Editorials

White House Summit on Worker Voice

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

I’m heading to D.C. tonight to participate in a panel at tomorrow’s White House Summit on Worker Voice.  The panel (which includes Mark Barenberg from Columbia Law School, Dorian Warren of the Roosevelt Institute, and Rep. Bobby Scott) will focus on how the law might change to better facilitate worker voice.  As I see it, this question calls on us to pay attention to two broad categories of potential reforms.

The first is legal reforms aimed at better enabling union organizing and collective bargaining: the institutions that have had the greatest success in ensuring worker voice across U.S. history.  Here, the newly proposed WAGE Act is a good example.  By strengthening the NLRA’s remedial regime and adding a private right of action, that bill will put workers in a better position to exercise their federal right to choose whether or not they want to be represented by a union. The NLRB has also been taking important steps to better enable employee choice on the union question: expanding the joint employer doctrine, for example, and improving union election rules.

The second category is legal reforms aimed at enabling forms of worker voice other than traditional unionism and collective bargaining.  One possibility, already widely discussed, is expanding the scope of the bargaining obligation to include members-only unions. Such a course holds significant promise, and might be accomplished without legislative change.  A recent paper by Moshe Marvit, which describes some real-world examples of members only unions (albeit in a world where there is no bargaining obligation) ought to be part of the discussion of this option.  Catherine Fisk and I have also discussed a variation of this idea: requiring employers to bargain with members-only unions in right to work states.  Workers centers provide an additional vehicle for voice, and here the challenge may be more in protecting the centers from legal attack than in changing the law to enable their growth. Another possibility for reform is to relax the restrictions contained in 8(a)(2) in order to allow experimentation with works councils – broadly defined.  As is the case with members-only unions, of course, works councils raise a host of questions and pose some risks (similar to the risks that led Congress to ban company unions in 1935).  The Summit should offer a good opportunity to confront these questions and to assess the benefits and risks associated with these kinds of legal reforms.

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