This week, United Teachers Los Angeles called their first strike in decades.  While the parties are negotiating over wages and staffing, a central issue in the dispute is the much bigger question of underfunding of the public school system.  Teachers are asking for smaller class sizes, repairs to crumbling school buildings, and the hiring of more janitors and nurses.  The LA teachers thus join their colleagues across the country in the #RedForEd movement to demand a say on public education policy, not just what they get paid and how many hours a day they are on the job.  

Teachers are not alone in taking a collective stand on issues that go to concerns more traditionally thought of as management or policy concerns than workers’ concerns.  Take the Google walk outs.  The more than 20,000 software engineers and employees didn’t walk out to get more pay or better benefits.  They walked out in part to protest Google’s creation of Dragonfly, a censored search engine for the Chinese market.  Or look at Accenture workers who petitioned their bosses to cancel a contract to help the Trump Administration recruit border patrol agents.  Staff at Boston’s Marriott hotels negotiated getting advance notice of company plans for automation and early engagement in tech design decisions. 

Recent research validates that workers want more say in more than just what they get paid and what hours they work.  Tom Kochan, Co-Director of the Institute for Work and Employment Research at MIT’s Sloan School of Management, recently published results from a major survey, “Worker Voice in America: Is There a Gap Between What Workers Expect and What They Experience?”.  Kochan’s research shows that workers experience a substantial and growing worker voice gap on a range of issues, including their ability to influence the quality of the products their employer produces and their employers’ values.  Research done by Deloitte suggests that this desire to influence workplace values and social impact Is a significant concern for millennial workers.  Deloitte found that millennials were disappointed in their employers’ lack of commitment to having a positive impact on society and the environment and believed that they made generating profits too high a priority.

What are workers who want to have voice on these kinds of management and policy issues to do?  Should they follow the example of Google software engineers or #RedForEd teachers? Should they try to form a union so they have a legally protected right to engage in collective bargaining? In fact, workers in the U.S. in the private sector and in much of the public sector have little right to influence these kinds of decisions. 

As OnLabor readers well know, under the National Labor Relations Act, unionized workers have a right to bargain over wages, hours or other terms or conditions of employment (“permissive subjects”) and are limited to requesting employers’ agreement to address any other topics (“permissive subjects”); nonunion workers’ right to act collectively without fear of retaliation is limited to conduct that is deemed to be “for mutual aid or protection,” a category that is slightly broader than mandatory subjects of bargaining but is still constrained by the requirement that it be related to an attempt to better working conditions. Although Obama-appointed General Counsel Dick Griffin issued an Advice Memorandum that supported an expansive vision of “mutual aid and protection,” it seems highly likely that the current Trump-appointed General Counsel would find differently.  Moreover, as Ben and I noted in a post-Epic Systems post, there is reason to be concerned that the Supreme Court is poised to further constrain the definition of protected concerted activity.

The events of this year described above demonstrate that workers don’t see bright lines delineating what issues they should be able to influence through their collective voice – either at the bargaining table or in the streets.  But, by drawing a bright line between mandatory and permissive subjects of bargaining and around what constitutes mutual aid and protection, the law walls workers off from those issues about which they care and which can have as profound an impact on their working lives as those topics within the zone of legal protection. 

In enacting the NLRA, Congress deemed that there was a value to workers having the opportunity for a meaningful say in their work lives through the collective bargaining process.  This purpose is unfulfilled when important decisions are deemed to be at the “core of entrepreneurial control” and therefore off the bargaining table without the company’s permission.  That workers have no right to bargain over growing phenomena like fissuring, outsourcing and automation demonstrates anew the serious flaw in the law that categorizes these kinds of business decisions as off limits for workers’ demands.  . 

Political strikes, moreover, have always been important.  Consider that hundreds of thousands of working people showed up in Washington, D.C. in the middle of a work day in the middle of the week to March on Washington for Jobs and Freedom.  The Google, Accenture and RedforEd workers are following in their footsteps, yet still have to wonder if their collective action could get them fired.  In a time when our political system has become much less responsive to the interests of workers at least in part as a result of the diminishing strength of the traditional labor movement, these  high profile collective actions are an important means for workers to get the attention of our elected officials, as well as corporate leaders, who have an unprecedentedly loud voice in our political system.  The law should support this form of expression instead of inhibiting it.

The wave of strikes, walk outs and workplace petitions this year raises the question of whether the law really is inhibiting workers from having a say on the broad range of issues about which they care.  The courage of the workers involved in the events described above doesn’t undermine the case for reforming the law.  Most of these examples involve workers who have a fair amount of protection derived from their skills and status, not the law.  Google engineers are highly skilled and in great demand so they don’t need to worry as much as most workers about being fired for engaging in activity that the law doesn’t protect.  Similarly, in an age of teacher shortages in many parts of the country, it was unlikely that all the RedforEd activists would be let go when they walked out.  The law is successful, however, only if it protects the most vulnerable as well as the most powerful.  It is impossible to know how many workers today forgo collective action because they can’t be sure that if their employer retaliates against them they will be able to shoehorn their concerns into the narrow aperture the law allows.

The Clean Slate Project is exploring several reforms to address this deficiency, including:

  • Expanding the definition of mandatory subjects of bargaining or eliminating the distinction between mandatory and permissive subjects.
  • Mandating worker participation on corporate boards so they have a say in strategic corporate decisionmaking.
  • Establishing a general right to engage in concerted activity without fear of reprisal, not limited to work-related objectives.

Whatever the particulars, we need legal reforms that open labor law’s protection to reach the issues that workers are already putting on the table.