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.