The Workplace Democracy Plan, Explained (Part 2)

By C.M. Lewis (@thehousered)

Last week, we published part one of a two-part analysis of Bernie Sanders’ “Workplace Democracy Plan.” The eighteen-point plan, released in mid-August, proposes a wide-ranging overhaul to American labor law that would change the face of work in America.

Here’s the final nine points of his plan, explained. We’re getting into some of the heftier parts of his plan, so settle in for some reading. Overall, the second half of Sanders’s plan continues to be a radical step forward. Most importantly it would strongly strengthen the positions of workers to wield power through collective action while making it harder for employers to suppress union activity. It would also ensure that all employees have protections that are sorely lacking. Where the plan falls down is in a half hearted attempt to respond to some of the centrist criticisms toward Medicare for All. 

10. Ban the permanent replacement of striking workers. 

The strike is the most powerful weapon that workers can wield. But in the United States, private sector workers are restricted in how they can use strikes.

Under American labor law, private sector industrial action distinguishes between two types of strikes: economic strikes (strikes primarily concerned with obtaining concessions on wages, benefits, and conditions of employment), and unfair labor practice strikes (strikes precipitated by a formal charge of a prohibited unfair labor practice, or ULP, committed by an employer).

Since the 1964 Hot Shoppes, Inc. case, the National Labor Relations Board (NLRB) has held that employers can, in instances of economic strikes, permanently replace workers on strike: a standard slightly changed in a 2016 ruling, albeit one unlikely to survive a challenge under the current NLRB. That means scabs brought in temporarily to break the strike can stay on permanently—potentially putting, committed union members out of work once the strike is over. In other words, economic strikes are an enormous gamble and employers often take ruthless action to crush them, especially when they think that the White House is on their side (which it usually is).

That’s why most unions engage in ULP strikes—strikes (like the recent AT&T strike in the Southeast) precipitated by filing a ULP charge with the NLRB. In a ULP strike, striking workers can’t be permanently replaced—but there needs to be a documented ULP filed first.  

Sanders proposes to codify into law that no matter the type of strike, striking workers can’t be permanently replaced, period. This would be a major shift in the balance of power, emboldening unions to more liberally utilize strike threats while bargaining.

11. Protect the Pensions of Workers

Multiemployer pension plans are in crisis.

As detailed by the AARP, multiemployer pension plans are pensions funded by union members employed at multiple employers. These pension plans, some of which were pervasively underfunded or tied to high-risk investments, suffered greatly in the wake of the 2008 crash (and declining union membership contributes to the funding problems).

The solution offered by Congress was the same as the “solutions” enacted in state pension plans across the country: cut the level of benefits, inclusive of—in this case—current retirees.

Sanders proposes to make multiemployer pensions solvent through taxing the rich and providing government funds to stabilize pension funds. 

12. Stop corporations from forcing workers to attend mandatory anti-union meetings as a condition of continued employment.

This might sound familiar, especially if you’ve worked for union “averse” retailers (or if you’ve watched Superstore).

Mandatory anti-union meetings take a few forms. Most familiar is the standard anti-union video, often integrated into new employee orientations or played every now and then to keep the workers in line. A number of corporations—ranging from big box retailers to Amazon—use these liberally to attempt to “inoculate” workers against thoughts of higher wages, benefits, and the dignity and collective power that comes from organizing on the job.

Less familiar is something called a “captive audience” meeting. Usually these take place only when there’s fear of an active organizing campaign, and they’re a mainstay of “union avoidance” campaigns waged by employers in between workers filing for an election, and the election itself. In captive audience meetings, employers are brought in—en masse, in groups, or even individually—to meet with supervisors, often with corporate lawyers present. In the case of the recent United Auto Workers’ campaign to organize Volkswagen in Chattanooga, Tennessee, the Governor of Tennessee was brought in to lead a captive audience meeting to scare workers that their jobs were threatened by unionization.

In these meetings, employers can’t directly threaten employees, direct them how to vote, ask how they’re voting, or promise them outcomes if they do or don’t vote for a union. What they can do is insinuate, propose “what if” scenarios, cherry pick facts and information, and do everything short of saying “you’ll lose your job.” Nice factory you have here—it’d be a shame to lose it to offshoring.

Sanders proposes to sharply curtail the use of “captive audience” meetings through prohibiting employers from making them mandatory. 

13. Establish federal protections against the firing of workers for any reason other than “just cause.”

If enacted, it’s no exaggeration to say universal “just cause” would be one of the most consequential changes in the nature of work in American history.

The vast majority of American workers work under what’s termed “at will” employment. What that means in practical terms is that employers can fire their employees for any reason, or no reason at all—provided they’re not specifically restricted by law (usually laws against discrimination like the Civil Rights Act and the Americans with Disabilities Act).

For workers fired illegally for discriminatory reasons, there are two standard remedies: a complaint through the Equal Employment Opportunities Commission (EEOC), or independent civil action (usually an EEOC complaint can lead to civil action). Even those aren’t foolproof. Religious employers have even wider latitude; if you teach at a Catholic educational institution and are fired discriminatorily, it’s likely they’ll get away with it because of something called the “ministerial exception” (surprise: if you work for a religious employer they call it a “ministry,” at least as a legal defense).

 In summary, employers can pretty much fire workers for whatever reason—and even the scant laws that exist to protect workers from discrimination are flawed and riddled with loopholes.

 “Just cause” sets up a different standard of employment that prevails in many other countries (more on the standard measures of “just cause” here). In short, it means that employees can only be discharged for serious, work and performance related reasons, and that employers typically have to implement something called “progressive” discipline: the punitive action has to match the alleged infraction, and they can’t jump straight from a first “offense” to firing. It’s common in union contracts and is extended by statute in some specific cases (like School Code protections for teachers)—but even in the case of union contracts, it has to be bargained, and employers often demand “probationary periods” in union contracts where employees are still “at will.”

Moshe Marvit and Shaun Richman have argued persuasively for the necessity of universal just cause, and Sanders has taken up the challenge. If enacted, not only would it extend employment security to all workers in the United States, it would also embolden workers to organize on the job with less fear of retaliation from the boss.

14. Create a sectoral collective bargaining system with wage boards to set minimum standards across industries.

This one takes some explaining, and we’ll try to keep it simple.

The United States is (mostly) unusual in the world because working conditions are bargained at the workplace level. In the United States, contracts are reached between workers and management in a specific workplace; unions are certified as the “bargaining agent” for specific “bargaining units” and contracts are specific to those bargaining units. 

To use a hypothetical example in healthcare: there are two hospitals, operated by University of Pittsburgh Medical Center (UPMC). One is in Pittsburgh, one is in Altoona. If workers at the Pittsburgh UPMC facility unionize, it doesn’t mean that workers at the Altoona hospital are unionized too. Likewise, two similar unionized hospitals in the same city, represented by the same union, with similar operations but operated by different corporations, will be covered by two different contracts.

Of course, unions are smart. Starting in the 1950s, unions began to engage in something called “pattern bargaining”—targeting a specific employer within a sector, leveraging concessions, and then using that agreement as the standard for bargaining with all other employers in the same sector. Pioneered by the United Auto Workers’, labor leaders like Jane McAlevey and unions like UNITE-HERE have leveraged it more recently to great success.

This is all in contrast to the model of labor relations that prevails in most other nations: “sectoral” bargaining. Unions bargain with employer federations—often with government involvement—to set industry-wide standards for employment conditions. One of the strongest examples of this is German industrial relations; last year, IG Metall (the largest industrial union in Europe) bargained a twenty-eight hour work week and 4.3% wage increase across the metals and electrical industries in the German state of Baden-Württemberg.

Under the Sanders’ proposal, the United States would move toward limited sector-wide bargaining in the private sector through the creation of “wage boards,” where employers would bargain with worker unions to set wage standards across the sector. Additionally, all levels of government from the municipal on up would have the right to set their own minimum wage, banning “pre-emption” laws where states restrict the right of local government to set their own minimum wage. His call for sectoral bargaining is restricted to wage boards, and would—it seems—supplement rather than replace the current system.

15. Guarantee the right to unionize for all workers.

When the National Labor Relations Act was passed in 1935, specific categories of workers—such as domestic and agricultural workers—were exempted from the right to unionize. There’s one overwhelming reason: work in those industries was (and still is) overwhelmingly done by workers of color, and Roosevelt wanted to appease segregationists.

Some states have acted to close this loophole, particularly for farmworkers—but they’re a minority, meaning that in most states farm and domestic workers lack the right to form a union and bargain collectively. Sanders has expanded on his Workplace Democracy Act (which was silent on this matter) to propose closing the loopholes exempting domestic and agricultural workers from union rights.

16. Allow for secondary boycotts.

Prior to the 1947 passage of the anti-union Taft-Hartley Act, unions could pressure suppliers and other businesses—usually through pickets and boycotts—working with a target engaged in an industrial dispute. If Tyson is a major supplier of a fast food business that goes on strike, unions could pressure the business by urging a boycott of Tyson.

The Sanders proposal would repeal the sections of Taft-Hartley prohibiting secondary boycotts, letting unions once again use them as a tactic.

 17.  Expand and update the persuader rule.

There are rules and guidelines for what employers can and can’t say to employees thinking about forming a union. 

The standard restrictions are summarized in the acronym “TIPS”: employers can’t threaten, intimidate, promise, or surveil. Of course, that still leaves a lot of room to maneuver, and a literal multibillion dollar industry—led by legal megafirms like Proskaeur Rose and Ballard Spahr—exists to bend, break, and get around those rules, helping employers keep unions out. The billy clubs and rifles wielded by the Pinkertons have been replaced by leather briefcases and tailored suits.

To address this, in 2016 the NLRB proposed a “persuader rule” requiring employers to disclose the advice received by their union busters. Unsurprisingly, it was promptly repealed by the Trump NLRB. 

Sanders wants to restore the rule, and to go one further: his proposal mandates that employers disclose who they’re retaining, the methods they’re using to reach workers, and how much they’re spending. Employers spend exorbitant sums to keep out unions—and Sanders wants employees to know exactly how much avoiding a union is worth to the boss.

18. A fair transition to Medicare for All.

One of the attacks wielded against Sanders from centrist Democrats—notably, Tim Ryan and Joe Biden—has been the impact of single-payer on union-negotiated healthcare. Unfortunately, AFL-CIO President Richard Trumka has given them cover for the attack.

Sanders has consistently answered—correctly—that employers pit healthcare and wages against one another, forcing unionized workers to choose between wage increases and keeping their healthcare costs under control. Even under union negotiated healthcare plans, copays, premium contributions, and deductibles are routine. 

Single-payer would eliminate those out-of-pocket costs, resulting in savings for most union workers. Moreover, taking healthcare off the table as a constantly-rising employer cost would give workers more leverage to bargain money into wage increases.

Regardless, Sanders is proposing that all union contracts would conduct “special” bargaining, and employers would be required to shift some of their healthcare cost savings into wage increases. Bargaining would be supervised by the NLRB to ensure compliance. In effect, it’s a proposal to ensure that as Medicare for All reduces healthcare costs for employers that some of that gain is given to workers through wage increases.

Unfortunately, it’s the weakest part of the Sanders Workplace Democracy Plan—no doubt because it exists largely to answer criticism from some union leaders, and as a shield against disingenuous attacks from corporate Democrats. An enormous number of private sector union contracts exist across the country, and the NLRB isn’t equipped or staffed to supervise bargaining on all of them simultaneously (nor is that their role). Moreover, public  sector unions wouldn’t be covered by the proposal, since state-level agencies (not the NLRB) have jurisdiction over public sector labor relations. 

It’s also unclear whether it’s even possible to federally mandate that contract negotiations are opened and limited only to specific subjects of bargaining, and with specific mandates on the ground rules and outcomes of bargaining. Even if the federal government can unilaterally open up collective bargaining agreements without the consent of the parties, it’s a potentially concerning precedent to set.

The strong part of this section is a suggestion that union-operated healthcare services (like clinics, etc.) will be integrated in the single-payer network.  These clinics will continue to operate as normal but, how their services are paid for will change. It’s a fairly straightforward suggestion, and makes sense.

In sum, Sanders is correct that union workers would benefit enormously from Medicare for All—and labor leaders that oppose it are doing so for nakedly political reasons, and against the best interests of union workers. But his proposal for a transition is unnecessary (except as a defense against disingenuous attacks), and raises more questions than it answers.

Summary

The Sanders plan isn’t perfect. There are points that need more detail. It’s strongest when it’s creating ambitious policy—and weak when, as in the Medicare for All point, it’s playing defense for political reasons.

But it’s the boldest vision for pro-worker labor policy released by a major presidential candidate since the New Deal: one that outstrips any recent proposal in recent memory, and which sets a high bar for presidential contenders to match. American workers and union leaders should take it seriously, and demand that Presidential candidates match it—or exceed it.

And, of course—as Presidential candidates lay out their labor platforms, we’ll provide a guide to what they mean and how they stack up against one another.


C.M. Lewis (@thehousered) is a staff union representative for the Pennsylvania State Education Association and a member of the Strikewave editorial team. Sign up for Strikewave here.

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