Labor law makes it too hard to start unions. Workers deserve a bigger voice

By Alexander Hertel-Fernandez forCNN BusinessPerspectives

Updated 1430 GMT (2230 HKT) January 29, 2020

This year the answers could not have been more different. Thanks to amassive waveof strikes and new efforts to unionize across tech companies and media outlets, my students saw unions in a different light. They were now interested in what unions could offer them in terms of better wages and benefits and voice on the job and indeed, many were involved in the newly formedgraduate student unionat Columbia University fighting for improved health care benefits and more transparent employment policies.

This new interest is shared by much of the American workforce. The percentage of non-union members expressinginterestin joining a union shot up from around a third of workers in the 1970s and 1990s to nearly half of all workers in 2017, according topollingconducted by researchers at MIT. Yet the discouraging reality is that current labor law makes it all but impossible for these workers to form or join unions at their jobs. And even in the rare cases where workers do manage to start unions, these organizations are sharply limited in the representation that they can provide to workers.

Start with the fact that only about one in 10 non-union workers say they would know how to form a union if they wanted to,accordingto polling I have conducted together with researchers at MIT. That's understandable because the process is long, complicated and risky for rank-and-file workers. Workers oftenendurethreats, mandatory anti-union meetings, surveillance and even physical intimidation from their employers in the protracted process necessary to hold anelectionfor union representation.

Although employers are legally barred from disciplining or firing workers involved in the union organizing process,many employers do so anywaybecause the penalties are so low. An employer that illegally fires a union organizer isliableonly for paying the worker's back payminus any income the worker has earned in the meantime. One recent reportestimatedthat employers are charged with violating federal law in over 40% of union elections. And if workers manage to win union elections against these long odds, they still have to reach a first contract. Many employersdragthe process on for years until workers lose steam.

Other workers, moreover, simply lack union rightsaltogether: agricultural workers, domestic and caretaking workers, independent contractors, anyone with any supervisory duties and public sector workers in many states cannot collectively bargain with their employers.

On top of these barriers to forming a union is the fact that current labor law makes it difficult, if not outright impossible, for unions to provide the services that workers say are most important, like having a voice when it comes to management decisions or health and retirement coverage they can take with them between jobs. Together with researchers at MIT's Sloan School of Management, I have been conducting nationally representative surveys of American workers tounderstandthe forms of labor representation that workers would most value.

Our research found that workers highly valued traditional collective bargaining, as well as sectoral or regional bargaining that would allow labor organizations to set standards across an industry or state. Workers also prized labor organizations that could offer extra unemployment benefits, health insurance, retirement coverage, job training and skills development. And workers liked the idea of giving labor organizations more input into how they do their day-to-day jobs as well as weighing in on decisions made at the firm-wide level about business operations.

In all these cases, current federal labor rules make it all but impossible for unions to offer these services on a widespread basis. (Unions, for instance, can bargain with multiple employersbut only if all those employers voluntarily agree to do so.) The upshot is that even where they exist now, unions are handicapped byoutdatedlaws built for a post-war economy. Although workers want and need unions that can operate across different sectors, American labor law isbuilt-around unions that organize and bargain at a single plant, factory or store.

Given these obstacles, expanding worker voice will require more than tinkering around the edges of existing law. Instead, we need to start from scratch. The good news is that there is a growing consensus around the need for such an approach. For the first time in recent political history, the major Democratic presidential candidates have allincludedambitious proposals for labor law reform as part of their platforms. Meanwhile, the House isconsideringthe PRO Act endorsed by nearly all Democrats which would substantially boost workers' ability to form and join effective unions.

Unions are thinking bigger, too: Both theAmerican Federation of LaborandService Employees International Unionhave announced proposals for broadening the scope of labor cooperation and bargaining at the sector-wide level. And theClean Slate for Worker Power initiativeat Harvard Law School recently released a sweeping set of proposals aimed at empowering workers both by expanding traditional unions but also by creating other alternative mechanisms for worker voice.

Establishing a new system of laws governing the workplace is not going to be easy, nor would the proposals described above solve all the problems of economic and political inequality facing the United States. These kinds of ambitious labor reforms would go far in giving workers the voice and representation they say they want at work. As one of my students expressed at the end of last semester, while they might not always be perfect, unions are still the best shot that workers have of securing dignity and rights on the job.

1. Do labor unions engage in ethical behavior?

2. Please explain what ethical behavior in the context of labor unions means to you and discuss whether the net effect of labor unions in the United States has been negative or positive.

3. Historically, what factors precipitated the formation of labor unions in the United States?

4. Please describe in some detail, including developments in the 18^th, 19^th, and 20^thcenturies.

5. Reflection: