Protecting the Freedom to Form Labor Unions

The past thirty years have seen a marked decline in job quality for a substantial portion of the U.S. workforce: stagnant wages, shrinking health benefits and less job security. While a number of factors explain this decline, there is little question that the decline in the strength of labor unions in the US has played a major role.

In the post-World War II period, union membership in the United States has fallen from one in every three workers to about one in eight. While the federal government has the major role in regulating labor unions, reversing this decline in the freedom by workers to form unions has also become a major focus for state legislators concerned about raising wage standards in their states.

What States Can Do: While courts have occasionally restricted state power in this area, a recent decision by the Ninth Circuit US Court of Appeals, Chamber of Commerce v. Lockyer, has signalled that states have more room for action to protect workers rights than opponents have tried to argue. After California enacted AB 1889 in 2000 that prohibited companies receiving state funds from misusing that money to undermine the freedom of their employees to form unions, the state Chamber of Commerce and other groups blocked implementation of the law in the courts for years. But last September, a full panel of the Court of Appeals ruled that states had full authority to control misuse of public funds that undermines labor rights.

As this Dispatch will detail, this decision adds to a range of other policy tools that states and local governments are using to strengthen employees' freedom to form unions. These tools include:

  • Protecting the freedom of public employees and workers paid through public contracts
  • Protecting employees with little protection under federal law
  • Expanding free speech in the workplace

The Dispatch will also highlight how workers and regional economies would benefit from strengthening worker freedom to form unions.

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Protecting Public Employees and Workers on Public Contracts

One clear way for states to act is to use their control of public money to make sure workers directly employed by state governments or those working for employers receiving public contracts have their freedom to form unions protected.

  • For existing public employees, states like New York, California, Massachusetts and New Mexico have created simpler "card check" systems to recognize unions for workers whenever a majority of employees in a unit sign cards requesting recognition.
  • Fair Share Statutes laws promote stronger public employee unions by allowing them to collect "fair share" fees from state employees for negotiating contracts and representing employees in grievances and arbitration, whenever a majority of employees in a unit vote for such a system.
  • To protect employees of government contractors, California's AB 1889 and similar bills in other states prevent those contractors from using public money to undermine union rights.
  • More directly, a number of communities and states use Project Labor Agreements on public work projects that require a combination of union contracts and no-strike clauses to assure that workers are treated well and public projects are not disrupted by strikes.

States pay hundreds of billions of dollars to their own employees and to government contractors-- and they can make sure that those dollars expand worker freedoms rather than undermine them.

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Protecting Workers with Little Protection under Federal Law

Many categories of private sector workers, including farmworkers, domestic workers, and independent contractors are excluded altogether from protection under federal labor laws, so states have the power to extend union protection to these employees. An important new reform in a number of states is extending labor rights to workers like child care and home health care workers, who are often treated as independent contractors without union protection.

  • California's labor law protecting agricultural workers was an early precedent for expanding labor rights to those without federal protection, a law which was strengthened a few years ago with new amendments.
  • During the last decade, California, Washington and Oregon extended union rights to home health care workers.
  • In 2005, Illinois Governor Rod Blagojevich signed an executive order to allow 47,000 day care workers to organize themselves into unions and collectively bargain with the state on behalf of those workers. New York and Washington State also have passed laws to protect union rights for day care workers.
  • A "Domestic Workers Bill of Rights" (A2804) proposed in New York would have brought domestic workers under the protection of state labor law.

Along with protecting such excluded employees, states like New York (see Sec. 592) allow all striking employees to qualify for unemployment benefits, while others like Illinois grant such benefits when employers lockout employees during a labor dispute -- key reforms to give employees struggling to assert their rights a chance.

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Expanding Free Speech in the Workplace

State laws that protect workers from retaliation for speech in the workplace or strengthen their ability to talk to other employees and the public help encourage them to work collectively to raise their wages and improve working conditions:

  • Florida’s state minimum wage law, the city minimum wage laws in San Francisco and Santa Fe, and many living wage laws across the country include free speech protections for employees who educate other workers about their rights under those laws.
  • California law prohibits discrimination against workers by their employers based on an employee's political beliefs.
  • The Colorado legislature last year approved a law (vetoed by their governor) which would have protected workers against being coerced to attend employer-controlled forums related to religious, labor and political matters
  • A number of states have whistleblower laws or False Claims Acts to protect employees against retaliation for speaking out about illegal activity or threats to the public by their employer.

Some states and local governments are also reclaiming lost civic space by opening up malls and other large retail store areas for free speech activities. These measures, plus others that give workers advocates more access to employer property, help increase employee education about their rights to form unions:

  • Such laws follow the longtime precedent of laws like California's agricultural labor relations law which gives non-employee organizers access to private farm fields to talk to workers. (See §20900 of the CA Agricultural Labor Relations, Solicitation by Non-Employee Organizers regulations).
  • States including California, Colorado and New Jersey require mall owners to give union organizers, as well as others, access to sidewalks, parking lots and interior public spaces.
  • The City of Hartford in 2004 enacted a law giving the general public access to outside areas of retailers located on government-owned property.

Free speech is the core of the freedom needed to form a union, so any state steps to protect such free speech can only strengthen labor rights.

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Strengthening Unions Strengthens Local Economies

The reason states should take these policy steps is that strengthening the freedom of workers to form unions can play an important role in raising wages and actually improving regional economic performance. Despite myths that unions undermine the economy, studies show that unions benefit not only the unionized workers themselves, but other workers in the region and the overall economy.

Higher Wages for Union Workers: It's well known that union workers make significantly more than non-union workers overall. With benefits and wages, unionized workers are estimated to make 27% to 32% more than non-union workers in similar jobs.

Unions Reduce Wage Inequality: Women in unions make more than men in non-union jobs, while not only do African American union members earn 31 percent more than their nonunion counterparts, they make as much as whites in nonunion jobs. Latinos have the largest union premium of any group, with Latino union workers making 50% more in wages than their non-union counterparts.

Increasing Wages for Non-Union Workers: Strengthening unions also increases pay and benefits for non-union workers by setting a pay standard for nonunion employers to follow. The Economic Policy Institute, a think tank that has surveyed a range of studies done in this area, estimates that in industries where at least 25% of the workers are unionized, non-union workers with high school degrees see a 5% increase in wages compared to nonunion workers in completely non-union industries.

Unions Raise Incomes and Tax Revenues in Heavily Unionized States: States with stronger unions have higher wages for their residents. A survey comparing wages over fifty years found that states with a high percentage of unions versus those with low union density had systematically higher wages. And because workers in non-union jobs use more public benefits than workers in union jobs, strengthening unions eases the burden on state and local governments of providing health care and other social services to the working poor.

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Rewarding Work


If states are going to end the wage stagnation of the last few decades, taking steps to strengthen the freedom of workers to form unions has to be front and center in those efforts. And the result will be not just greater dignity for the workers themselves, but a stronger local economy and fewer workers needing public benefits just to survive.

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