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.