Would sectoral bargaining provide a better framework for American labor law?

Responding to
The Wagner Act’s Original Sin
Sectoral Bargaining’s Promise and Peril
With Labor Power Will Come Labor Responsibility
The Long and Winding Road to Reform
Economic and Political Bargaining Both Depend on Trust

Dear David,

I thought you made an especially important point about how America might make progress on these issues when you observed, “it’s certainly easier to trade with a trusted negotiating partner, and very hard to trade with a counterpart when you’re pretty sure they’re just trying to kill you.” One facet of the institutional infrastructure needed for sectoral bargaining to work well in this country, or anywhere, is some level of trust between the sides doing the economic bargaining. But before we can make progress on such infrastructure, we are going to need some level of trust between the sides doing the political bargaining over its creation.

The challenge has been made painfully clear to me from the widespread skepticism on the left-of-center to American Compass’s work on the topic—this, from The New Republic, was probably my favorite:

And while American Compass–style conservatives might say they support the “reform and reinvigoration of the laws that govern organizing and collective bargaining,” their approach to strengthening labor—which they seem to envision as a means to restoring a traditional social order, rather than a check on the power of capital—also has clear limits. According to Kate Bronfenbrenner, the director of labor education research at Cornell University’s School of Industrial and Labor Relations, conservatives’ efforts to shore up labor often simply amount to “worker management strategies” designed to defang labor militancy. “Are they pro-worker, or are they just worried that we might get a labor movement that’s even more militant?” she asked.

If American Compass is actually a clever, false-flag operation to retrench capital’s power… well, I’m not sure we’re doing a very good job of it. Still, skepticism from the left is fair enough. The right-of-center’s priorities, rhetoric, and political strategy in recent decades makes that skepticism well earned. Hopefully, efforts like “A Seat at the Table” are a positive step.

Conversely, we have heard from the right-of-center a variety of responses along the lines of, “Are you crazy? Unions are just part of the Democratic Party and always will be.” Also fair enough. The long-running obsession with “card check,” as if a true commitment to “employee free choice” demands elimination of the ballot box, has made the entrenchment of political allies in Big Labor appear a far higher priority than actual attention to workers’ interests. Also, that thing with the giant inflatable rats outside law-abiding businesses has lacked a certain je ne sais quoi. But the willingness of some former labor leaders, yourself included, to acknowledge some the movement’s own excesses and back serious reform is likewise an important confidence building step.

In our imagination (and on The West Wing), it’s the visionary grand gesture or grand bargain that breaks the impasse and delivers all parties to the promised land. In real life, attempts at such things—particularly as a starting point—invariably fail and typically yield further recriminations and mistrust. Rather, it’s through the hard and unglamorous work of confidence-building measures and successful trials that actual progress occurs. This is as much a function of intra-party dynamics as inter-party ones, the fear as much about exposing one’s flank to hardliners as getting take for a ride by the other side.

Beginning with a Single Step

Supposing this baby actually has the balance to stand, what steps might he take? I have an aversion, perhaps allergic but I think well-founded, to blue-ribbon commissions and summits. Your other suggestion of a framework for state/local experiments is promising, and you’re right to note especially the prospect for a red-state governor (in states, I would add, where traditional labor is less entrenched) to partner with labor and business leaders on a sector-specific strategy in a low-wage industry.

I also think you’re right to highlight industries not covered by the National Labor Relations Act. Agricultural, domestic, and gig workers all lack coverage for a variety of historical and logistical reasons—some outright discriminatory, but also as a consequence of their industrial organization aligning poorly with the Wagner Act’s enterprise-level bargaining framework. Of course, it’s many of those same organizational dynamics that make them ideal candidates for a sectoral approach.

Two elements of such a framework that I think would be nonnegotiable from the conservative perspective are:

(1) Organizations representing workers must be precluded from funding or conducting overt political activity. As you note, such a rule “has ample precedent in other types of U.S. non-profit organizations, where affiliated but separately incorporated entities serve different charitable, social, and political functions.” American Compass and all 501(c)(3) non-profits face similar restrictions—indeed, that set of restrictions could be borrowed directly. The Right obviously has a political objection to creating yet another set of partisan labor organizations, but an equally important nonpartisan principle is at stake: if we are going to vest an organization with public authority and benefits, and likely public funds, it cannot turn around and use that power and funds to influence elections.

(2) Waivers and flexibility must apply to both labor and employment law. We’ve discussed the ways that sectoral bargaining might conflict with the NLRA and so exemption from its terms is a technical necessity. But equally important, sectoral bargains must be allowed to depart from most of the defaults established by federal and state employment law where collective bargaining has not occurred. This again has both political and substantive dimensions. Of course, deregulation tends to be a generic right-of-center priority. But here, much of the rationale for an aggressive government role is that workers are unable to protect and advance their own interests individually. Where a robust collective-bargaining mechanism is in place, that rationale vanishes. Further, one of the major dysfunctions of our existing system is that with the workplace already micromanaged by regulation, bargaining gets channeled in less productive directions. A key premise of reform should be that bargains can replace and tailor, not merely supplement, what the Department of Labor may have said.

I genuinely believe that federal legislation inviting states to submit plans that specify a sector and the parties therein to be brought to the table on these terms would have a chance to succeed. Could we come up with stories of how one side of the other would exploit this for their own gain at the other’s expense? Of course. But those costs are limited, and the risk is worth taking. If, rather than merely exploit such a framework, the various sides showed that they considered it in their interest to advance it, and if the results were promising, well then we’d be moving.

The Journey of 1,000 Miles

Where would we be moving? Generally speaking, a process by which a sectoral bargaining regime expands, crowding out the NLRA as it goes, strikes me as entirely plausible, provided those same two conditions hold: parties to the bargaining process must be economic but not political actors, and employment regulation is subject to whatever bargains are reached.

As our participating institutions become more confident, I also think there might be many more things for them to do. We’ve been focused in this discussion on unions as bargaining agents, but as Wells King points out in his report on “Workers of the World,” that’s only one of the three functions an effective labor movement might perform. Sectoral bargaining would open the space for a broader, more collaborative role in workplace governance at the local level that both workers and employers would value. And unions as agents in civil society, rather than organized clusters in specific workplaces, would be a natural provider of social insurance and workforce training.

You raised the question of right-to-work, which is an interesting one that deserves further discussion. Right-to-work in a sectoral context presumably makes sense in that we wouldn’t want to mandate dues payments from everyone economy-wide. And we wouldn’t want employers to discriminate either toward or against union members. We would want union membership to bring with it benefits. Regardless, I think you’re right that an appealing tradeoff exists where broader coverage and institutional strength can bring with it greater individual freedom.

And then finally is the question of private- versus public-sector. I must say, at least in my reading, thou doth protest too much at my suggestion that a weakening of public-sector worker power should accompany a strengthening in the private-sector. As I noted in introducing the FDR quote, the interesting thing is not that it is Roosevelt speaking but because it is Roosevelt speaking we get an argument that “so clearly puts aside partisan assessments and offers a logical one.” Certainly, there are many other things that Roosevelt was right and wrong about, but in this case his argument has to be engaged on the merits.

I return to this issue not because we’re going to resolve it here—especially seeing as we’ve reached the end of our exchange—but to highlight the role it will invariably play in future reform and the grappling that progressives will have to do amongst their priorities. Of course, conservatives face comparable challenges. But I at least hopeful that the interests of actual workers are receiving more attention than they have in a long time.

Thank you again for participating in this exchange. I look forward to continuing to discuss all this, though our readers will not have the benefit of following along. And I presume our readers look forward to not having any more that they have to follow along with.

Concluding Collectively,

Oren Cass

Oren Cass
Oren Cass is the executive director at American Compass.
Recommended Reading
Economic and Political Bargaining Both Depend on Trust

Would sectoral bargaining provide a better framework for American labor law?

Would Sectoral Bargaining Provide a Better Framework for American Labor Law?

Labor leader David Rolf and American Compass’s Oren Cass discuss the potential for sectoral bargaining in America.

With Labor Power Will Come Labor Responsibility

Would sectoral bargaining provide a better framework for American labor law?