by David Tannenbaum, law clerk for Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals
In a study this year by the Pew Research Center, two-thirds of the public said that "labor unions are necessary to protect the working person." But the conventional wisdom has long been that unions are dying, and it is not clear what role law has to play in saving, or justifying, what many regard as an anachronism in a market economy.
Benjamin Sachs, a fellow at Yale Law School, describes in the new issue of the Harvard Law & Policy Review how states, municipalities, employers, and workers' organizations have revitalized labor law by subverting our national labor law regime.
The seventy-two year old National Labor Relations Act (NLRA) suffers from several crippling pathologies: it fails to protect workers' ability to choose collective representation, puts employers and workers into unnecessarily rigid and adversarial positions, and leaves out some of the country's most vulnerable and exploited workers.
Sachs identifies three strategies that have successfully overcome the NLRA's shortcomings. All three show how workers' organizations are reinventing labor law by a "hydraulic demand for collective action" born of necessity.
First, unions have agreed with employers to opt out of the NLRA completely, and instead follow privately negotiated rules that serve as temporary legal regimes tailored to the needs of local workers and employers.
For example, in Houston, the Service Employees International Union (SEIU) lined up religious and political leaders to convince the city's major cleaning contractors to sign an agreement to take a neutral stance during an organizing drive. In return, the union agreed not to bargain with any single employer until it organized the majority of a pre-defined labor market. This provision alleviated employers' economic concerns because bargaining began only after the majority of competitors' employees were included in the union.
The result was the unionization of 4700 Houston janitors and an agreement that will double employees' paychecks over the next two years, one of the largest ever organizing successes in the South. The strategy has worked in other cities, with agreements tailored to local conditions.
Second, states and municipalities have created their own legal regimes to fill the NLRA's gaps. California, for example, formed county-level entities to employ home care workers who would otherwise face the impossible task of bargaining with the individual households that employ them.
Finally, labor organizations seeking to protect workers in the early stages of collective action have turned to statutes originally designed to protect individual rights that offer stronger protections to workers than the NLRA.
The most prominent example is the use of the Fair Labor Standards Act (FLSA) by Brooklyn garment workers who sought statutorily-mandated overtime pay, without the protection of a union. The workers' leader was quickly fired, and if she had pursued protection under the NLRA it is likely that it would have taken over two years to get her job back. Instead, her lawyers sought relief under FLSA, and secured a temporary restraining order that got her back on the job within nine days. The reinstatement assured fellow employees that attempting to secure higher wages through collective action was not a sure route to martyrdom.
The strategies identified by Sachs may bedevil liberals and conservatives alike, but this is one of the reasons why they are so practical.
Liberals may find themselves balking at the idea of devolving labor law-making to the local level, remembering that unions sought a centralized regime because the states once provided so little protection. Sachs borrows from the theory of "democratic experimentalism" to suggest that we take the good part of localism, the ability to experiment, and combine it with the advantage of centralization, the ability to set national standards. States would implement different regimes to meet these standards, and the federal government would promote best practices developed out of these experiments.
Sachs also shows convincingly that the centralized labor regime is so broken at this point that workers have already moved on, whether policy makers think they should or not.
Conservatives will continue to question the economic wisdom of unionization, but it will be harder for them to do so when more of the rules are set by private negotiations. Sachs's description of how employers and workers have turned a conventionally adversarial process into a more cooperative one governed by mutually devised rules places the new labor law at the cutting edge of behavioral law and economics.
As Sachs describes it, the labor movement, like many social movements in our history, has generated new legal regimes that have the potential to break a logjam at the intersection of economics, race, gender, and class.
The movement has deployed many of the strategies coming to the fore among progressive legal thinkers, including experimentation at the local level and privately negotiated social contracts. Sachs's theory of a "hydraulic demand for collective action" will be a proving ground for many of these ideas.