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The Good and the Bad of Bernie Sanders’s Labor Plan

Bernie Sanders’s Workplace Democracy Act would be a major step forward for the labor movement. But what the movement needs most isn’t stronger government support for unions — it’s greater freedom for workers to strike.

Democratic presidential candidate Sen. Bernie Sanders speaks during the Democratic Presidential Committee (DNC) summer meeting on August 23, 2019 in San Francisco, California. (Justin Sullivan / Getty Images)

The Bernie Sanders presidential campaign presents socialists with an unprecedented opening for explicitly socialist politics. And Sanders’s Workplace Democracy Plan (WDP) represents a coherent set of policies through which to pursue that opportunity. Labor scholar Barry Eidlin calls the plan the “most serious, comprehensive, and equitable plan for promoting workers’ rights ever proposed by a major US presidential candidate.” If the Sanders campaign and the WDP do represent such an opportunity, then surely socialists should use it for maximum effect. With that in mind, let’s talk about the ways that the WDP could be pushed in a more socialist and rank-and-file direction.

Let’s be honest: Sanders’s WDP is in part aimed at securing endorsements from union officials. That’s not necessarily a bad thing. Despite their reduced numbers, unions still have the ability to generate votes. Union households turned away from Hillary Clinton in 2016, helping deliver the White House to Trump. AFL-CIO president Richard Trumka has said, “We’re setting the bar high — higher than it’s ever been.” Trumka continued, “If you want our endorsement . . . show us that you’re unambiguously pro-worker and pro-union.” Securing union endorsements would represent no small step toward putting Bernie Sanders in the White House, and that would be a good thing.

At the same time, a fundamental tenet of the “rank-and-file strategy” recently adopted by the Democratic Socialists of America (DSA) is to build the “militant minority” on the shop floor, not to “permeate” the upper echelons of the union officialdom. This strategy recognizes that, although the union leaders should represent their members’ interests, bureaucratic organization and imperatives often create a divergence between the interests of leaders and “the ranks.” The fact that the WPD is pitched in part to the union leadership thus warrants examining it with a somewhat more critical eye.

In a recent essay, I wrote about how socialists should approach the issue of labor law reform. The bottom line is that we have to pay attention to the form, not just the content, of labor law. For example, specific legislative provisions establishing rights protective of workers have often ended up being used, in statute and case law, to deprive workers of the freedom to engage in a variety of strike actions. My conclusion was that we should be wary about labor rights, which effectively substitute state power for worker power, and focus more on expanding labor freedoms. This does not mean that we should categorically eschew all labor rights — something that would be impossible as well as self-defeating under capitalism — nor that we can somehow free ourselves from the confines of labor law under actually existing capitalism. What it means concretely is that we should prioritize eliminating the various prohibitions on strikes that exist in current labor law and that stifle autonomous working-class organization and formation. In what follows, I apply this perspective to the WDP.

The Good

Let’s start with the good of the WDP. At the top of the list are the provisions that expand workers’ freedom to strike. The best idea of the whole proposal is its elimination of the ban on secondary boycotts. Federal law currently outlaws actions — and even speech by workers and unions — that pressure customers or suppliers (“secondary” actors) of companies with whom they have a “primary” dispute. Perhaps no other provision of US labor law has done more to inhibit coordinated action by workers across companies and to create a fractured and weak labor movement. The WDP would also legalize the right to strike for federal workers.

More complicated is the plan’s promise to ban the permanent replacement of striking workers. There is no doubt that the use of permanent replacements has substantially weakened the power of the strike. But the real problem is not so much the employer’s right to hire permanent replacements. It’s labor law’s effective banning of mass strikes and mass picketing. Section 8(b)(1) of the National Labor Relations Act (NLRA) prohibits workers from interfering with other workers’ rights not to join or assist labor unions. While on its face this language is neutral, in practice it essentially guarantees that employers get a police escort for scabs. A better proposal to rebuild direct worker power would be to repeal Section 8(b)(1) rather than to ban permanent replacements. This would limit the ability of the state to step in on an employer’s side in a labor dispute.

Another notable positive is the plan’s call to “work with the trade union movement to establish a sectoral collective bargaining system that will work to set wages, benefits and hours across entire industries, not just employer-by-employer.” The current, dominant practice of firm-level or workplace-level collective bargaining is another chief source of labor’s strategic weakness, and is the result of a long and tortured trade-union and government-policy history. Countries with sectoral, or broader-based, bargaining have lower wage inequality and often (although this isn’t guaranteed) stronger labor movements. Sectoral bargaining prevents a “race to the bottom” in union standards and pay, which is not only good for workers but also builds solidarity and a broader, class-based consciousness. A plan to move collective bargaining to a sectoral level would be a very good thing.

On the other hand, the WDP is extraordinarily vague about what its vision of sectoral bargaining looks like. The bullet point says the plan will “[c]reate a sectoral collective bargaining system with wage boards to set minimum standards across industries.” It’s not clear if wage boards are the sectoral collective bargaining system or if they will come in addition to it, as a “minimum” backstop. The main concern here is that wage boards are less sectoral collective bargaining and more sectoral government wage setting. We should be skeptical of any proposal that further distances the determination of working conditions from workers themselves or the organizations that are closest to them, i.e., unions.

Other very good parts of the plan include the more directly economic proposals, such as those to protect pensions and provide a fair transition to Medicare for All. I will not say more about these here, except to point out that Sanders is, very savvily, seeking to avoid the conflicts with unions that arose under the Affordable Care Act with the so-called “Cadillac” health-care plans.

The Bad

Now let’s turn to the bad. The first two bullet points of the Sanders plan are a replay of Obama’s abandoned Employee Free Choice Act and represent the union leadership’s preferred model of labor law reform. The first point would permit union “certification” by the government conditioned on the union’s obtaining a majority of signed authorization cards. Current practice requires a union to receive a majority of votes in a National Labor Relations Board–supervised election, a process fraught with employer interference and legal-bureaucratic delay. But the more fundamental problem is the government’s supervision of this process, not the method by which unions are selected by workers. Because a government-controlled process for union recognition exists, labor law (in Section 8(b)(7)) bans the use of strikes by employees where the objective is to organize, demand recognition, or bargain with an employer. This puts workers at the mercy of a bureaucratic process outside their control. The existence of any such process should be objectionable to socialists. Simply changing the specifics of the bureaucratic method of selecting (or not) the union will do little to alter this relation of dependency. It would be better to remove the ban on strikes to organize or demand recognition so that workers could control the process themselves.

The plan’s second provision calls for a guaranteed “first contract” through compulsory mediation or, failing that, binding arbitration. This too was a central feature of the Employee Free Choice Act, and, like so much else in current or proposed labor law, it contemplates substituting government action for worker action. The main reason why it is so difficult for unions to achieve a first contract, even after workers have voted in favor of a union, is because current labor law goes out of its way to substitute bureaucratic process for worker power, as illustrated above with the union recognition process. Since rank-and-file action plays so little role in the recognition stage of union formation, it’s no wonder that employers are so willing to resist unions at the bargaining stage. Compulsory mediation and binding arbitration won’t fix any of this. These proposals are fantastic, however, for a union leadership that wants to free itself from being dependent on a source of power that flows from workers themselves. If workers are free to strike for union recognition, they will also have the power to strike for a first contract.

A number of provisions are harder to characterize as either “bad” or “good.” Companies that merge should certainly be required to honor existing collective agreements, but this problem will largely be solved if we move to a genuine system of sectoral bargaining, which requires all firms in an industry to abide by the sector agreement, regardless of a specific contractual relationship or history between a union and a firm. The same goes for employers using franchising and subcontracting to avoid responsibility and liability. The provision to provide for termination only for “just cause” is likewise ambiguous. “Just cause” was the practice for decades (and still is) under the US tradition of workplace-level bargaining. Although it provides some security to the worker, it does so by binding the workers’ fortunes with those of the firm, splintering working-class consciousness. “Just cause” also tends to favor labor market “insiders” over “outsiders,” those with the means and ability to enforce such provisions, further stratifying the labor market, often along lines of race, gender, and other identities. A federal job guarantee and more adequate funding for unemployment insurance would be a better way to provide security in the labor market. Not only would these alternatives reduce workplace sectionalism, but by tightening the labor market, they would also embolden workers against the power of the boss.

The WDP also calls for extending labor rights to historically excluded workers, like domestic workers. Whether this is a good thing depends on whether the above-mentioned changes are made. For example, excluded or misclassified workers do not receive the protections of the NLRA, but they are also not subject to the secondary-boycott ban. Finally, I also have misgivings about the elimination of “right to work.” There is no doubt that the assault on union security is meant to crush what remains of the labor movement. But unions in most other parts of the world, including virtually all of Europe, long ago abandoned union-security agreements. In fact, union security is part-and-parcel of the United States’ narrow and self-defeating model of workplace-level bargaining.

Conclusion

Sanders’s Workplace Democracy Plan represents a bold break with past labor law. Instituting sectoral bargaining, eliminating the ban on secondary boycotts, pushing back against the use of permanent replacements (in whatever form)—these would be solid, concrete, and crucially important steps forward, remarkable in the context of contemporary US politics if ever implemented, even partially. But analyzing labor law reform through a socialist perspective requires that we think beyond whether this or that labor law rule favors workers or not. We also need to think about how and by whom those rules are enacted, administered, interpreted, and enforced: by the capitalist state or by workers and their institutions themselves?

Thus, Eidlin only gets it half right when he says that Sanders’s plan, by being unambiguously pro-worker, goes beyond the view of the “state as an ostensibly ‘neutral’ arbiter to balance labor and management’s competing interests.” The truth behind the illusion of state neutrality is not that the state always takes one side or the other when it comes to the class struggle. Rather, it is that the capitalist state, on balance, systematically favors the interests of capitalists. As a result, “the working class cannot simply lay hold of the ready-made state machinery, and wield it for its own purposes.” Unless that principle is adhered to, we may get labor rights, and these may benefit the working class in material ways, but they will be fundamentally limited because they will be rights interpreted and enforced by the capitalist state, unable to transcend the logic of capitalism itself.

We need to allow workers as much space as possible to create, interpret, and enforce their own version of labor relations, and this can be done by emphasizing, but also going beyond, the best parts of the WPD: give back workers the freedom to strike.