Labor law? Burn the whole thing down and start over, says report

The success of the Culinary Union in Nevada is well documented and gushingly praised.

It’s also difficult to replicate.

But it shouldn’t be, argues UNLV law professor and labor law expert Ruben Garcia, and the United States needs to overhaul its labor laws to empower all workers.

Garcia is part of a group of more than 70 labor leaders, activists and academics who, led by two Harvard Law School professors, crafted “Clean Slate for Worker Power: Building a Just Economy and Democracy.” The comprehensive report argues for a “fundamental redesign of labor law” that stops “the vicious, self-reinforcing cycle of economic and political inequality” that exists in the U.S. today.

“The theory of Clean Slate is simple,” reads the executive summary. “When labor law enables working people to build organizations of countervailing power, the people can demand for themselves a more equitable nation.”

Union membership has been on the decline in the United States for decades. It is estimated that more than a third of workers in the 1950s were union members. According to the Bureau of Labor Statistics, in 2019, 10.3 percent of wage and salary workers in the public and private sectors combined were union members — compared to 20.1 percent in 1983, the earliest year they have comparable data for.

“Workers right now need to win a secret ballot election with 50 percent plus one to get recognized legally as a bargaining representative,” said Garcia, “but that has proven to be more of a fight than a right.”

Clean Slate calls for collective representation to go beyond this binary. A graduated system offering more options than “union or bust” could include workplace monitors, work councils, non-exclusive collective bargaining representation, and exclusive collective bargaining representation. Garcia says many within the legal community, himself included, believe existing law already allows for minority representation but the National Labor Relations Board has refused to acknowledge that. 

The report also calls for sectoral bargaining, meaning collective bargaining that covers workers across industries or sectors. In their proposed version, when a union includes 5,000 workers or 10 percent of the workers within a sector, the U.S. secretary of labor would establish a sectoral bargaining panel for negotiations and agreements would be binding on all firms and workers in that sector.

Sectoral bargaining would put an end to the existing piecemeal “enterprise bargaining” system, which forces unions to negotiate with individual firms of businesses only.

That could usher in major changes for workers in low-wage fast food or retail jobs, of which Nevada has many. If a sectoral bargaining panel were used to increase wages and benefits of all fast food workers nationwide, employers like McDonalds or Burger King could no longer argue that unionization puts them at a competitive disadvantage because all competitors would similarly be affected by negotiations. Sectoral bargaining has already been used in places like New York and California to secure higher wages for fast-food workers.

Here in Nevada, sectoral bargaining might mean Culinary could negotiate with Station Casinos, MGM Resorts, Caesars and other resort companies collectively rather that at each of of those corporation’s individual properties.

Garcia says Culinary’s ability to stake its position as a political powerhouse despite being in a right-to-work state is a testament to “a lot of hard work and organizing,” but it’s also reflective of the fact gaming and hospitality are both highly concentrated and the dominant industries in the state.

“That kind of leverage, that coverage, can be a model for other states,” he adds, “but the economies in another state may not exist (to support that).”

Many labor advocates believe sectoral bargaining is the future of unions. The head of the SEIU advocated for it. Other countries already have some form of it. Several presidential candidates — Pete Buttigieg, Bernie Sanders, Elizabeth Warren — have included it within their platforms.

“Across our entire history, access to economic and political power has been unforgivably shaped by racial and gender discrimination, as well as by discrimination based on immigration status, by sexual orientation and gender identity discrimination, and by ableism,” reads the report’s executive summary. “And, truth be told, the American labor movement has itself often failed to insist upon a genuinely inclusive and equitable America.”

Their comprehensive list of recommendations includes expanding the scope of who is allowed to collectively bargain to include domestic, agricultural and undocumented workers, as well as workers who are incarcerated and workers with disabilities. Many of these populations were intentionally left out of the landmark 1935 Wagner Act in order to appease politicians, particularly from the South. The report also calls for worker representation on the board of all public companies and better protections and resources for workers attempting to organize or unions who are striking.

Garcia says the National Labor Relations Act of 1935 was “groundbreaking” for its day, but 85 years later, a complete overhaul is needed.