THE NEW NLRA: America’s labor laws are fundamentally broken. Here’s one plan to fix them.
April 17, 2020 by Benjamin Kamelhar
by Grace Pezzella
Professor Sharon Block paused and looked across the auditorium. She had just told the hundred or so lawyers and law students, gathered to discuss the future of the American labor movement, that it was time to scrap the National Labor Relations Act and rebuild from the ground up. Nervous laughter ensued.
“If you’re going to have a fight, it might as well be for something big.”
The National Labor Relations Act (NLRA) is a cornerstone of the American labor movement. Conceived during an era of extreme labor unrest and violence, the NLRA created a means for “industrial peace” that helped stabilize the political economy. It also aimed to redress inequality of bargaining power, giving workers a fair shot at influencing their workplaces. Though the percentage of U.S. workers that are union members has dropped to 11.6%, the NLRA protects certain types of “concerted action” even in non-union workplaces and remains an important tool in combatting inequality.
But the NLRA is not perfect. The Act always excluded agricultural and domestic workers, creating a subset of American workers who have no statutory ability to vindicate their workplace rights. These exclusions are “well understood as a race-neutral proxy” for omitting black workers from protections extended to whites, and stem directly from the vestiges of slavery that propped up the Jim Crow-era southern economy. Unions, too, have a complicated history with racism; the National Labor Relations Board certified segregated unions well into the 1970s, and employers frequently enlisted black workers, who drew lower wages, as strikebreakers.
Another major problem with the NLRA is that the subsequent enactment of the Taft-Hartley Act in 1947 ripped out all of its teeth. By enabling states to pass “right-to-work” laws, which prohibit contracts that require union membership as a condition of employment, and banning mass picketing and secondary boycotts (wherein a union protests the supplier or customers of its primary target), Taft-Hartley shifted power away from unions and gave employers fresh tools to quash collective action.
The decline of unionization mirrors the rise of inequality in the U.S. due to wages remaining stagnant for the last forty years. This means that working people are now losing two hundred billion dollars annually as a result of union erosion, brought about in no small part by vehement corporate opposition and the now-standard practice of hiring “union avoidance consultants” at the first whiff of concerted activity. The Economic Policy Institute predicts that restoring the right of workplace representation to its full power will put at least two hundred billion dollars in the pockets of working families each year. But we may need a fresh start to achieve that goal.
Enter Professor Block and Clean Slate for Worker Power. Clean Slate is a project of Harvard Law School’s Labor and Worklife Program that aims for “a labor law capable of empowering all workers to demand a truly equitable American democracy and a genuinely equitable American economy.” The Clean Slate proposal argues that a simple restoration of the labor movement is insufficient; a framework born from deeply exclusionary policies is not the proper mechanism for addressing the relationship between discrimination and power. To achieve this goal, Clean Slate recommends extending coverage to domestic, agricultural, and undocumented workers, workers who are incarcerated and workers with disabilities, and independent contractors. Clean Slate’s members also suggest codifying a range of methods through which workers can vindicate their rights, including establishing workplace monitors and disciplinary representation, a “work council” in any workplace where at least three workers request one, and allowing unions to decide which groups of workers they intend to organize, either within a given workplace or across the enterprise.
Perhaps Clean Slate’s most transformative proposal is the call for sectoral bargaining, which would allow unions to bargain with an entire industry, not just a particular firm. Under the current “enterprise bargaining” model, firms are incentivized to fight unionization to avoid an economic disadvantage with non-union competitors. Since sectoral bargaining agreements would be binding on all firms and workers in a given sector, this type of reform has the potential to set standards for reducing income inequality, including racial and gender pay gaps, across large swaths of American industry. At least two former 2020 Democratic presidential candidates support sectoral bargaining; perhaps it is an idea whose time has come.
Income inequality in America is as stark now as during the Gilded Age. Simply, something’s gotta give. Perhaps the Clean Slate proposal—and, at very least, its ideals—is the big fight worth having.
 Michael L. Wachter, The Striking Success of the National Labor Relations Act, in Research Handbook on the Economics of Labor and Employment Law 427, 427 (Cynthia L. Estlund & Michael L. Wachter, eds., 2012).
 See Economic Policy Institute, State of Working America Data Library, “Union Coverage”, 2019; National Labor Relations Act, 29 U.S.C. § 157 (1935).
 Juan F. Perea, The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the National Labor Relations Act, 72 Ohio St. L.J. 95, 96 (2011).
 Id. at 96-97.
 Richard Rothstein, Senior Fellow (emeritus), Thurgood Marshall Institute of the NAACP Legal Defense Fund, Presentation to the Atlantic Live Conference, Reinventing the War on Poverty: Modern Segregation (Mar. 6, 2014); see also Warren C. Whatley, African American Strikebreaking from the Civil War to the New Deal, 17 Soc. Science Hist. 525, 526 (1993).
 Michael Hiltzik, Column: The key to union resurgence is repeal of the Taft-Hartley Act, L.A. Times (Oct. 29, 2019), https://www.latimes.com/business/story/2019-10-29/repeal-the-taft-hartley-act. Taft-Hartley also complicated the process by which a union is certified, among other measures.
 Heidi Shierholz, Weakened labor movement leads to rising economic inequality, Economic Policy Institute (Jan. 27, 2020, 3:18 PM), https://www.epi.org/blog/weakened-labor-movement-leads-to-rising-economic-inequality/.
 The Clean Slate Agenda, https://www.cleanslateworkerpower.org/clean-slate-agenda (last visited Mar. 9, 2020).
 Sharon Block and Benjamin Sachs, Building a Just Economy and Democracy: Executive Summary, CLEAN SLATE FOR WORKER POWER, https://www.cleanslateworkerpower.org/clean-slate-agenda (last visited Mar. 11, 2020).
 Id. at 2.
 Id. at 3.
 Brendan O’Connor, Elizabeth Warren’s New Labor Plan is Good. Bernie Sanders’ is Better, Vice (Oct. 4, 2019, 5:41 PM) https://www.vice.com/en_us/article/7×5799/elizabeth-warrens-new-labor-plan-is-good-bernie-sanders-is-better.
 Income Inequality, https://inequality.org/facts/income-inequality/#:~:text=Income%20disparities%20are%20so%20pronounced,1%20percent%20tower%20stunningly%20higher (last visited Apr. 11, 2020).