate – it makes sense to reform labor law so they can have a chance to spur much needed action.

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