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Could labor finally get its day?

The Workplace Democracy Act has yet to gain traction in Congress, but if passed it would shatter the employer-employee dynamic in Madison.

(page 2 of 5)

According to a fact sheet provided by Pocan’s office, the WDA would:

  • Allow for unions to organize through a majority sign-up process, allowing the National Labor Relations Board (NLRB) to certify a union if it receives the consent of the majority of eligible workers.
  • Enact “first contract” provisions to ensure companies cannot prevent a union from forming by denying a first contract. Employers would be required to begin negotiating within 10 days of receiving a request from a new union. If no agreement is reached after 90 days of negotiation, the parties can request to enter a compulsory mediation process. If no first contract has been reached after 30 more days of mediation, the parties would have a contract settlement through binding arbitration.
  • Eliminate the right-to-work laws by repealing Section 14(b) of the Taft Hartley Act, which has allowed 28 states to pass legislation eliminating the ability of unions to collect fair share fees from those who benefit from union contracts and activities, undermining the union’s representation of workers.
  • Expand the definition of employer to ensure employers can no longer avoid responsibility and prevent workers from organizing by designating certain workers as independent contractors, supervisors, or through franchisee arrangements.
  • Allow for secondary boycotts and picketing, reinstating a union’s freedom of speech to take action to pressure clients and suppliers of companies opposing unions.
  • Expand and update the persuader rule. Companies would be required to disclose anti-union information they disseminate to workers, including funding third party anti-union consultants who would have to register and be law abiding. Whatever contact information (email, phone, mailing addresses) the employer uses will need to be shared with union organizers, and employers will be prohibited from forcing workers to attend campaign activities that are unrelated to the employee’s job duties.

To be sure, it’s a worker-friendly piece of legislation, at least according to Pocan, Baldwin, Sanders, and the rest of the WDA’s supporters.

Opponents, on the other hand, paint a different picture.

The U.S. Chamber of Commerce, which bills itself as the world’s largest business federation, focused on policies that create jobs and grow the economy, called the re-introduction of the WDA, “the ghost of labor reforms past.”

However, in a response to Pocan and Sanders on May 9, the U.S. Chamber stated its belief that the legislation is far more dangerous than the Employee Free Choice Act of 2009, a similar piece of legislation regarding pension fund management. “For example, it includes language that would codify in federal law a strict new definition of independent contractor imposed in California by the state Supreme Court. This stringent, three-factor test could make using independent contractors difficult, if not impossible, for many tech companies, gig economy firms, and startups.

“The Workplace Democracy Act would also repeal right-to-work in all states, thereby overriding laws passed by 28 states. It would also codify the NLRB’s joint employer ruling, putting any two companies with a contractual relationship in jeopardy of being jointly liable under the NLRA.”

Where advocates of the WDA argue that it will improve conditions for workers, opponents point to each of the provisions as harbingers of doom that will make doing business much more difficult, if not impossible, if it gets passed.

The arguments against the WDA, as stated by the U.S. Chamber, are:

  • Unions could be certified based solely on signed cards instead of a secret ballot election — the infamous “card check” provision. The WDA also includes a binding arbitration provision that would force employers to accept contracts mandated by arbitrators.
  • By repealing right-to-work laws, workers in all 50 states would have to pay union dues, whether they want to or not.
  • It would codify the California Supreme Court’s Dynamex Decision, which articulated a three-part test for when a worker can be classified as an independent contractor. This decision could hit the tech sector, startups, and “gig” economy companies especially hard.
  • It also codifies Browning-Ferris (BFI), which replaces a “direct control” standard for determining joint employer liability with an “indirect control” or “potential to control” test. Under this new standard, thousands of employers could face liability for workplaces they don’t manage and workers they don’t employ, which primarily affects franchisors.
  • It gives unions a license to launch disruptive protests and pickets at businesses that have no involvement with unions.
  • Employers would be prohibited from requiring employees to attend on-the-clock meetings where the employer can explain their position on unionization.

“This bill does nothing to protect freedom of choice, promote education, or provide privacy to employees making personal decisions about workplace rights,” says Callie Harman, director of labor and employment policy for the National Association of Manufacturers. “It would reclassify many independent contractors and entrepreneurs as employees — limiting an individual’s opportunity to have a more flexible work schedule and personal autonomy. The bill would also eliminate ‘secondary boycott’ protections, codify ambush elections, and undermine attorney-client confidentiality.”


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