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WORKER VOICE AND COLLECTIVE BARGAINING

Non-Union Worker Voice and Representation. American workers lack a meaningful voice in today’s workplace. Between 50 percent and 60 percent of workers have less influence than they want on critical workplaces issues beyond pay and benefits. Even managers are twice as likely to say their employees have too little influence rather than too much. But America’s one-size-fits-all approach undermines worker representation. Federal labor law offers no alternatives to labor unions whose politicking and adversarial approach appeals to few, whereas most workers report that they prefer a more cooperative model run jointly with management that focuses solely on workplace issues. The next Administration should make new options available to workers and push Congress to pass labor reforms that create non-union “employee involvement organizations” as well as a mechanism for worker representation on corporate boards.

Congress should reintroduce and pass the Teamwork for Employees and Managers (TEAM) Act of 2022.18 The TEAM Act:

1.Reforms the National Labor Relations Act’s (NLRA) Section 8(a)(2) prohibition on formal worker–management cooperative organizations like works councils.

2. Creates an “Employee Involvement Organization” (EIO) to facilitate voluntary cooperation on critical issues like working conditions, benefits, and productivity.

3. Amends labor law to allow EIOs at large, publicly traded corporations to elect a non-voting, supervisory member of their company’s board of directors.

Alternative View. While some conservatives lament that workers lack sufficient voice in today’s workplace, others interpret the rise in independent and flexible work opportunities, significant expansion in family-friendly policies like paid family leave, and the decline in private sector unionization as indicators of workers’ increasing competency and control. Another way to help expand workers’ freedom and voices in traditional workplaces is by allowing them to choose who represents them in negotiations with their employer. The Worker’s Choice Act19 would accom- plish this by ending exclusive representation so that unions in right-to-work states are no longer forced to represent workers who do not want to join them. Union Transparency. Private-sector unions must file detailed financial infor- mation with DOL—on matters including union spending, income, loans, assets, membership information, and employee salary—but unions composed entirely of state or local employees are exempt from this filing requirement. These dis- closure requirements help workers and the public understand how union leaders are raising and spending union dues; they also can serve as a vital source of infor- mation that helps workers decide if the unions they are asked to join are good stewards of the funds they collect. DOL, under both George W. Bush and Donald Trump, tried rulemakings (known as the Intermediate Bodies Rule) that would require some government unions to file the same information that is required of private-sector unions.

Under President Trump, OLMS required unions to disclose involvement in trusts that they either own a majority stake in or control. In the past, union trust spending has been hidden, and it appears that trust assets have occasionally been corruptly spent for the benefit of private interests in union leadership— such as $30,000 spent on a private party, $37,500 spent on a Montblanc pen, condominiums for those in power, golf outings, and a Ferrari.20 But the Biden DOL eliminated a transparency rule requiring the filing of the T-1 Trust Annual Report.

More generally, OLMS, which is charged with enforcing the law of union dis- closure, has historically been underfunded when compared to other DOL agencies. This relative lack of funding has made ensuring disclosure more difficult.

Enact transparency rules. The substance of the Intermediate Bodies Rule should pass into law, either through rulemaking or through legislation. The T-1 Trust Annual Report annual filing requirement should be restored. Increase funding levels. Congress should expand the funding of the Office of Labor-Management Standards.

Duty of Fair Representation. Unions have a duty of fair representation to their members, yet they too often abuse that duty to use their members’ resources on left-wing culture-war issues that are unrelated, and in fact often harmful, to union members’ own interests.

The NLRB should take enforcement or amicus action advancing the position that political conflicts of interest by union leadership can support claims for breach of the duty of fair representation in a manner analogous to financial conflicts of interest and analogous to breaches of the fiduciary duty of loyalty in other areas of law. Interpreting “Protected Concerted Activity.” In an effort to prevent employers from retaliating against workers who express a desire to unionize, cer- tain activities are deemed “protected concerted activity” (under §7 of the NLRA).

The NLRB has issued extreme interpretations of these activities, such as deter- mining that a business’s requiring its employees to be courteous to customers and one another is an unlawful infringement on the free speech rights implicit in the protected concerted activity protections in the NLRA.

Reverse unreasonable interpretations of “protected concerted activity.” The NLRB should return to the 2019 Alstate Maintenance interpretation of what does and does not constitute protected concerted activity, including listing eight instances of lawful actions by employers.

Increase the use of 10( j) injunctive relief. The NLRB should increase its use of 10( j) and should articulate guidelines for situations in which it intends to seek injunctive relief; the board should delegate authority to pursue such injunctions to the general counsel and the general counsel should establish a policy of considering them expeditiously in all retaliation cases identified by regional offices.

Dues-Funded Worker Centers. Under current law, both labor unions and unionized employers must file financial disclosures with DOL on an annual basis to ward off potential fraud and corruption of the sort that has been seen recently within the United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). However, worker centers, which have grown in number and influ- ence enormously over the past decade, are not required to file these disclosures.

Investigate worker centers and require financial disclosures. DOL should investigate worker centers that look and act like unions and bring

Injunctive Relief and Worker Organizing Activities. Within the confines of the more reasonable definition of protected concerted activity described above, the NLRB should increase its pursuit of reinstatement injunctions. Firing work- ers engaged in concerted activity has an immediate chilling effect on organizing, but remedies under the NLRA typically come only much later and amount only to backpay. In NLRA section 10( j), Congress empowered the NLRB to obtain temporary injunctions that immediately reinstate workers to their jobs in these circumstances. This provides a more meaningful remedy to the worker and creates a significant deterrent to unfair labor practices, because prompt reinstatement will tend to reinforce the legitimacy of the organizing effort. The NLRB overwhelmingly prevails when pursuing an injunction, succeeding 100 percent of the time in 2020 and 91 percent of the time in 2021.

Office of Labor-Management Standards Initiative. Currently, the Office of Labor-Management Standards (OLMS) may investigate potential employer mal- feasance with regard to union funds in the absence of any complaint by a worker or union but may not do the same with regard to potential union malfeasance. If OLMS has evidence that a union may be violating the law based on information available to the agency (such as annual financial disclosure reports, information developed during an audit of a union’s books and records, or information obtained from other government agencies) it should be permitted to open an investigation. It should have the same enforcement tools available for both employers and unions.

Revise investigation standards. The Office of Labor-Management Standards should revise its investigation standards to authorize investigations without receiving a formal complaint.

Persuader Rule. During the Obama Administration, DOL created significant regulatory burdens for employers with respect to the advice that employers receive about union activity. As a general matter, employers who hire lawyers or other con- sultants to advise employees about union issues must file disclosure forms with the department, as must the lawyers and consultants themselves. Prior to the Obama Administration, advice provided solely to the employer required no disclosure. The Obama Administration attempted to eliminate this “advice exemption” with a directive known as the “persuader rule,” which was successfully challenged in court. In 2018, the Trump Administration formally rescinded the persuader rule.

DOL should rescind the persuader rule once again should the Biden Administration revive it.

Unionizing the Workplace: Card Check vs. Secret Ballot. Under the NLRA, instead of having a secret ballot election about the decision to unionize a workplace, a union may instead collect signed pro-union cards from a majority of the employees it wishes to represent and then ask the employer and National Labor Relations Board for voluntary union recognition. That request gives the employer the option to hold a secret-ballot election or to recognize the union with- out any such election. This “card check” procedure is likely to induce employees to provide their signed cards in ways that do not accurately reflect their true pref- erences—ranging from a desire not to offend the signature requestor to a wish to avoid intimidation and coercion to signing based on false information provided by union organizers. In short, the card check procedure sidesteps many aspects of democratic decision-making that free and fair elections conducted by secret ballot are supposed to accomplish. Notably, the general counsel of the National Labor Relations Board has recently proposed an esoteric legal theory that card-check decision-making is required under the law, basing this theory on an old NLRB case, Joy Silk, even though the Supreme Court has repeatedly rejected mandatory card-check recognition.

Discard “card check.” Congress should discard “card check” as the basis of union recognition and mandate the secret ballot exclusively.

Contract Bar Rule. Although current labor law allows a union to establish itself at a workplace at more or less any time, the calendar for any attempt to decertify a union is considerably more constrained. If a union is recognized as a collective bargaining agent, then employees may not decertify it or substitute another union for it for at least one year under federal law (the “certification bar”). Similarly, when a union reaches a collective bargaining agreement with an employer, it is immune from a decertification election for up to three years (the “contract bar”). A typical consequence of these rules is that employees must often wait four years before they are allowed a chance at decertification. Employees then have only a 45-day window to file a decertification petition; if the employer and union sign a successor contract, then the contract bar comes into play once again—meaning employees with an interest in decertification must wait another three years. Eliminate the contract bar rule. NLRB should eliminate the contract bar rule so that employees with an interest in decertification have a reasonable chance to achieve their goal.

Tailoring National Employment Rules. National employment laws like the Fair Labor Standards Act (FLSA)21 and the Occupational Safety and Health (OSH) Act22 set out one-size-fits-all “floors” regulating the employment rela- tionship. These substantive worker protections often do not mesh well with the procedural worker protections offered through the NLRA’s collective bargaining process. Unions could play a powerful role in tailoring national employment rules to the needs of a particular workplace if, in unionized workplaces, national rules were treated as negotiable defaults rather than non-negotiable floors.

Congress should amend the NLRA to authorize collective bargaining to treat national employment laws and regulations as negotiable defaults. For example, this reform would allow a union to bless a relaxed overtime trigger (e.g., 45 hours a week, or 80 hours over two weeks) in exchange for firm employer commitments on predictable scheduling.

Alternative Policy. While some conservatives (including the author of this chapter) believe that it would be a mistake to antagonize unions’ core interests, others argue that the next Administration should end Project Labor Agreement require- ments and repeal the Davis–Bacon Act. And while some conservatives have chosen not to address massive federal subsidies for unionized labor, others believe that current laws and regulations that pick winners and losers to the detriment of the majority of construction workers and to all taxpayers should not be ignored. Project Labor Agreements (PLAs) are short-term collective bargaining agreements that apply to construction projects. There are a few reasons that con- struction projects may benefit from a PLA, and there are many reasons that even when actively encouraged to do so public construction projects have declined to use PLAs. Among the consequences: The majority of construction firms and construction workers are not unionized and their temporary forced unionization results in large-scale wage theft; construction companies are significantly less likely to bid on projects with PLAs; and PLAs consistently drive up construction costs by 10 percent to 30 percent.

The Davis–Bacon Act23 requires federally financed construction projects to pay “prevailing wages.” In theory, these wages should reflect going market rates for construction labor in the relevant area. However, both the Government Account- ability Office and the Department of Labor’s Inspector General have repeatedly criticized the Labor Department for using self-selected, statistically unrepresenta- tive samples to calculate the prevailing-wage rates that drive up the cost of federal construction by about 10 percent. The Davis–Bacon Act redistributes wealth from hardworking Americans to those that benefit from government-funded construc- tion projects. Repealing the Davis–Bacon Act would increase worker freedom and end a longstanding effective tax on American families.

End PLA requirements. Agencies should end all mandatory Project Labor Agreement requirements and base federal procurement decisions on the contractors that can deliver the best product at the lowest cost. Repeal Davis–Bacon. Congress should enact the Davis–Bacon Repeal Act and allow markets to determine market wages.

THE STATES

Worker-led Benefits Experimentation. Workers depend on unemployment benefits to navigate inevitable market frictions and seek new employment oppor- tunities. But existing unemployment insurance (UI) is bureaucratic, ineffective, and unaccountable. The outdated system’s myriad failures during the COVID-19 pandemic highlighted the need for innovations that respond to recipients’ needs. The most promising avenue for innovation is to involve workers and private-sec- tor organizations more directly, freed from unnecessary bureaucratic strictures. Americans take for granted that unemployment benefits must be administered by

government agencies, but other Western market democracies feature effective and popular benefits administered by non-public worker organizations. The next conservative Administration should encourage UI innovation by capi- talizing on a key feature of the system and principle of conservative policymaking: federalism. State governments already administer unemployment benefits and have broad discretion over their programs. Existing statutory language in the Social Security Act24 does not prohibit non-public organizations from administering the program, nor does it specifically authorize states to do so. Further, the Adminis- tration can replicate state-level experiments in welfare programs and empower state officials to adapt UI to local conditions and needs. l l Offer waivers for suitable alternatives. DOL should offer waivers from the standard requirements imposed on unemployment compensation by § 303(a) and § 303(d) of the Social Security Act to states that propose suitable alternatives. Require organizations to comply with restrictions on political spending. DOL should establish as a precondition for receiving any public funds a requirement that an organization comply with restrictions on political spending as applied to 501(c)(3) charitable organizations. Labor Law. The federal laws governing labor-management relations have barely changed in generations, and reforms on the federal level have been almost impossible to get through Congress. To modernize labor law, the Congress should: l Pass legislation allowing waivers for states and local governments. To encourage experimentation and reform efforts at the state and local levels, Congress should pass legislation allowing waivers from federal labor laws like the NLRA and FLSA under certain conditions. State and local governments seeking waivers would be required to demonstrate that their reforms would accomplish the purpose of the underlying law, and not take away any current rights held by workers or employers. In addition, waivers would be limited to a five-year period, after which time they could be modified, canceled, or renewed. Excessive Occupational Regulation. Excessive occupational regulation— most typically encountered as occupational licensing—creates underemployment

Approve non-public worker organizations as UI administrators. DOL should approve, pursuant to § 303(a)(2) of the Social Security Act, non- public worker organizations as administrators. and wasted resources, and artificially increases consumer prices. It is a significant problem that is difficult to address at the federal level.

Congress should ensure that interstate compacts for occupational license recognition that are federally funded do not require new or additional qualifications (that is, qualifications that do not originate from state governments themselves) for licensed professionals to participate. Congress should ensure that well-qualified licensees are not locked out of the job market by restrictive government programs funded by the federal government. (For instance, medical doctors must complete residency training to practice, and because Medicare provides funding for significantly fewer residencies than there are doctors, sizable numbers of MDs are locked out of the job market every year.) Wagner–Peyser Staffing Flexibility. State agencies that administer unem- ployment benefits and workforce development programs should be able to hire the best people to do the job and should not be required to use state employees if a contractor can do the job better. Further, the federal government should not force a state to use non-union labor or union labor for these positions.

DOL should repromulgate the Trump-era staffing flexibility rule, and Congress should codify it.