Labor wish list bills bring progressive platform into view
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Jockeying for inclusion in the Democrats’ 2020 platform is now starting and the early betting is that it will feature radical labor reforms prominently.

In early May, Sen. Bernie SandersBernie SandersGabbard arrives in Puerto Rico to 'show support' amid street protests Democratic strategist predicts most 2020 candidates will drop out in late fall Sanders unveils plan to guarantee the 'right to a secure retirement' MORE (I-Vt.) introduced the Workplace Democracy Act (WDA, S. 2810), a sweeping piece of legislation that would marry failed union proposals from the early days of the Obama administration with a host of radical new ideas. Then, barely a month later, an even more dramatic bill, the Workers’ Freedom to Negotiate Act (WFNA) (S.3064/ H.R. 6080), was introduced, spearheaded by Senate Minority Leader Charles SchumerCharles (Chuck) Ellis SchumerTop Democrats demand security assessment of Trump properties Lawmakers pay tribute to late Justice Stevens Trump administration denies temporary immigrant status to Venezuelans in US MORE (D-N.Y.) and House Minority Leader Nancy PelosiNancy PelosiTrump telling aides to look at potential spending cuts if he wins reelection: report Budget talks between White House, Pelosi spill into weekend Trump says he won't watch Mueller testimony MORE (D-Calif.).


Ironically, for a bill with the word “democracy” in its title, the WDA brings back an extremely undemocratic concept—eliminating the opportunity for employees to vote through a secret ballot on whether they will have a union. Instead, it would force employers to recognize a union via the widely discredited card check process, which relies on intimidating and deceptive tactics. The card check process was so outside of the mainstream that legislation built around it failed even when Democrats had strong majorities in Congress and a sympathetic president in 2009. The WFNA is even less democratic. It allows the government to demand a company recognize a union, even if the majority of employees voted against unionization. All that’s needed is a charge from the union showing the employer “interfered” in the election—a loose term that could mean as little as having a poorly worded clause in an employee handbook.

Likewise, both bills actually take away workers’ freedom to negotiate a contract. Instead, they include a binding arbitration provision that would authorize government officials to impose first contracts on workers and employers, whether they like it or not.

More disturbingly, both bills would effectively repeal the Taft-Hartley Act—labor law reforms enacted in 1947 to rein in some of the most abusive union organizing tactics of that era. For example, the bills would allow unions to once again engage in secondary boycotts and picketing, meaning that they can go after any employer doing business with a targeted company even if those employers had nothing to do with the union. This is a recipe for disrupting entire segments of the economy.

Another key provision of the Taft-Hartley Act allowed states to pass right-to-work laws, meaning that workers could no longer be fired for not paying union dues. Twenty-eight states have enacted right-to-work laws, including some with high union density such as Michigan, Nevada and Wisconsin. Both bills go after this provision—the WDA through a frontal assault by simply invalidating state laws, and the WFNA through mandating that employees pay the union regardless of whether the state has a right-to-work law.

Moreover, both bills would enshrine the National Labor Relations Board’s unworkable Browning-Ferris decision, which created joint-employer liability under the National Labor Relations Act based on mere “indirect” or “potential” control of another company’s employees. Under this expansive standard, almost any contractual relationship, particularly with regard to franchising, opens up the possibility of holding employers liable for workplaces they neither own nor manage.

Both bills also include language that would codify into federal law a strict new definition of independent contractor recently imposed in California by the state Supreme Court. This restrictive definition threatens to make using or operating as an independent contractor extremely difficult. It would hit the tech sector, start-ups, and “gig” economy companies especially hard, not to mention the millions of individuals who value the independence and flexibility of working as independent contractors.

The WFNA adds several more provisions that make it a smorgasbord of unfair labor policy. Among these are: eliminating employers’ legal rights during union elections; allowing bureaucrats to debar government contractors based on mere allegations of a labor law violation; and reinstating the “persuader” rule, which was intended to deprive employers of legal representation during union campaigns, that a court found “defective to its core.”

Given the radical nature of the WDA and WFNA, it is should be surprising to see the co-sponsors of both bills include potential presidential hopefuls and even includes two senators from right-to-work states, Sens. Tammy BaldwinTammy Suzanne BaldwinOvernight Health Care — Presented by PCMA — Judge upholds Trump expansion of non-ObamaCare plans | Williamson says she believes in vaccines | House committee to hold oversight hearing on Juul The Hill's Morning Report: Trump walks back from 'send her back' chants Overnight Health Care — Presented by PCMA — Health care moves to center stage of Democratic primary fight | Sanders, Biden trade sharps jabs on Medicare for All | Senate to vote on 9/11 bill next week | Buttigieg pushes for cheaper insulin MORE (D-Wis.) and Debbie StabenowDeborah (Debbie) Ann StabenowDemocrats grill USDA official on relocation plans that gut research staff USDA expected to lose two-thirds of research staff in move to Kansas City GOP Senate challenger in Michigan raises .5 million in less than a month MORE (D-Mich.).

While these bills will not move in the current Congress, the list of co-sponsors suggests that aspiring candidates see supporting them as necessary to succeed in the Democratic presidential primaries. Thus, they will have a shelf life that goes beyond 2018. To ensure that they stay on the shelf, or better yet end up in the dustbin, lawmakers who care about preserving balance in labor law should object to them now.

Marc Freedman is vice president of workplace policy at the U.S. Chamber of Commerce.