On this Labor Day, more than any in recent memory, there is widespread bipartisan support in Congress and across America for the right to be in a union.
Unions are as popular now as they have ever been and they’re even receiving support from Republicans in Congress like Missouri Sen. Josh Hawley. Yet the labor law that’s currently on the books — the Wagner Act of 1935 — isn’t strong enough to protect workers who want to unionize.
The basic problem is straightforward: Employers don’t want their workers to unionize and are generally willing to fire union supporters to stop a union drive. That means that trying to form a union means risking your job, which is a risk that most workers rationally don’t want to take. That’s especially true when the law is too weak to provide recourse to pro-union workers who do get fired.
The share of workers who are in a union is below what it was before we had any labor laws.
The combination of hostile managers and weak labor laws equals very low unionization rates — in fact, the share of workers who are in a union is below what it was before we had any labor laws. These low union rates account for a great deal of the economic and political inequality that plagues American life.
Building a labor law that actually enables workers to form unions requires a lot more than tinkering with the existing systems. Regardless of party, lawmakers who are serious about making sure workers have a clear path to joining a union need to support reforms more fundamental than any we’ve seen since the New Deal.
These changes would take a two-step approach to tackling the root problems with organizing a union. First, make it easier for workers to unionize and win a collective bargaining agreement even if their employers oppose those efforts, and second, reduce the incentives for employers to fight union organizing drives in the first place.
To accomplish the first goal, Congress must increase penalties on employers that fire pro-union workers, limit employers’ ability to engage in union busting, and change the rules of collective bargaining to make it more likely that workers can win a contract. Many of these proposals are contained in the Protecting the Right to Organize (PRO) Act, which passed the House twice when Democrats last controlled the chamber, but has languished in the Senate.
Passing the PRO Act is just the start, however. One powerful idea would be to “flip the default.” Rather than assuming (as we do under current law) that workers want to be nonunion, we could start with the equally plausible assumption that workers want to be union. In such a system, we’d still hold union elections. But, like in politics where voters choose between representatives, workers would vote on which union they want to represent them not whether they want representation. And to ensure real freedom of choice, workers could run organizing campaigns to get rid of union representation altogether — if that’s what they prefer.
Labor law can also help reduce the reasons employers oppose unionization in the first place by changing the way unions and employers bargain contracts. Currently, workers in the U.S. who want to form a union must do so at their individual workplace or their individual employer. For example, if McDonald’s workers want a union, they’d have to organize one at a single McDonald’s restaurant. But if that McDonald’s is the only fast-food restaurant in the area to be unionized, then it likely would need to pay its workers more in wages and benefits than its local competitors.
Finally — and here there may be less bipartisan agreement — we need to shore up unions’ ability to act politically.
But in many developed economies, unions organize and bargain across an entire industry, not individual businesses. In this sectoral bargaining regime, no firm in a market is disadvantaged by being union because every firm in the market is covered by the union contract. Thus, no firm needs to see their workers’ organizing as an existential threat to their ability to compete.
Labor law reform, moreover, can’t just be about private sector workers, especially given the critical role that public employees have played in the labor movement. Congress therefore needs to fix a loophole in our laws that President Donald Trump has exploited to weaken federal unions. Using what was supposed to be a narrow exception for workers on the front lines of national security, Trump has denied almost 1 million federal employees collective bargaining rights. Any new labor law reform should include a new and clearer exception that is limited to just those workers traditionally excluded from the federal sector collective bargaining system — those working for the CIA, NSA, DEA, subdivisions of the Defense Department and the Treasury, and other employees in the intelligence field. Speaking of the president, earlier this year, Trump fired National Labor Relations Board member Gwynne Wilcox, a Joe Biden appointee, years before the end of her term. When Congress created the board in 1935, it assumed that the board would be an independent agency, but an NLRB populated by appointees serving at the pleasure of the president is a different animal. The Supreme Court’s conservative majority has consistently granted Trump the power to jettison the independence of agencies like the NLRB (defying decades-old precedent). New labor laws must address these implications. While it’s unclear what form a federal labor authority should take in this new context, future reform should consider alternatives — such as granting workers a private right to sue employers — so they’re not dependent on a politically biased agency. Finally — and here there may be less bipartisan agreement — we need to shore up unions’ ability to act politically. Without unions working as political actors, American workers would not be protected by minimum wage and overtime laws, antidiscrimination laws, or health and safety laws, nor would they enjoy the legal right to time off from work for family and medical emergencies. Unions secure these bread-and-butter protections for American workers through collective bargaining, yes, but also through electoral politics. And in a political system awash in corporate money, it is shortsighted to think that unions can do their job exclusively through collective bargaining. As Justice Felix Frankfurter wrote more than 60 years ago, the political activity of unions is “activity indissolubly relating to the immediate economic and social concerns that are the raison d’etre of unions.” Across party lines, Americans support unions. If Democrats in Congress continue to stand up for labor rights, then it would only take a handful of Republicans to create the majorities needed to pass the reforms outlined in this piece. If Republicans are serious about supporting workers and their unions, then they need to stand up and address the root causes of the current system’s failures. For years, lawmakers on both sides have promised to fight for the working class. But words are not enough. Now is the time for action.
Sharon Block
Sharon Block is a professor of practice at Harvard Law School, and the executive director of the Center for Labor and a Just Economy. She is a former member of the National Labor Relations Board.
Benjamin Sachs
Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School. 
