The new labor law.

Author:Andrias, Kate
Position::I. Labor Law's Decline and Failed Revival A. The NLRA 3. Labor Law and Politics through III. The Case for the New Labor Law A. Weaknesses of the Emerging Regime, p. 32-76
 
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  1. Labor Law and Politics

    The above features of labor law all make it exceedingly difficult for unions to exercise economic power on behalf of workers in the contemporary, fissured economy. The law is structured around an ideal--or imagined--labor management relationship that, for the most part, no longer exists. The statutory decision to privilege firm-based contracts and to penalize cross-employer economic strategies thus leaves workers with little private, economic power in the modern economy.

    At the same time, unions' political power has declined. (160) The most obvious reason for the diminished political influence of labor is that, as union membership has plummeted, unions have had fewer workers to mobilize in politics and fewer resources to deploy on behalf of workers' goals. (161)

    But the problem is more fundamental than the decline in union membership. The existing labor law regime does not grant unions a significant degree of public, political power. Indeed, the law encourages unions to focus their energy at the firm level and not at the social or political level. As discussed in Section I.B, the law facilitates organization and bargaining at the individual firm, not across a sector, and workers are restricted in their ability to engage in cross-employer collective action. Moreover, under the statute, unions have a legal duty to bargain and represent workers at the workplace, (162) not to serve as a voice for workers in politics and governance more generally. (163) If unions fail to discharge their duty at the firm level, they are subject both to administrative proceedings and to suit in federal court. (164)

    The local, firm-based structure of American labor law brings advantages, (165) but it also leaves unions weakened in their ability to mount a powerful political defense of workers on a national or regional level. Unions must develop extensive bureaucracies to provide representational services, diminishing resources available for broader organizing and political work; this structure also provides an incentive to engage in political work that benefits existing members, as opposed to workers generally. (166) While many unions have been powerful advocates for legislation and regulation that benefit all workers--including health care, workplace safety, antidiscrimination, and wage and hour laws (167)--others have focused almost entirely on contract administration or on legislation that serves their own members, sometimes at the expense of more vulnerable and nonunionized workers. (168)

    Indeed, it is in part because the law conceives of unions as private, firm-based representatives that the Supreme Court has limited the ability of employers and unions to use union dues for political purposes. The Court has held that workers who object to union membership may be required to fund the costs of representation, but may not be required to contribute to union expenses regarding matters of public concern. (169) According to the Court, work on matters of politics and public concern is not germane to unions' core function and therefore cannot justify any burden on an individual worker's speech. (170) Notably, the Court does not apply similar reasoning to corporations. Although campaign finance law regulates political spending by corporations and unions identically, the Court has not found that shareholders have a First Amendment right to object to corporations' political spending. (171)

    Finally, the law gives unions no formal role in negotiating generally applicable wages or workplace standards--or other social benefits. This is a sharp difference from the short-lived "corporatist" or "tripartite" model of NIRA and from many European systems. (172) For example, in Germany, the union federations participate in basic decisions concerning national wage policy and policies relating to employment, economic growth, and social insurance. (173) Meanwhile, collective bargaining occurs on a regional basis, with unions and employers responsible for negotiating wage scales that cover all workers, at least in manufacturing sectors; those agreements then provide a floor above which local bargaining may occur. (174) In Denmark, unions have played an even more active role in negotiating social policy. (175) Unions and employers have, for example, collectively negotiated national policies on worker training and parental leave. (176) Throughout many other European countries, the law provides for various forms of "contract extension," where collective bargaining agreements are extended to apply to workers throughout a region or sector, effectively forming the basis for employment policy in those sectors. (177)

    To be sure, the NLRA does protect, to some extent, workers' political activity. Section 7 has been interpreted to extend to workers' concerted activity that occurs through political channels--as long as such activity relates to employment issues. (178) In addition, unions, like other organizations, may engage in electoral politics and lobby government officials. (179) In some circumstances, they may also use political pressure to bring about concessions from employers regarding organization and collective bargaining. (180) In practice, many unions spend a great deal of energy and money on political activity with significant effect. (181) But while the law permits political action, it fails to empower unions at the political level, and it incentivizes a bureaucratic focus.

    These features of American labor law matter not only for how unions spend their time and resources, but also for society more generally. When unions were large and strong, they helped engage workers in the political process and helped ensure that the government was responsive to the actual preferences of working people. (182) When particular unions moved beyond a focus on workplace representation of existing members and pursued a broader social justice mission at the sectoral, national, and political level, they helped bring about significant improvements in the lives of all working Americans. (183) Conversely, the decline in unionization rates and the failure of American law to structure unions in ways that facilitate workers' collective political power has contributed to a politics in which government is particularly responsive to the wealthy. (184)

    1. Employment Law: Distinct and Insufficient

      Of course, labor law, which aims to protect collective action among workers, represents only one facet of American workplace law. Another is employment law, which offers "rights and protections to employees on an individual--and individually enforceable--basis." (185) Yet employment law suffers from as many limitations as labor law in the contemporary political economy.

      Employment law comprises a wide range of federal laws, including Title VII and other antidiscrimination statutes, (186) the Fair Labor Standards Act (FLSA), the Occupational Safety and Health Act (OSHA), and the Family and Medical Leave Act (FMLA). (187) It also includes numerous state statutes and state common law doctrines. (188) The state and federal laws operate largely independently of any collectivization in the workplace. (189) They prohibit discrimination on the basis of race, sex, and national origin, as well as other protected characteristics; and they guarantee minimum standards and fair treatment, including minimum wages, maximum hours, safe working conditions, and a modicum of family leave.

      As labor law became ossified and decreased in relevance over the last few decades, employment law grew increasingly important. (190) In particular, the antidiscrimination statutes--the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act--worked an important transformation in the American workplace. Together, they opened up employment opportunities for millions of Americans. (191) More recently, the FMLA and the Affordable Care Act provided important new guarantees of economic benefits: unpaid family leave and the right to purchase medical insurance.

      To great extent, the expansion of employment law is compatible with labor law. Like labor law, much employment law aims to improve workers' economic and social position to create greater societal equality. (192) Rather than displacing collective bargaining, most employment law statutes set a floor in the workplace above which unions can negotiate. As such, employment law functions to fulfill the substantive goals of unions and to extend the benefits won by unionized employees to a broader set of workers. Certain employment law statutes also include provisions that facilitate and protect collective action among workers. (193)

      At the same time, scholars have documented tensions between the two regimes. (194) Employment law and labor law embrace fundamentally different approaches to protecting workers: bestowing individual rights in the case of employment law; facilitating collective power in the case of labor law. (195) Though these two approaches can be--and have been--mutually reinforcing, they can also conflict. Historians have documented how the rise of rights-conscious liberalism undermined trade unionism in particular ways. (196) For example, conservative antiunion lawyers successfully adopted the arguments of the civil rights movement to advance their vision of a "right to work" free from union dues. (197) And in some circumstances, courts applied a broad labor preemption doctrine to deny unionized workers the benefit of state law employment rights. (198)

      Not only did tensions emerge between the NLRA and individual rights regimes, but employment law was unable to fill the void left by a weakened labor movement and a labor law that failed to protect workers' ability to organize and bargain. (199) Enforcement of employment law is lax and violations are rampant, particularly in the fissured workplace. (200) Moreover, as with labor law, when employment is contracted out, fewer rights attach....

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