Is the NLRA Racist?

One way to think more deeply about issues of race in work and labor relations is to ask whether the National Labor Relations Act (NLRA) is racist. The NLRA was enacted in 1935 as part of the New Deal, and protects private sector workers’ rights to organize into labor unions and collectively bargain.

At its core, the NLRA is about workers, full stop, and the language of the NLRA is colorblind. Moreover, many Black workers have benefited from unionization. For at least the past 20 years, Black workers have had the highest unionization rates compared to Asian, Hispanic, and white workers, and for most of the postwar period, the positive effect of labor unions on household income has been stronger for people of color. Black workers also benefit from grievance procedures, standardized hiring and firing practices, and other policies that can help mitigate discriminatory practices. The AFL-CIO now explicitly champions racial justice.  

But it hasn’t always been this way. Like many other aspects of U.S. society, the labor movement has a mixed historical record with respect to race and discrimination. Historically, some unions advocated for inclusion while others were racist. Railroad and craft unions in the first decades of the 20^th century were particularly known for their racist, anti-Black stances, and in some cases there were still separate, segregated Black and white locals and restrictive membership policies in the 1960s.

White union leaders and members are ultimately responsible for this racist behavior, but there are several ways in which the NLRA systematically disadvantages Black workers relative to white workers. The NLRA allows unions to be the workers’ exclusive representative when a majority of workers favor this. So a majority of workers can significantly influence terms and conditions of employees for the rest. But in spite of NAACP lobbying, the NLRA did not contain an anti-discrimination requirement for unions, and the judicially-constructed duty of fair representation was only a weak substitute in the face of prejudiced union leaders and co-workers. The NLRA, therefore, gave unions significant power over workers—powers that were even stronger for the first decade in which closed shops (allowing unions to control access to jobs) were legal—but fell short of equally empowering Black workers. Indeed, in the 1940s and 1950s, the agency established by the NLRA to enforce it—the National Labor Relations Board (NLRB)—repeatedly allowed segregated locals and trivialized racist speech by unions during organizing drives. The courts were no better. For example, in 1959 the Supreme Court refused to hear an appeal of Oliphant v. Brotherhood of Locomotive Firemen & Enginemen in which the U.S. Court of Appeals allowed the union to continue banning Black workers from becoming members. It was not until the passage of the Civil Rights Act in 1964 that such discriminatory practices would be rendered illegal.

The lack of an explicit anti-discrimination provision in the NLRA is often attributed to the need for Senator Wagner and other early NLRA supporters to have the support of southern Democrats in Congress in order to get the NLRA passed. Unions were not very strong in the south, so as long as Jim Crow laws and norms that institutionalized and maintained white superiority were not threatened, then southern Democrats would support the NLRA. The preservation of Jim Crow in the south also led to another feature of the NLRA that significantly harmed Black workers—the exclusion of domestic and agricultural workers from the NLRA’s protections. These were the largest categories of employment for Black workers in the south, and their exclusion perpetuated the continued subjugation of them. 

The intentional perpetuation of racial inequality during the 1930s and 1940s becomes even more apparent when looking beyond the NLRA to other federal policies of that era. The Fair Labor Standards Act (minimum wages and overtime premiums), the Social Security Act, unemployment insurance, the GI Bill, and other programs either excluded agricultural and domestic workers or created programs that were ultimately administered locally, thus allowing for subtle and not-so-subtle discrimination in the application of these programs. As argued by Ira Katznelson, “by not including the occupations in which African Americans worked, and by organizing racist patterns of administration, New Deal policies for Social Security, social welfare, and labor market programs restricted Black prospects while providing positive economic reinforcement for the great majority of white citizens” which widened economic disparity; or as he captures with the title of his book: this was when affirmative action was white. Federal housing policy resulted in the same pattern of discrimination as the Federal Housing Administration used biased decisions about mortgages to segregate Black families in urban areas while subsidizing white home ownership in the suburbs, which widened racial wealth inequality.

Returning to the NLRA specifically, after the end of World War II, unionization of southern workers represented a greater threat than 10 years earlier, so to maintain the south’s racial order, southern Democrats in Congress changed course and teamed with Republicans to pass the Taft-Hartley amendments to the NLRA. The changes to the NLRA made it more difficult to organize workers and contributed to the failure of the labor movement’s Operation Dixie southern organizing campaign. The Taft-Hartley Act also allowed states to pass right-to-work laws prohibiting unions from charging workers dues and representation fees. Right-to-work laws have racist origins in that they were created to try to prevent the creation of solidarity among white and Black workers in the south. Indeed, a vocal supporter of right-to-work laws in the 1940s allegedly inflamed opposition to multiracial labor unions by saying that if left unchecked, “white women and white men will be forced into organizations with Black African apes whom they will have to call ‘brother’ or lose their jobs.”  

There are various ways, then, in which the NLRA—along with other New Deal and immediate postwar legislation—institutionalized and magnified existing power differences between Black workers and white workers in order to perpetuate patterns of inequality based on race. In other words, aspects of the NLRA contributed to institutional racism. In fact, the overrepresentation of people of color in the lowest-paid agricultural, domestic, and service occupations continues to this day. At the same time, the overall picture is complex. Many Black workers have benefited from the NLRA’s protections of unionization, and many whites have been excluded because they, too, work in domestic and agricultural occupations. Many provisions of the NLRA or subsequent legal interpretations have been shaped by ideologies pertaining to neoliberalism or the democratization of work rather than racial hierarchies. And workers of all races and ethnicities could benefit from labor law reform that strengthens the NLRA and other labor policies. But maybe not equally. And therein lies the issue—work isn’t always (only) about race, but we certainly shouldn’t be blind to the complicated ways in which race and labor intersect.

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.

(Incomplete) Reflections on the Sanders and Warren Labor Plans

Bernie Sanders ("The Workplace Democracy Plan") and Elizabeth Warren ("Empowering American Workers and Raising Wages") have now both released labor plans as part of their presidential election campaigns. If enacted, each ambitious plan would bring the deepest and most far-ranging reforms to labor law since…well, ever. Both plans include provisions for union certification based on card checks followed by first contract arbitration when needed, reducing employer interference in union drives, banning permanent strike replacements and right-to-work laws, and extending protections for unionization to public sector workers, independent contractors, graduate students, and others who have been excluded. These are all sorely needed reforms, and it's great to see labor law getting serious attention.

Both plans also call for sector bargaining in which wages and other basic employment standards would be established at an industry level, as is often the case in Europe. But European countries are small, have weaker links between being a union member and having union representation (a link that is at the heart of the U.S. system), and have stronger employer associations, traditions of social dialog, and other supporting institutions. Technically, sector bargaining isn’t prohibited under existing U.S. labor law (and has occurred, as in the steel industry in the 1950s), but it requires everyone to be unionized and employers to agree to it. So to make this a reality, policy change is necessary. It’s very difficult to see how this would be imported to the United States on a large scale. Philosophically, will workers see this as a step towards workplace democracy when unions they haven’t supported are speaking for them? Practically, how will sectors be determined along with representatives of labor and business in each? Legally, how will sector bargaining and agreements be enforced? I’m all for learning from international experience and importing good ideas, but I think this is a stretch in this particular case. In fact, Germany represents a classic case of strong sector bargaining, but it recently established a minimum wage because of the decline of sector bargaining. So while I understand the rationale for raising wages and standards on a broad rather than piecemeal basis, and for taking wages out of competition, I'm skeptical that sector bargaining can be a U.S. reality even if there was the political will. Maybe I'm not alone--while Sanders plan actually calls for “a sectoral collective bargaining system with wage boards”—so in other words, wage boards which are more akin to reforming minimum wages than actual sector bargaining.

Both plans also seem to have an underlying mindset that workers are ripe for unionization, but are prevented from doing so either because they are excluded from protections (e.g., gig workers) or the election process favors employers (e.g., greater access to employers, minimal penalties for firing union supporters). This is undoubtedly true. Research consistently shows that many nonunion workers want a union—maybe as high as 50 percent. But only partly true: this same research also shows that others want more voice in other forms. As such, both plans seem to miss opportunities to promote localized, participatory forms of worker voice. Specific possibilities here include mandatory safety and health committees and works councils. As workers experience voice directly in their own workplace, they can see its benefits, and push for stronger forms of involvement and representation. This might even lead to majority support for a traditional union with full-fledged bargaining rights. In this way, others have labeled this “training wheels voice.” I would add training wheels voice to the Sanders and Warren plans.

Stepping away from the areas connected to labor relations and collective bargaining, the Warren plan goes much further than the Sanders plan. For example, the Warren plan would prohibit non-compete clauses and “no-poach” agreements which limit worker mobility and thereby suppress wages and benefits, and would also ban forced arbitration agreements. The Warren plan also addresses worker scheduling, discrimination, and labor policy enforcement issues, and also provides for worker representative on corporate boards of directors. There are sound bases for all of these proposals. But one area where the Sanders plan goes beyond the Warren plan is in ending at-will employment by prohibiting workers from being fired when there isn’t just cause.

Ten years ago in our book Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus, Steve Befort and I advocated for an “American Good Cause Termination Act” in which employees can only be fired if there is “good cause” for such an action. A just cause standard is nearly universal in U.S. union contracts and CEO contracts (and has also been in effect in Montana since 1987). Decades worth of decisions by labor arbitrators applying this standard have created a reasonably coherent framework for determining if an employer has good cause to discharge an employee. This proposed universal good cause standard does not prevent employers from terminating employees because of substandard performance or changes in the direction of the business. To balance employer and employee interests, we propose that a U.S. good cause standard be remedied by a maximum of one year’s back pay, except in cases of unlawful discrimination in which case double or treble damage awards would be allowed. It is difficult to argue that U.S. employers would be at a competitive disadvantage in the global economy because the United States virtually stands alone in failing to a provide general statutory protection against unjust terminations.

The benefits of an American Good Cause Termination Act would be widespread. Social justice (equity) is served by outlawing both bad and irrelevant reasons for dismissing employees. Other employment policies would also be enhanced as workers would have greater protections for exercising their rights, such as by filing a valid workers’ compensation claim or taking a family or medical leave. Also, employee voice would be facilitated because employee free speech, autonomy, and unionization would be protected as terminations in retaliation for pursuing these activities would not possess good cause unless they interfered with job performance. Efficiency could even be promoted by reducing the regulatory burdens of the current system--including multiple forums and an expensive litigious approach--with a streamlined system that is quicker and cheaper. So this is an omission from the Warren plan that could help support the broader objectives of that plan, and I think it merits serious consideration.

Among many other things that Steve and I proposed (some of which overlap with the Sanders and/or Warren plans), I will highlight just one that is missing from both which could be the easiest of all to implement: mandatory disclosure of employment terms and conditions. Workers simultaneously over-estimate the extent to which they can only be fired for a good reason and under-appreciate the availability of other benefits (e.g., family leave) or protections (e.g., NLRA protections of collective voice). The employment relationship would work better if employees better understood their actual terms and conditions of employment. As Richard Edwards noted many years ago, lenders are required to disclose accurate interest rates for loans and manufacturers must reveal the ingredients of food products. Given the importance of employment to individuals, disclosure of employment terms also should be required. This should include wage and benefit information, leave policies, dismissal policies, and descriptions of their rights under the law. At-will employees, for example, should be told that they can be dismissed for any reason. Subject to relevant laws, employers would still be free to unilaterally determine and change these policies, but those changes should be transparent to employees.

This proposal for mandatory disclosure of the terms and conditions of employment has international precedents. China requires written contracts for employees that specify wages and benefits, the length of the working day, vacation policies, disciplinary policies, and methods for changing, renewing, or terminating the contract. Closer to our proposal are European Union requirements that employers must provide written notices to employees detailing key elements, including wage payments, leave policies, and the expected duration of employment for temporary employees. These requirements date back to 1991, and were just renewed in 2019. Who can be opposed to greater accuracy and transparency?

In closing, as someone who advocated for broad-scale policy reform 10 years ago, it’s great to see such comprehensive plans being proposed and debated. Of course the path to actual enactment is a lengthy and uncertain one. But ideas are important for highlighting the deficiencies and imbalances in the current system, and for starting to shape new norms and expectations that can one day lead to substantive reform and ultimately, employment with a human face.

Should Work Be More Like BDSM Role-Play?

“You can’t say ‘orange’ to your boss.” Wait a minute, what?!? Is “orange” some kind of offensive slang I’m not aware of? I don’t think so…so taken in isolation, this sentence from David Graeber’s book Bullshit Jobs (p. 282) seems odd. But it’s actually quite important. “Orange” is being used here as an example of a safe word analogous to what someone would have in erotic role-playing involving bondage, discipline, dominance and submission, and sadomasochism (BDSM). Graeber is right—you don’t have a safe word at work, but you should.

It’s easy to envision a sadistic boss who enjoys humiliating or inflicting pain on others. We might also joke that only a masochist could put up with certain bosses or jobs that look painful to us. But at a more fundamental level, many, if not all, jobs can be seen as having a (non-sexual) sadomasochistic nature because of the dependency nature of the employment relationship. In her book Sadomasochism in Everyday Life, Lynn Chancer argues that “many workers, like the masochist, find themselves subject to chains of command that induce extreme dependency and a tendency toward the experience of oneself as inferior relative to an allegedly superior authority” (p. 106). And for bosses, “perpetually insecure himself or herself (why else would the capitalist need to figuratively bind and restrict the freedom of the worker?), no level of control really satisfies” (p. 109) so there is a sadistic-like (in psychological terms) continual push for dominance. Chancer further argues that the feeling of power is more satisfying or authentic when the subordinate exhibits some resistance or independence (hence bosses want employees with initiative), but not so much as to threaten the hierarchy.

So paid work in a hierarchical system with economic, legal, and other inequalities has important elements of a sadomasochistic relationship. But (non-pathological) BDSM role-playing has other critical features (Elena Faccio et al., Forbidden Games: The Construction of Sexualityand Sexual Pleasure by BDSM ‘Players,’ Culture, Health & Sexuality, 2014). Specifically, BDSM players design the rules of the game, are aware of their roles, and can withdraw their consent at any time by the use of an agreed-upon safe word. As Graeber notes, “This is precisely what’s lacking in real-life sadomasochistic situations. You can’t say “orange” to your boss. Supervisors never work out in advance in what ways employees can and cannot be chewed out for different sorts of infractions, and if an employee is…being reprimanded or otherwise humiliated, she knows there is nothing she can say to make it stop” (pp. 121-2).

You might say, but a worker can say “I quit.” But this is only a safe word if a worker can easily find similar work and pay elsewhere—an assumption frequent in mainstream economic (neoliberal) thought and associated public policies, but often not a reality for many workers.

Graeber argues that a universal basic income would turn “I quit” into a safe word because at least some level of income would not be dependent on a particular job. I would add that there are other things that could also be done to make work more like BDSM role play that fulfills the BDSM “safe, sane and consensual” (SSC) code:

·       Require employers to provide a written statement to all employees disclosing all terms and conditions of employment, including being able to be fired at any time for almost any reason. This might not change the actual terms and conditions of employment, but it would at least give workers more clarity about what they are signing up for.   

·       Enact statutory protections for employee free speech in which private and public employers are not allowed to violate an employee's freedom of expression either in or out of the workplace. Again, this might not change the actual terms and conditions of employment, but it could give workers more power to articulate their desires and object to certain things.

·       Grant workers the right to meet with their employer to request a flexible work schedule, a certain number of hours, or other scheduling items. This could help workers be part of designing at least some of the “rules of the game.”   

·       As Steve Befort and I have argued in Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus, the United States should enact an American Good Cause Termination Act in which employees can only be fired if there is “good cause” for such an action. A just cause standard is nearly universal in U.S. union contracts, and in CEO contracts. By outlawing both bad and irrelevant reasons for dismissing employees, this could give workers greater power to object to onerous conditions without having to quit, and could also better protect them if they wanted to form a union to improve their power.

None of these would necessarily fully solve the dependency issues inherent in the modern employment relationship. That is, work for many might be hopelessly sadomasochistic. Which means that it's important for us to think about ways to create a better balance to promote what I've called "employment with a human face." Or as provocatively put forth by Graeber (p. 283): “What would be the equivalent of saying “orange” to one’s boss? Or to an insufferable bureaucrat, obnoxious academic advisor, or abusive boyfriend? How do we create only games that we actually feel like playing, because we can opt out at any time?”

Perhaps surprisingly, then, making the employment relationship more like (non-pathological) BDSM role-playing with its SSC principles would be a good thing. You should be able to say “orange” to your boss. And many other things, too.

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Note: ICYMI, in last month's blog post I wrote about some of my other reactions to Graeber’s Bullshit Jobs. 

Paid Family Leave: The Lack of a National Policy Isn’t the Only Barrier

Paid family leave is back in the U.S. news again, this time with a proposal by Senator Mario Rubio called the Economic Security for New Parents Act, which would provide paid leave to parents who agree to delay taking social security benefits by an amount to offset the paid leave. I’m not going to get into the merits and controversies of this approach (for that, see this by the proposal’s originator, Kristin Shapiro, and this piece).

Rather, my key point is that simply offering a family leave policy does not automatically alleviate workers’ concerns about income loss or other potential negative consequences of taking a leave. So while new ideas about universal policies are important—and actually enacting policies would be even better!—we also need to better understand the factors that prevent workers from taking a leave, and ways to reduce these barriers.

So to think about the barriers to a leave, Tae-Youn Park (Vanderbilt), Eun-Suk Lee (KAIST), and I develop a four-part framework consisting of all A’s: availability, awareness, affordability, and assurance. These four elements reflect the key considerations for whether any worker takes many kinds of leave from work: 1) the policy needs to be available, 2) if available, the worker needs to be aware of it, 3) even if aware of an existing policy, the worker needs to believe he or she can afford a leave, and 4) even if affordable, the worker needs to have assurances against negative consequences that might result from taking a leave (e.g., a promotion going to someone else). We think this framework can help guide research into leave-taking barriers.

In a paper titled “What Do Unions Do for Mothers? Paid Maternity Leave Use and the Multifaceted Roles of Labor Unions,” the three of us focus specifically on the potential impact of labor unions. For starters, based on existing research on what unions do, it’s clear that unions have the potential to positively affect all four of these key steps (and not only in the United States). They can bargain for (better) leave policies; help spread awareness through newsletters, one-to-one interactions, and the like; make leaves more affordable through higher wages and better insurance coverage; and combat reprisals through bargaining, grievance procedures, and other means. But what happens in practice?

To find out, we turned to the National Longitudinal Survey of Youth 1997 (NLSY97) which, importantly, is a nationally-representative sample. Due to some data peculiarities, we are only able to analyze women taking paid maternity leave, but future analyses of paternity leave taking would also be valuable. Our final data set has 27,472 observations from 4,108 female workers across a 15-year period. Ultimately we find that union-represented workers are at least 17 percent more likely to use paid maternity leave than comparable nonunion workers, and that unions facilitate this leave-taking through the availability, awareness, and affordability channels. We also find that mothers who take a paid maternity leave experience a post-leave penalty—specifically, their wage growth is slower when compared to those who did not take a leave. Surprisingly, we did not find that labor unions lessen this penalty, which would be one aspect of the assurance dimension.

At one level, this research is about what unions do with respect to the important issue of helping new parents take the amount of leave they deserve after a birth or adoption. In looking at the aggregate picture, they appear to be helping in some ways, with perhaps room for expanding their activities. What happens on a case-by-case basis, we cannot observe. But at a higher level, this research is about continuing to deepen our understanding of the barriers to parental leave taking, which can help with policy design when (hopefully!) a policy is (finally!) enacted in the United States.

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Source: Tae-Youn Park, Eun-Suk Lee, and John W. Budd (forthcoming) "What Do Unions Do for Mothers? Paid Maternity Leave Use and the Multifaceted Roles of Labor Unions," ILR Review (https://doi.org/10.1177/0019793918820032).
Click here to read the full paper.

Minnesota Legislature: Respect U of M Contingent Faculty By Letting Them Decide Whether or Not to Unionize

Whether a group of employees wants to form a union to represent them in collective bargaining is a decision that those employees should be entitled to make. Unfortunately, contingent faculty (non-tenure-track instructors, lecturers, and teaching specialists) at the University of Minnesota will likely not get to make that decision themselves. Rather, the Minnesota State Legislature effectively prevented them from being able to make this decision when it enacted an unnecessary provision in state law over 35 years ago. In the wake of a state appeals court ruling earlier this month upholding this strange legislative provision, it’s time for the legislature to correct its earlier mistake and repeal this provision.

Perhaps some background is needed. When some employees want to form a union, an appropriate bargaining unit needs to be defined in order to specify exactly what positions would be represented by a union if an organizing drive is successful. Standard practice is for the employees or their desired representative (a specific labor union) to initially propose this definition. If an employer objects and prefers a broader or narrower definition, then a neutral, expert governmental agency investigates and determines the exact definition of the appropriate bargaining unit based on input and evidence. This is exactly what happens in the U.S. private sector (with the National Labor Relations Board empowered by federal law to handle unit determination questions based on its judgement of which employees share a “community of interest”), and, as far as I can tell, in almost all public sector jurisdictions in the United States (for example, see South Dakota's Public Employment Labor Relations Act section 3-18-4 or Iowa's Public Employment Relations Act section 20.13).

When the Minnesota Public Employment Labor Relations Act (PELRA) was first enacted in 1971, this standard practice was adopted by empowering the Bureau of Mediation Services (BMS) to determine appropriate bargaining units when a public sector employer objects to the workers’ proposed definition. For state agencies, the law contained a proviso that an appropriate bargaining unit should consist of “all the employees under the same appointing Authority” unless “professional, geographical or other considerations affecting employment relations clearly require” some other appropriate unit (section 179.74). As is common elsewhere, there were no special provisions for the University of Minnesota, school districts, or others covered by PELRA.

In 1980, however, the Minnesota State Legislature deviated from common practice by changing PELRA to specify 16 (now 17) state bargaining units and 12 (now 13) University of Minnesota bargaining units (see Minnesota Session Laws 1980 c 617 s 40) (in later years, court units were also specified). This has long puzzled me, especially because it runs contrary to standard practice, and it is likely rooted in a desire to impose operational stability or convenience by limiting the number of bargaining units that a state agency or the University of Minnesota has to deal with. But the effect is to impose an outdated occupational structure on contemporary realities and to deny employees their rights to form unions and engage in collective bargaining. This is clearly not the way to balance efficiency, equity, and voice—a principle that I have long advocated as the key objective of work-related public policy (also see this, and this).

Getting back to the plight of contingent faculty at the University of Minnesota, the way the process should have worked was for BMS to have had the discretion to use its expert judgement decide whether it was best to include contingent faculty with tenure-track faculty, or to define two separate units, based on input, hearings, and the facts of this particular situation at this particular time. But with the unit definitions pre-specified by state law, contingent faculty are not allowed to have their own unit, and the state appeals court ruled that they are not part of the tenure-track unit. So this ruling means that contingent faculty are included in a catch-all unit of all professional and administrative employees at the University of Minnesota. The diversity of this unit is hard to grasp. By one count, there are over 300 job titles in it, presumably many more than in 1980. By my reckoning, this will kill the contingent faculty union drive because  in order to unionize they'll need to get a majority of accountants, cartographers, athletic trainers, and numerous others to all vote for a single union, which is close to impossible. It strains credulity to think that this diversity (a) represents a community of interest for these employee groups and (b) serves anyone’s interests except the administration of the University of Minnesota because it makes unionization almost impossible (which might explain why the administration spent 18 months trying to get this ruling).  

The processes of labor relations work best when they are allowed to be dynamic and to adapt to changing situations by those directly involved. Collective bargaining has proven to be adaptable to many industries and occupations, and can handle economic, technological, and other changes when labor and management negotiators have the freedom to determine the scope and tenor of their negotiations. Similarly, determining appropriate bargaining units should be a flexible process in which a neutral, expert agency has the ability to adjust to changing trends based on input from the relevant parties, hearings, and evidence about the particular realities of each case. The world of work has changed significantly since 1980, and it’s silly to think that even a well-intentioned legislative intervention in 1980 is still the best approach today (exhibit A: the tremendous rise of contingent faculty at the University of Minnesota).

But there is an easy solution: simply repeal sections 179A.10 Subd. 2 (defining state units), 179A.101 Subd. 1 (defining court units), and 179A.11 Subd. 1 (defining University of Minnesota units). No language is needed to replace these unnecessary passages. In their absence, the authority to determine appropriate bargaining units on a case-by-case basis will revert back to BMS under sections 179A.04 Subd. 2 and 179A.09, and common sense practice found throughout the rest of the state and most of the country will be restored. And contingent faculty at the University of Minnesota, and perhaps other employee groups, too, will be able to act like the autonomous, dignified human beings that they are and make a decision whether to unionize or not.

Fawning for Favors: Tipping, Harassment, and the Need for One Minimum Wage

Controversies around tipping are seemingly everywhere these days. Tip jars seem to be proliferating at the same time as some restaurants are experimenting with banning tips. It’s always hard knowing who to tip and how much, and even more so when traveling abroad. Even the New York Times ran a story on “To Tip or Not to Tip Your Uber Driver” last year, and class action lawsuits prompted Uber to allow drivers to put up signs indicating that tips are appreciated.

But have you ever stopped to think about the origins of tipping and the continued implications for workers who primarily rely on tips for most of their income? As someone who studies work, I’m embarrassed to admit that I had not. Until last week. It was then that the University of Minnesota’s Center for Human Resources and Labor Studies sponsored a provocative presentation by Saru Jayaraman (co-founder and co-director of the Restaurant Opportunities Centers United, Director of the Food Labor Research Center at the University of California, Berkeley, and as the author of Behind the Kitchen Door, a fellow Cornell University Press author), a visit that was facilitated by the Minneapolis worker center CTUL.

The precise origins of tipping are unknown but a key early step seems to be the expectation dating back to at least the 17th century that visitors to private English homes give money to the host’s servants because of the extra work they’ve had to do. These aristocratic origins made tipping seem un-American and un-democratic in the 1800s and early 1900s as those who received tips were seen as servile rather than equals. Indeed, starting in 1909 several states outlawed tipping, though these laws didn’t survive for more than a decade.

What did survive were the racist and sexist foundations of beliefs on who was lowly enough to be exploited by tipping, such as African-American porters and immigrant maids. As nicely summarized by Kerry Segrave in Tipping: An American Social History of Gratuities,

Tipping seems to have started with the traveling aristocracy and spread downward class by class. With the rise of wage labor in industrial capitalism, the number and position of servants declined. That same rise in industrial capitalism brought with it an increase in commercial eating and drinking establishments, hotels, and mass transportation wherein those who received tips—maids, valets, waiters, and so forth were found in large numbers. As a greater proportion of people dined out, stayed in hotels, traveled on trains, and so on, they found themselves in tipping situations. All of those who received tips in the past were regarded as social inferiors at a time when such distinctions were felt to be normal and natural—God’s will. All the services for which tips were given—serving meals, carrying luggage, making beds, drawing drinks, and so forth—were regarded as menial labor. Those legacies of who was tipped for what services remain with us today. (p. 5)

In addition to views on servility, another important legacy of the history of tipping is an enduring debate over whether tips should be included in the calculation of earnings when determining if workers reach at least some level of minimum earnings, . For several decades, the side favoring the inclusion of tips has been winning. Since 1966, U.S. federal law allows a lower sub-minimum wage for tipped workers. Currently, the federal minimum wage for workers who earn at least $30 per month in tips is a measly $2.13. And this has not increased since 1991! If workers do not earn sufficient tips, the employer needs to pay at least the standard (non-tipped) minimum wage, but this entails significant record-keeping and there are high rates of non-compliance.

Many states have their own minimum wage laws that exceed federal standards, but only seven states, including Minnesota, require that tipped workers earn the same minimum wage as others.  An eighth state (Maine) recently enacted minimum wage changes that will lead to tipped workers earning the full minimum wage, though there is already a movement to undo this change. And Minneapolis is considering excluding tipped workers from a possible increase in a city minimum wage.

Which brings me back to Jayaraman’s provocative talk passionately arguing that this change being considered by Minneapolis would be a significant step backwards. You might be thinking, why is this a problem? Don’t tipped workers bring home more than the minimum wage? Well…not as much as you might think. Even including tips, tipped occupations are routinely among the lowest-paying jobs in the economy. And according to the Bureau of Labor Statistics, the median hourly earnings for waiters and waitresses in 2015 was $9.25 including tips; the 75th percentile was only $11.65.

But the more fundamental and eye-opening issue revealed by Jayaraman is the pervasive power differential created by a subminimum wage that leads to endemic sexual harassment. Most restaurant servers are women. And when their living depends on earning tips, they are exceptionally vulnerable to unwanted sexualization and sexual behavior because they are beholden to the customer. Indeed, the report "The Glass Floor: Sexual Harassment in the Restaurant Industry" by the Restaurant Opportunities Centers United revealed that 60 percent of women restaurant workers experience sexual harassment, and over 50 percent report that they experience harassment on at least a weekly basis. These rates of harassment are highest in states with the $2.13 minimum wage for tipped employees. As Jayaraman noted, this is a pretty disgusting way to introduce millions of young women to the working world. Consequently, the One Fair Wage campaign is pushing for an end to the subminimum wage for tipped workers—not an end to tipping, but an end to the subminimum wage. I recommend their video "The Time Is Now."

In 1896, Gunton’s Magazine wrote that rather than working for wages, tipped workers are “fawning for favors” and thus, tipping undermines the personal freedom and dignity of tipped workers (July, p. 16). More than 100 years later, this continues to be particularly true for tipped workers who lack the protections of the full minimum wage. 

Industrial Relations Sadly Chuckles on the Eve of the Election

It’s hard to find many people happy with the choices in tomorrow’s U.S. presidential election. Setting aside the troubling personal qualities that have been so apparent, it’s difficult not to be leery (at best) of Trump’s populism-at-its-worst and Clinton’s elitist-insider-insularity. If only both sides had paid more attention to industrial relations values and institutions over the past several decades rather than actively destroying them (Reagan, Thatcher, Walker, etc.) or just giving them lip service (Clinton, Obama, etc.), then maybe we wouldn’t be in this mess.

Industrial relations values embrace the sanctity of human dignity for all workers and their communities, and respect the needs of stakeholders with distinct interests and unequal power. This means that markets—whether labor, financial, or otherwise—don’t work for everyone, and the sanctity of free markets should be rejected. Industrial relations institutions therefore seek to bring a greater balance to the marketplace to help them work better for all by balancing efficiency, equity, and voice, often in collective rather than atomistic ways. The classic example is collective bargaining which (ideally) brings solidarity to the workforce and empowers them with a voice, but requires bargaining, often at a local level, in which a business’s needs can be addressed and balanced with workers’ interests.  

But for whatever set of complicated reasons, these industrial relations values and institutions have been weakened over the past several decades, and the academic field of industrial relations has shrunken as well. Instead, individualism, personal responsibility, and free market thinking dominate. Workers were assured that the benefits of free trade, deregulation, and increased financialization would trickle down and lift all boats, and that everyone would have the opportunity to work with purpose and meaning if they adopted the right mindset.

Instead, many have been left behind as illustrated by the sharp increase in inequality since the 1980s, and we live in polarized and polarizing times. Economic insecurity seems to frequently bring out the worst in people. And thus we have a distasteful form of populism that seeks to blame other workers and shut others out rather than building solidarity, respect, and inclusion. And we have anti-elitism which becomes anti-intellectualism and contempt towards science, education, and the arts as well as towards good government. Again, rather than bringing society together, fault lines emerge.

At a fundamental level, this disaffection is what industrial relations seeks to avoid. The construction and maintenance of institutions that provide checks and balances would have provided greater equity so people don’t feel left out, and greater voice so that people feel more on equal footing with the elites. But this would have required an embrace of industrial values around solidarity, inclusion, voice, pluralism, and compromise rather than individualism, self-interest, and free markets driven by insider elites.

Perhaps the consequences of the marginalization of industrial relations are now coming home to roost. On the Republican side of the aisle, the threat to the Republican establishment presented by the popularity of Trump has arisen out of disaffection with the Republican Party’s inability or unwillingness to replace the earlier industrial relations system with something that provides equity and voice instead of just individualism and free markets. On the Democratic side of the aisle, the skepticism towards another Washington insider is similarly rooted in policy making that has been top down rather than inclusive, and seemingly benefiting financial interests more than worker and community interests. Indeed, were the seeds of each's side demise planted, at least partly, by their own marginalization of industrial relations? 

Those who embrace the industrial relations ethos are probably thinking “I told you so.” But it’s a sad chuckle indeed.

Regulating Work: The Importance of the Geography of the Value Chain

Last week I was lucky to spend two days in beautiful Tuscany at an excellent ESRC-sponsored seminar on employment regulation hosted by faculty from Newcastle (England), Strathclyde (Scotland), and Monash (Australia) universities. As the stimulating presentations unfolded, a pattern emerged: in cases where the geography of employment regulation matched the geography of the value chain, regulation was effective; otherwise it was not.

As Nigel Haworth described, in the New Zealand fishing industry, the state is a robust actor in regulating working conditions on fishing vessels because particularly valuable species of fish are only found in New Zealand waters. So demand for those fish can only be filled by work that takes place there. In contrast, New Zealand recently weakened labor laws for workers in the movie industry because Warner Bros could have filmed “The Hobbit” somewhere else. Regional approaches to governing Italian workplaces match the vibrant pockets of Italian industrial districts (Luigi Burroni), whereas unions in Sierra Leone struggle to represent the large numbers of informal sector workers (John Stirling). And local and national attempts to create safer garment workplaces in Bangladesh and elsewhere have failed because of the ease of shifting production to new locations. So in this case, international standards are needed (Janice Bellace). 

 

Of course I’m not the first to think of these linkages.  In 1909, John R. Commons, the father of American industrial relations, published a once-famous article, “American Shoemakers, 1648-1895: A Sketch of Industrial Evolution.” Commons illustrated how workers’ efforts to improve their working conditions matched the evolution of the shoemaking production process and the nature of the “competitive menace.” When shoemakers were skilled craftsmen largely working as individuals, they formed guilds to prevent unskilled, substandard shoemakers from undermining their standards. When shoemaking became more of a job, workers formed unions, first on a local basis. And as the competitive menace expanded with the extension of the production and distributions systems, local unions joined to become national in scope, and they lobbied for protections in international markets.

Putting all of this together, we can think of the geography of the value chain as ranging from atomistic to global:

And then we must note that effective regulation typically occurs when the geography of the value chain is in the middle range (local and national systems)--this is the “sweet spot” of effective regulation and governance. For value chains that are more atomistic or more global, it is often difficult to establish and enforce labor standards and to give workers effective voice. 

If this analysis is right, it should be particularly alarming because trends in work point toward both ends of the geography of the value chain as increasingly important, not the middle. The effects of globalization on manufacturing over the past few decades is a well-known story, but services, too, are increasingly becoming globalized—for example, through outsourcing to lower cost areas, such as has happened with legal research and Catholic prayer fulfillment. At the opposite end of the spectrum, in addition to the millions in developing countries who work in informal sectors, there are many atomistic areas on the rise in developed countries, such as the self-employed, independent contractors, and household-based workers such as home health aides.

These are not new issues (see Commons), and they are not easy issues. But they are issues of critical importance. The geography of the value chain is dynamic in today’s organizations and economies. The regulation of work cannot continue to only hit the sweet spot of subnational and national value chains. We need to continue to figure out how to design strategies for governing work—whether privately crafted through unions and other institutions, or publicly crafted through government regulation—that match the dynamism of the geography of the value chain across its full spectrum. Only then will work really work for all. 

What is Work, and Why Does it Matter?

What is work? Is it just a burden to tolerate, or something more? Does it even matter what work is and how it is defined? Yes! Work-related public policies, laws, and judges' decisions are all implicitly shaped by an often unstated view of work. For example, if someone implicitly sees work as a freely-exchanged commodity, it is then difficult to see how workers who were fired for trying to organize a labor union should enjoy any special protections. In contrast, if someone sees work as an activity done by citizens entitled to rights of self-determination, then protections for concerted activity are likely seen as important, as was the case for the creators of the NLRA.

If work is primarily about making economic contributions that are rewarded by a paycheck, then the work done by spouses, parents, and other unpaid caregivers is not seen as "real work" and therefore not deemed worthy of workers' compensation coverage or direct entitlement to social security benefits. If work is viewed as a lousy activity endured solely to earn income, as in mainstream economics, then old-fashioned supervisors and new technologies that monitor workers to prevent shirking deserve legal backing. In these and numerous other ways, implicit understandings of work have powerful effects on all our individual worldviews and on our social institutions.

So defining work is important. But all too often work is implicitly seen in excessively narrow terms. Most fundamentally, work is seen as a method of survival. It would be silly to deny that we work to survive by caring for others, by producing food and other necessities, and by earning money to buy these necessities. But many perceptions of work haven't gone much further. Popular culture teems with examples of work as the daily grind, as in songs such as "Take this Job and Shove It," "Slave to the Wage," "Working for the Weekend," and "Workin' for a Livin.'" The academic equivalent is embraced in mainstream economic thought in which work, as noted above, is a lousy activity endured to earn income. Pleasure does not come from a job well done, but from the goods, services, and leisure you can buy from the money you earn. Mainstream economic thought also embraces the power of free competition. So if work is nothing special, then it, too, should be governed by same principles of free competition that are seen as desirable for other commodities. Work, then, is mostly about the price it commands in the marketplace.

But if you look at the scholarship on work across the social and behavioral sciences, or think more carefully about how work is experienced in our daily lives, then we can identify alternatives to seeing work as mostly about survival, money, and markets. Work can be a source of personal fulfillment and psychological well-being that provides more than extrinsic, monetary rewards. Work is a way to intimately care for others, and to serve others such as through volunteering, civic service, and military service. On an even deeper level, work can be a source of identity by helping individuals understand who they are and where they stand in the social structure. Work is also a source of freedom from the dictates of the natural world--a way to express creativity and build culture. And some believe that work is not simply a commodity traded in the marketplace, it is something done by human beings who therefore merit a set of workplace standards consistent with human dignity.

Whatever one's views on work, the definitions of work need to be explicitly identified and debated. Scholarship needs to do a better job of explicitly questioning how work is conceptualized, and of exploring the ramifications of embracing broader views of work that go beyond dismissing work as a curse, seeing it solely as a source of income, or treating it as a just another commodity. Advocates and policymakers similarly need to question the views of work they implicitly employ when advocating specific positions, designing policies, and making legal judgments. Definitions of work matter for how work is analyzed, legislated, adjudicated, and experienced, so these definitions are too important to be taken for granted. It is time to think more carefully about work.