The Powerful New Idea in Elizabeth Warren’s Labor Platform

Shaun Richman October 4, 2019

Elizabeth Warren has a sweeping new labor platform—a welcome addition to the host of worker-empowering plans put forward by 2020 candidates. (Photo by Ethan Miller/Getty Images)

On Thurs­day, Eliz­a­beth War­ren released her long-await­ed labor plat­form, titled Empow­er­ing Amer­i­can Work­ers and Rais­ing Wages.” The plan pro­vides unions with a long wish list of bad­ly need­ed reforms and new pow­ers. It also makes a sol­id case that, like Bernie Sanders, she would be the labor movement’s biggest boost­er in the White House in generations.

Sev­er­al oth­er can­di­dates, includ­ing Julián Cas­tro, Beto O’Rourke and Amy Klobuchar, have also recent­ly put out lengthy labor plans, which pro­vide exam­ples of how (and how not) to stand out from the pack when the base­line posi­tion of most Democ­rats in repeal­ing the Taft-Hart­ley Act.

The biggest inno­va­tion in Warren’s plat­form is a pri­vate right of action in the fed­er­al courts against employ­ers who vio­late the Nation­al Labor Rela­tions Act.

Cur­rent­ly, only employ­ers are able to take their com­plaints direct­ly to the fed­er­al courts, against a union pick­et line, boy­cott action or oth­er alleged vio­la­tion of the 1947 Taft-Hart­ley Act. War­ren would enable a union or an affect­ed employ­ee to sue an employ­er who com­mits an unfair labor prac­tice (say, cut­ting a union activists’ hours, mak­ing threats or spy­ing on secret union meet­ings) and seek injunc­tive relief — and even com­pen­sato­ry dam­ages. Such a change would even the play­ing field in a sig­nif­i­cant way.

War­ren is also propos­ing some activist anti-trust strate­gies to empow­er work­ers who are deemed to be inde­pen­dent con­trac­tors to bet­ter orga­nize — and to shut down cor­po­rate merg­ers that will harm employ­ees’ pay and work rules.

In the plat­form, War­ren also reit­er­ates her pro­pos­al for employ­ee rep­re­sen­ta­tion in cor­po­rate gov­er­nance. A War­ren admin­is­tra­tion would aim to make bil­lion-dol­lar cor­po­ra­tions set aside 40% of their exec­u­tive board seats for employ­ee rep­re­sen­ta­tives. While not new to her plat­form, it is a sur­pris­ing­ly rad­i­cal idea that hasn’t received enough attention.

Like Sanders, War­ren calls for a new fed­er­al frame­work for sec­toral bar­gain­ing. The goal is to give unions the tools to equal­ize wages and ben­e­fits across mul­ti­ple firms in an indus­try. Since indi­vid­ual employ­er-based col­lec­tive bar­gain­ing is a huge part of the self-image of mem­bers and lead­ers alike of what unions do, both can­di­dates are inten­tion­al­ly vague about the specifics of their pro­pos­als, and they are equal­ly clear that unions will have a strong role in shap­ing the final legislation.

Still, the labor pro­pos­als from War­ren and Sanders each sig­nal their pre­ferred approach.

I read Sanders plat­form as an embrace of wage boards, a throw­back to an ear­ly New Deal mod­el in which tri­par­tite indus­tri­al boards vot­ed on wage and work­ing stan­dards, and imposed them on all employ­ers across an indus­try. As I’ve writ­ten pre­vi­ous­ly, this is a frame­work that could put a union in every work­place in Amer­i­ca, but, to be clear, it is not col­lec­tive bar­gain­ing as we know it.

Warren’s pro­pos­al seems to be adding an over­lap­ping rep­re­sen­ta­tion­al struc­ture to the NLRB process. Work­ers at indi­vid­ual work­places might still vote for union rep­re­sen­ta­tion at their firm only and nego­ti­ate col­lec­tive bar­gain­ing agree­ments as we cur­rent­ly do. Mean­while, cer­ti­fied unions could uti­lize some new process to cer­ti­fy a sec­toral bar­gain­ing unit that would force employ­ers to nego­ti­ate togeth­er over a spec­i­fied scope of bar­gain­ing. This change would enhance union pow­er (and unions may pre­fer it), but — even with card check and beefed-up NLRB enforce­ment — it would remain dif­fi­cult for unions to dra­mat­i­cal­ly expand their reach into many new workplaces.

The biggest dis­ap­point­ment of Warren’s labor plan is her stu­dious avoid­ance of a just cause right to your job, as Sanders has pro­posed. A just cause law would put the onus on an employ­er to jus­ti­fy a ter­mi­na­tion. Just cause would give work­ers the pow­er to say no to requests that fall out­side the bounds of their duties or pro­pri­ety, and it would give unions new tools in orga­niz­ing and new modes of representation.

Instead, she pro­pos­es to amend the law in at least nine sec­tions to out­law non-com­pete and forced arbi­tra­tion claus­es and some of the most egre­gious forms of gen­der and wage dis­crim­i­na­tion. The fact that her plat­form con­tains a ridicu­lous­ly long list of cat­e­gories of work­ers whose pro­tec­tions against work­place dis­crim­i­na­tion belie the notion that uni­ver­sal pro­tec­tions are not essential.

More­over, if a War­ren admin­is­tra­tion suc­cess­ful­ly pass­es anti-dis­crim­i­na­tion pro­tec­tions for LGBTQ and preg­nant work­ers, the law would still put the onus on the work­er who suf­fered the dis­crim­i­na­tion to prove that their ter­mi­na­tion was for dis­crim­i­na­to­ry rea­sons and not one of the many oth­er excus­es an employ­er will offer in defense.

In essence, this is the dif­fer­ence between the two most pro-labor can­di­dates in the Demo­c­ra­t­ic field. Eliz­a­beth War­ren approach­es the issue of rights at work as a prob­lem solver, and wants to enhance the insti­tu­tion­al role of work­er rep­re­sen­ta­tion to restore a degree of macro­eco­nom­ic bal­ance. Bernie Sanders aims to rad­i­cal­ly alter the bal­ance of pow­er in the workplace.

Both plat­forms are excel­lent, and large­ly over­lap on the remain­der of reforms to the NLRA and oth­er fed­er­al agen­cies that are sup­posed to pro­tect work­ers from cor­po­rate exploita­tion, and both can­di­dates can clear­ly be relied upon to pri­or­i­tize work­ers’ rights issues once in office.

As for Cas­tro, O’Rourke and Klobuchar, they also agree on an emerg­ing con­sen­sus around fight­ing employ­ee mis­clas­si­fi­ca­tion and over­time pro­tec­tion, rais­ing the min­i­mum wage and pass­ing the Pro­tect­ing the Right to Orga­nize (PRO) Act, which would essen­tial­ly over­turn the anti-union Taft-Hart­ley Act, add card check under some cir­cum­stances and impose mean­ing­ful finan­cial penal­ties for employ­ers who vio­late their employ­ees’ rights

Cas­tro makes a major issue out of grant­i­ng union rights for farm and domes­tic work­ers — racist exclu­sions from the NLRA that cast a pall over the New Deal. Grant­ed, almost every oth­er can­di­date also sup­ports this, but Cas­tro stands out in terms of emphasis.

Klobuchar, on the oth­er hand, is demon­stra­bly going through the motions on work­ers’ rights. She endors­es a long list of oth­er people’s bills with no empha­sis and noth­ing orig­i­nal. This shouldn’t come as a sur­prise from a politi­cian who appar­ent­ly thinks it’s fun­ny to treat her own employ­ees poor­ly. For read­ers who are wor­ried that the can­di­dates are just pay­ing lip ser­vice to unions dur­ing the pri­maries but won’t fol­low through, Amy Klobuchar is what a Demo­c­rat who real­ly doesn’t care about work­ers looks like. Com­pare and con­trast with the others.

The biggest sur­prise is O’Rourke, who has one of the best labor plat­forms in the field. Like Pete Buttigieg, O’Rourke has clear­ly been tak­ing advice from some of the smartest thinkers on how to restore union pow­er, but unlike that oth­er cen­trist from cen­tral cast­ing Buttigieg, O’Rourke embraced some of the bold­est solu­tions. Most inter­est­ing­ly, on the choice between wage boards and cer­ti­fied sec­toral bar­gain­ing, O’Rourke’s team asks, Why choose?” Under his for­mu­la, the wage boards would address big-tick­et items across entire indus­tries and take them out of com­pe­ti­tion, while the sec­toral bar­gain­ing would empow­er unions to nego­ti­ate over the detailed minu­tia that work­ers also want to address in a con­tract. O’Rourke’s plan would give unions mul­ti­ple strate­gies to end the cor­po­rate race to the bot­tom over pay and work­ing conditions.

The Yes and…” Labor Platform

Warren’s pro­pos­al for a pri­vate right of action in ULP cas­es is the biggest new addi­tion, and should remain on unions’ reform agen­da no mat­ter who wins the nom­i­na­tion. But it is not with­out con­tro­ver­sy. The fed­er­al courts have his­tor­i­cal­ly been where the most dam­age to work­ers’ rights have been inflict­ed, and many union attor­neys will be appre­hen­sive about los­ing con­trol of strat­e­gy over mar­gin­al cas­es that could pro­duce bad case law. I would argue that we’ve been fight­ing this any­way (and not exact­ly pro­duc­ing a stel­lar track record of wins), so why not cut to the chase and fight for our rights in the courts? Why let a Repub­li­can NLRB add lay­ers of obstruction?

Beto O’Rourke’s yes and” approach to sec­toral and indus­try-wide work­er rep­re­sen­ta­tion should also inspire us to think about the oppor­tu­ni­ties of a new pres­i­dent and Con­gress dif­fer­ent­ly. Labor activists have tend­ed to approach pre­vi­ous oppor­tu­ni­ties for reform as a nar­row win­dow to win one thing, and the argu­ments over which one thing’ will save us have been paralyzing.

But the cri­sis of eco­nom­ic inequal­i­ty and its cor­ro­sive effects on our democ­ra­cy require a host of reforms, and even cen­trist Democ­rats get that. We need over­lap­ping sys­tems of work­er pow­er, union rep­re­sen­ta­tion and employ­ee pro­tec­tions. The labor move­ment has now been pre­sent­ed with a rich col­lec­tion of reform pro­pos­als. We should say yes to all of them.

Shaun Rich­man is an In These Times con­tribut­ing writer and the Pro­gram Direc­tor of the Har­ry Van Ars­dale Jr. School of Labor Stud­ies at SUNY Empire State Col­lege. His Twit­ter han­dle is @Ess_Dog.
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