Sen. Sanders (I-VT) and Rep. Pocan (D-WI) Introduce Bill To Facilitate Union Organizing — Includes Card Check And A Lot More

by McGuireWoods LLP

Senator Bernie Sanders (I-VT), joined by a number of union leaders and Democratic lawmakers, yesterday announced introduction of the “Workplace Democracy Act” in the Senate.  The bill recycles a number of the failed legislative and administrative efforts of the past decade or so to reform labor law to facilitate union organizing, including the Employee Free Choice Act (EFCA) and Sen. Sanders’ 2015 version of this bill.  But it expands upon those efforts significantly to include numerous additional labor-friendly proposals.  The bill, co-sponsored by nine Democrat Senators, includes the following provisions:

  • Card Check:  Like the repeatedly rejected EFCA bills, this provision would amend the National Labor Relations Act to facilitate union organizing by requiring certification based on “card check” — the presentation of publicly collected employee signatures.
  • Interest Arbitration:  Again, like EFCA, it would eliminate freedom of contract by requiring that the terms of a first labor contract would be set by a government authorized arbitrator after just 120 days of negotiations between management and a union.
  • Limit Employer Speech: It would prohibit employers from communicating with employees about a wide variety of issues, including union representation, in workplace meetings.
  • Eliminate Right to Work: It would amend the Act to overrule the state laws currently on the books in twenty-eight (28) states which prohibit compulsory union membership as a condition of employment.
  • Authorize Secondary Boycotts: The bill would delete 1947 amendments to the Act, to allow unions to apply boycott and other economic pressure against customers, vendors, contractors and other parties to force an employer to capitulate to union demands.
  • Expand Definition of Employee: It would incorporate into federal law the California Supreme Court’s recently adopted “ABC Test” for determining whether a worker is an “independent contractor” or an “employee,” to draw a wider variety of workers into the coverage of the NLRA, allowing them to organize a workplace.
  • Joint Employer: The bill would incorporate into the Act the Board’s expanded “joint employment” standard set forth in Board’s decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015).
  • Persuader Rules: The bill would amend the Labor Management Reporting and Disclosure Act of 1959 (LMRDA) to include many of the provisions of the Obama-era DOL’s “Persuader Rule” overhaul — which was invalidated by the federal courts as “defective to its core.”

Rep. Mark Pocan (D-WI) has introduced a parallel measure in the House, along with co-sponsor Rep. Rosa DeLauro (D-CT).

This bill reflects the most comprehensive and extreme compilation of organized labor’s policy desires introduced in recent memory.  In the current Congress, this bill is unlikely to even progress out of Committee in either chamber, and likely serves primarily as a vehicle to force candidates in the upcoming midterm elections to “go on record” on key issues for organized labor. It is also no coincidence that many of the Senators discussed as likely 2020 Presidential contenders have joined as initial co-sponsors.

Management cannot afford to ignore this bill all the same.  It is certain to drive discourse and mobilization efforts by labor unions in the run-up to the 2018 midterms.  Moreover, if the House flips to a Democratic majority after November’s elections — and Committee leadership with it — the various elements of this bill would comprise the legislative agenda on traditional labor issues. There would be committee hearings and floor debate, and further mobilization around that, to be sure.

It would be prudent to get educated on these issues and to adjust policy and operational strategies accordingly.

Additional Commentary and Resources:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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