Dear Chairman Cassidy and Ranking Member Sanders:
The AFL-CIO is a federation of 63 affiliated unions that together represent more than 15 million working people in every sector of the economy and in every state. We strive to ensure that everyone who works in this country receives fair pay, good benefits, safe working conditions, and dignity and respect on the job. We are writing regarding the above-titled hearing.
We appreciate the Committee’s attention to labor law reform. Decades of unionbusting by unscrupulous employers, countenanced by the law via silence or ineffective enforcement, have resulted in the denial of the fundamental rights to organize and collectively bargain to millions of workers in this country. Today, 60 million Americans say they would join a union – if they could. There is good reason for them to want to join a union, and good reason for policymakers who care about a stable, fair economy to let them join. By one measure after another, workers who collectively bargain do better than those who do not, with higher wages, better benefits and working conditions, and a voice on the job. Collective bargaining is simply workers joining together to press for a better deal. Where collective bargaining is strong, the benefits reverberate through communities and even entire industries. For a strong America, where all voices are heard and people can get ahead, the law should make real again the national policy that helped build the middle class: it should encourage collective bargaining, not frustrate it.
There are currently two bills pending before your Committee that present the most comprehensive pro-worker reforms to labor law to date: the Richard L. Trumka Protecting the Right to Organize (PRO) Act (S.852), introduced by Senator Sanders, and the Public Service Freedom to Negotiate Act (PSFNA) (S.1352), introduced by Senator Mazie Horono. The PRO Act tackles a series of critical weaknesses in the National Labor Relations Act (NLRA), which governs the organizing and collective bargaining rights of most private sector workers. PSFNA ensures that public sector workers in states and localities have access to collective bargaining, as some jurisdictions deny that right outright. The reforms laid out in these bills are badly needed. We strongly urge the Committee to move them forward to allow working people to fashion and press for their own solutions, workplace by workplace, industry by industry, to the economic strains so many of us face.
On that note, there is a bill pending before your Committee that consists of one provision of the PRO Act: the first contract mediation and arbitration provision. The Faster Labor Contracts Act (S.844), like the PRO Act provision, would provide stronger incentives for good faith bargaining. The existing NLRA requires employers to engage in good faith bargaining with employees’ exclusive bargaining representative with the intent of reaching a labor contract – but remedies for violations of this requirement are infamously weak. An employer who refuses to bargain at all or bargains in bad faith – thereby avoiding or delaying the benefits of collective bargaining – is ultimately subject to an order to bargain in good faith – i.e., they are ordered to do the thing the law already required them to do – and to post a notice that they will do so. That’s it. Consequently, unionbusting campaigns do not end after a union wins a representation election but continue into the first contract negotiations. If an employer delays a contract by a year, the union may be decertified. Accordingly, an anti-union employer has an incentive to violate the law, when the incentives should be in favor of compliance.
The PRO Act provision and the Faster Labor Contracts Act provide a timeline for bargaining a first contract. After each stage of bargaining, either party is empowered to move the negotiations to the next stage, from party-to-party bargaining, to mediation, and finally to binding arbitration. In this fashion, a first contract will be reached by agreement of the parties or by an arbitrator’s award. With the prospects of an arbitrated contract down the line, both parties are incentivized to reach an agreement in good faith ahead of such outcome, finding common ground on their terms. These provisions only apply to the first contract between the parties, helping foster a constructive bargaining relationship that will be the parties’ responsibility to maintain and expand in subsequent negotiations.
Importantly, the Faster Labor Contracts Act is bipartisan, introduced by Senators Josh Hawley (R-MO) and Cory Booker (D-NJ), with additional cosponsors from both parties. To move positive reform right now with the support of Senators from both sides of the aisle, we urge the Committee to mark up this bill. This would help solve one problem confronting workers every year. As the PRO Act and PSFNA highlight, there are still many more problems to solve to ensure workers’ freedom to organize and collectively bargain.
We do not know the full breadth of ideas that might be considered at this hearing. Generally speaking, we support reforms that allow workers to choose a union free from interference, deter unlawful conduct with meaningful remedies, move parties promptly to a first contract, protect concerted activity, raise wages and benefits, and improve health and safety. We oppose measures that chill workers’ organizing activity, promote misclassification of workers so as to strip them of all labor and employment rights, create free riders, curtail voluntary recognition or majority sign up, or make the already imbalanced NLRB election process even more imbalanced in favor of anti-union employers.
Moreover, this hearing is not occurring in a vacuum. While the Committee considers new labor policy, policies already adopted by the Congress are being illegally dismantled, harming the rights of millions of workers. For example:
● In his first week in office, President Trump illegally fired NLRB Member Gwynne Wilcox for “unduly disfavoring the interests of employers,” i.e., for in his opinion deciding too many cases in favor of workers. The firing destroyed both the Board’s quorum and its independence.
● He subsequently issued an Executive Order (“Ensuring Accountability at All Agencies”) in which he claimed that he and his attorney general would decide what the law means for all executive branch employees, including for the members and judges at the NLRB. The NLRB is the sole venue for workers to have their rights vindicated under the NLRA, and yet workers no longer have a guarantee of a fair hearing in light of the firing and this attack on judges’ impartiality, despite Congress having clearly established the agency’s independence.
● The President then moved to illegally dismantle the Federal Mediation and Conciliation Service, which assists both unions and employers in working through difficult labor negotiations, a direct assault on the very concept of collective bargaining to resolve labor disputes.
● Next, the President engaged in the single biggest act of unionbusting in American history by stripping one million federal sector workers of their collective bargaining rights. His agency heads have been busy cancelling signed union contracts since then. That March Executive Order and a subsequent Executive Order issued in August are illegal and unconstitutional, targeting workers and their unions for exercising First Amendment rights to challenge unlawful personnel policies like mass firings.
These various unionbusting actions undermine the Congress’s policymaking authority and effectiveness, not to mention cause great harm to working families and our fundamental rights. We urge the Committee to press back on these actions at every turn; otherwise, any policymaking you might undertake now is purely an academic exercise if the rule of law and structures that we count on to enforce our rights are so blithely ignored. For example, while outside your Committee’s jurisdiction, we urge the Senate to pass S.2837, introduced by Senator Mark Warner. This is the bipartisan companion to the House’s Protect America’s Workforce Act, to reverse the unionbusting Executive Orders and restore union contracts for federal workers.
Labor unions are a cross-section of America. Our members come from all backgrounds, all races and creeds, all industries and sectors, and all political parties. What our members have in common is that they work for a living and have joined together to exercise their bargaining power to press for a better deal. When workers are free to do that, good things happen – not just for them but for their communities and for the entire economy. We urge the Committee to use its policymaking power to better protect that freedom and encourage its robust exercise.
Thank you for the opportunity to submit this letter ahead of your hearing.
Sincerely,
Jody Calemine
Director, Government Affairs