Wilma B. Liebman∞

NYU Law School Review of Law and Social Change 2016 Symposium: Dishwashers, Domestic Workers, and Day Laborers: Can Alternative Organizing Revive the Labor Movement?

Panel II: Friend or Foe: Labor Law and Non-Union Workers

March 25, 2016

Is the Depression-era National Labor Relations Act (“NLRA”)–enacted in 1935 as part of President Franklin Roosevelt’s New Deal–still a force for positive change in the lives of American workers? What, if anything, remains of its promise to achieve “common justice and economic advance”?1 How well (or not) is our labor law protecting workers’ rights to act collectively to improve their working conditions, to join unions, and to bargain with their employers? Is it adaptable to the evolving workplace and economy, or is it truly a marginalized endeavor? Even worse, is it a failed experiment?

Academics have long declared labor law dead or dying. In 1982, Harvard Law Professor Paul Weiler portrayed labor law as “an elegant tombstone for a dying institution.”2 Thirty years later, NYU Law Professor Cynthia Estlund described the “ossification” of American labor law.3 And, on the occasion of the NLRA’s seventy-fifth anniversary, Harvard labor economist Richard Freeman wrote that “[i]t is perhaps harsh and impolitic at the NLRA’s seventy-fifth birthday symposium to declare that in 2010 the law no longer fits American economic reality and has become an anachronism irrelevant for most workers and firms. But that is the case.”4

For those committed to economic fairness and workplace democracy, these questions warrant close examination in post-election America. At this uncertain historical moment, it would be easy to abandon hope, but that would be a mistake. Doing so would relinquish an opportunity to reinvigorate the nation’s understanding of collective action and its value as both a policy goal and an aspect of social change. We would do well to heed the eloquent words of Eleanor Roosevelt written over fifty years ago:

One thing I believe profoundly: We make our own history. The course of history is directed by the choices we make and our choices grow out of the ideas, the beliefs, the values, the dreams of the people. It is not so much the powerful leaders that determine our destiny as the much more powerful influence of the combined voices of the people themselves.5

The history of American labor argues for maintaining hope. Unions were formed, grew, and survived despite a complete lack of legal protection–indeed, in a legal order that was actively hostile.6 State-sanctioned oppression and violence continued well into the twentieth century.7 The labor law, for all its shortcomings, was the product of tremendous struggle. And despite persistent challenges, the fundamental values of our labor law endure: the rule of law as a substitute for often-bloody labor battles; the principle of freedom of association; the goal of economic advance through collective bargaining; and commitment to a system of industrial democracy. These values are recognized as core principles of a democracy. Whatever its flaws and whatever the lapses made by the NLRB in applying it, this law is, at its heart, a law grounded in the international human rights regime.8 The concept of fundamental rights at work is now part of the international legal order, and the NLRA is the foundation of our commitment to these values recognized around the world, even if they are sometimes more often ignored than honored.

A few years back, a Washington Post reporter deftly explained why the economy was not doomed: “One reason we should be more optimistic is that we’ve finally become aware of just how lousy the past several decades have been for the average U.S. worker ….”9 There are many reasons for this growing awareness, but the revival of worker activism,10 after years of marginalization and more than three decades of stagnant wages,11 has certainly brought the tough realities to the public eye. Steven Greenhouse, the veteran New York Times labor reporter (also on this panel), has relentlessly told the stories of American workers, their economic hardships, and their struggles for economic justice.12 A new generation of journalists is also emerging, passionately bringing these stories to life in an array of media outlets.13

The struggles of fast-food workers for livable wages and their one-day strikes in cities across the nation and abroad exemplify this rising discontent.14 Their campaign has triggered a wave of state and local minimum wage hikes around the country. It has also, little by little, introduced thousands of workers to collective action and organizing for improved working conditions.15

Gradually, people in all different types of workplaces and occupations are joining together, with and without unions, to improve life on the job. In just the last five years, drivers who transport Silicon Valley entrepreneurs have voted to join the Teamsters Union,16 a striking symbol of confronting inequality. Workers have struck at West Coast ports,17 Texas oil refineries and pipelines,18 and a New England telephone company.19 On campuses across the nation, college football players, adjunct faculty and graduate teaching assistants have sought to unionize.20 And workers excluded from the basic labor law’s coverage, including farmworkers,21 home healthcare workers,22 fashion models,23 and others treated as independent contractors have mobilized for better pay and improved working conditions, some joining traditional labor unions and some allying with “alt-labor” groups.24

The latest display of innovative collective action is by Uber drivers, who have embraced a range of different strategies. Some have engaged in protest demonstrations,25 some have sought to unionize as “employees,”26 others are seeking to deal or bargain with Uber as “independent contractors,”27 and some are pursuing claims in litigation.28 Worker-focused app-based platforms and online forums are also arising, providing a meeting place where Uber drivers and other workers can build community and organize.29 These groups are beginning to actualize a vision of “open source unionism”–extending the advantages that technology offers for expanding communication and building networks.30 Impressive experimentation in worker organizing and collective action is occurring, even outside the framework of federal labor law and traditional collective bargaining, but–in my view–consistent with its promise. Although some initiatives are limited in scale, resource capacity, and long-term sustainability, they perhaps foretell opportunities that we cannot today anticipate.31

Modest perhaps by comparison with labor struggles of the 1930s or civil rights protests of the 1960s, this worker restiveness is nonetheless widespread and genuine and increasingly cannot be ignored. This is underscored by the unexpected and lasting appeal of both Donald Trump and Bernie Sanders. While they differed sharply in style and politics, the support for both reflected unprecedented levels of frustration with the prevailing political and economic order.

Whether labor law is a “friend or foe” of labor and non-union workers–as this symposium inquires–depends on a variety of external circumstances and organizational strategies. I once asked the creative and dynamic leaders of two workers’ organizations whether they viewed the labor law (and the NLRB) as merely unhelpful or an actual obstacle. Saket Soni, the director of the National Guest Worker Alliance,32 answered that it is sometimes helpful–“we use it when we can.” David Rolf, president of the Seattle-based Local 775 of the Service Employees International Union,33 and an international union vice-president, answered unequivocally that the law is an obstacle. Instead, he advocates seeding innovative models of worker power.34

Both Soni and Rolf would no doubt agree, however, that labor law strategies should never be a “substitute for organizing more power in more communities.”35 Nor should labor law reform be the prime focus. As history teaches us, a stronger labor law would follow from a stronger labor movement, not the other way around, and creative new approaches are essential. Still, preserving labor law is important as it embodies a public commitment to its underlying values.36 A challenge going forward will be keeping these values alive, and channeling obvious worker discontent into positive forces for democratic and economic advance.

To be sure, even an NLRB firmly committed to a dynamic application of the law is limited in what it can do. A variety of forces constrain its discretion, such as an arguably antique statute, written for the industrial era and totally resistant to legislative change; eighty years of accumulated precedent that must be navigated; dramatic changes in the American economy and society that are beyond the Board’s control; and a judicial, political, and economic climate indifferent or even hostile to collective bargaining, with recurrent controversy and battles over appointments to the Board, its budget, and activities.

Notwithstanding these constraints, modest but meaningful efforts can be made to keep the law living and to adapt it to changing economic and workplace realities. Constrained or not, as an administrative agency responsible for enforcing Congressional policy, the Board does have discretion–indeed it has a fundamental duty–to adapt rules and practices to a volatile changing economy. As recent decisions of the NLRB have shown, there is some elasticity in the statute to permit its dynamic interpretation,37 and rigorous enforcement of workers’ rights is possible–assuming, of course, an NLRB that is willing to exercise its limited but available discretion.

Even allowing for its limited power, the Board has at times made things worse, not better, by making little effort to adjust its legal doctrines to preserve worker protections in a ruthlessly competitive economy.38 Its perceived obsolescence is linked in considerable part to its seeming lack of administrative will,39 and there is little reason to expect that a newly constituted Board will have that will. But, as the recent sweep of minimum wage hikes around the country has shown, re-energized worker power can catalyze political will.40

Labor law is of course no panacea for all of our economic inequities, but it is a piece of the mosaic of our democracy. As President Obama reminded us on November 9, 2016, progress has never been a straight line.41 It zigs and zags with conflicting winds, and advances bring new problems.42 Ultimately, progress evolves from sustained grassroots struggles. While we cannot realistically expect much at the federal level over the next four years, “as history teaches us, most social and economic shifts that improve lives don’t actually begin with a national policy.”43 The public policy challenges we face call for multi-tiered experimentation,44 with both public and private strategies,45 especially at the state and local level, where “innovations and social movements are born and tested for their ability to address emerging tensions.”46

In closing, I circle back to Eleanor Roosevelt, whose inspiring words I cannot exceed:

Once more we are in a period of uncertainty, of danger, in which not only our own safety but that of all mankind is threatened. Once more we need the qualities that inspired the development of the democratic way of life. We need imagination and integrity, courage and a high heart. We need to fan the spark of conviction, which may again inspire the world as we did with our new idea of the dignity and worth of free men. But first we must learn to cast out fear. People who “view with alarm” never build anything.47