And Now for the Biden Labor Plan...Laudable But Still a Narrow View of High-Stakes, Worker Voice

Last month’s post was prompted by the release of  the labor plans by the Bernie Sanders and Elizabeth Warren campaigns. A couple weeks later, the Biden campaign released its labor plan (“The Biden Plan for Strengthening Worker Organizing, Collective Bargaining, and Unions”). Like the Sanders and Warren plans, the Biden plan contains an embrace of the traditional reforms to the National Labor Relations Act that you’d expect from a Democratic presidential candidate:

• Card check certification elections
• Ban on captive audience meetings
• Stronger penalties for labor law violators
• First contract arbitration
• Ban on permanent strike replacements
• An end to right-to-work laws allowing represented worker to free-ride by not paying union dues
• Extending coverage to domestic and agricultural workers.

The Biden plan also addresses some problematic areas that have emerged more recently, including:

• Restoring bargaining (and other) rights for federal workers
• Giving franchisors joint employer status (and thus bringing them to the bargaining table)
• Providing federal labor law protections to state and local government employees
• Giving independent contractors the right to unionize and bargain. 

Beyond labor law, the Biden plan also seeks to increase the national minimum wage, strengthen prevailing wage standards, ban most non-compete agreements and mandatory arbitration, give gig economy workers the legal status of employees, and remove harmful occupational licensing requirements. Maybe I’ve missed it, but I think this very last one is unique among the candidates’ plans, and I trust that my colleague Morris Kleiner will be pleased to see this issue recognized as he’s been the primary researcher in this area for years.

Except for the occupational licensing part, the elements of the Biden plan are pretty standard fare. In some respects, that’s not necessarily bad. These are all important issues, and that Biden is not unique in addressing them can be seen as a broad acceptance (on the left) of the problem areas. But as I argued last month with respect to the Sanders and Warren plans, there seems to be an unstated premise that workers want union representation but are unable to form unions because they are excluded from protections (e.g., gig workers) or because the election process favors employers. Research consistently shows that many nonunion workers—maybe even half of them—do indeed want union representation. But the same research also reveals that many others want other forms of voice.

The ”workers want to unionize but cannot” premise also overlooks the fact that the U.S. system is essentially all or nothing. You either have union representation in which case a union bargains for you over all terms and conditions of employment, or you do not and collective voice is probably completely lacking. All of the candidates’ plans seem to miss opportunities to promote localized, participatory forms of worker voice such as mandatory safety and health committees in which workers can gain firsthand experience with collective voice, which can grow into a desire for stronger forms of involvement and representation. Others have labeled this “training wheels voice,” and this should be included in plans to improve workers’ rights.

The all or nothing nature of the U.S. labor system also makes the certification process a high stakes affair for workers and managers. This is partly because of the big jump from no collective voice to the union as the exclusive representative over all terms and conditions of employment, but also because it can be difficult to remove an unresponsive union. So a bolder change would be to make certification elections an automatic, regular occurrence for all workers. As outlined by Samuel Estreicher,

“Every two years (unless the union achieved a collective bargaining agreement, in which case every three years) the employees in the unit, after an initial minimal required showing of interest [e.g., 5-10% of workers], would have an opportunity to vote in a secret ballot whether they wish to continue the union’s representation, select another organization, or have no union representation at all. Petitioning labor organizations and employers would be required to share certain specified information, in electronic form, with the voting employees.” 

Before this is dismissed as crazy, note that Republican legislatures in Wisconsin and Iowa have enacted requirements for regular recertification elections. If unionized workplaces should have to recertify in order to confirm that a majority of workers still support unionization, then the same logic should apply to nonunion workplaces to regularly determine what the majority support. The democratic process shouldn’t choose sides.

Indeed, having regular elections would bring certification elections into line with political elections, and would not only perhaps make it easier to gain certification but also to get rid of an ineffective or undesirable union. In other words, it might be better to have an “easy in, easy out” system for determining union representation and allowing for experimentation with different forms of collective voice. A risk is that conflict over unionization becomes a regular occurrence, but the hope would be that by regularizing this and reducing the stakes, the worst of the current process could be avoided. Moreover, if unionization became more widespread, this could reduce managerial opposition by weakening the perception of unionization as a significant competitive disadvantage.

Circling back to the Biden plan, it also uniquely calls for the creation of “a cabinet-level working group that will solely focus on promoting union organizing and collective bargaining in the public and private sectors.” Intriguing…but I would advocate for a broader scope that examines collective voice, including but not limited to collective bargaining.