In The New Labor Law, Professor Kate Andrias describes a labor regime founded upon politicized social bargaining emerging from the wreckage of the National Labor Relations Act (NLRA).1 This regime rejects (for the most part) the NLRA’s employer-employee dyad model of private ordering through worksite-based representation and collective bargaining, in favor of a model involving mobilizing workers across entire sectors and harnessing state power through legislation or other vehicles to strengthen workers’ economic and political clout.2 Pointing to the Service Employees International Union (SEIU)-backed Fight for $15, Andrias identifies what she calls a “coherent vision of unionism” that is transforming unions from representatives of particular workers to advocates for workers generally.3

Professor Andrias’s optimism is striking, although welcome.4 While we find her analysis inspiring, we are less convinced that the labor unionism she describes is either completely coherent or new.5 In many respects, she is describing the ideological unionism that animated some quarters of the labor movement in the pre-NLRA era6—class-wide political struggles that relied on the First Amendment’s Assembly Clause to protect mass protests and pickets.7 That activism eventually produced the Wagner Act and its subsequent amendments, which laid the foundation for the evolution of modern “business unionism”—that is, organizing focused on the immediate concerns of prospective members about bread-and-butter issues, rather than on issues affecting unorganized workers as a class. Business unionism fits comfortably with a worksite-focused labor law regime in which unions exist primarily to advance the interests of their members related to wages and benefits, hours, working conditions, and job security.8

Ideological unionism never disappeared, however; it simply lay dormant. It re-emerged in the twentieth century as “social justice unionism,” so named because it was characterized by alliances with other social justice groups and because it connected workplace issues with social justice issues extending beyond the traditional realm of work law.9 Perhaps the best example of social justice unionism was the Memphis sanitation workers’ strike, a pivotal turning point for the civil rights struggle in the 1960s. Dr. Martin Luther King joined the sanitation workers’ strike in 1968, calling for an alliance between blacks and organized labor as the linchpin of a broad-based social change movement.10 The movement’s slogan, “I am a Man,” protested the treatment of black workers as less than human—a legacy from the slaveholding era—and appealed to the public to support workers’ demands for dignity.11 King’s assassination in Memphis sparked political and labor protests that not only resulted in tangible gains for the Memphis strikers, but reverberated more widely throughout the nation.12 This alliance between labor and the civil rights movement ultimately positioned public sector employee unions to emerge as the leading source of union expansion in the U.S. in the 1970s and beyond, as a growing public sector welcomed blacks who had been excluded from the private sector and states enacted public sector bargaining laws in increasing numbers.13 Blacks were disproportionately represented in the public sector workforce, and the median wage in the public sector for blacks was significantly higher than in other industries.14 Ultimately, public sector unionization became a critical force in improving the economic condition of African Americans as a class.15

The real question, then, is whether the business unionism regime that has dominated union praxis in more recent years can partner with the re-awakened social justice unionism displayed by movements like the Fight for $15 to mount an effective campaign against corporate power. In the early 2000s, Rick Fantasia and Kim Voss described a reawakened labor movement positioning itself as a counterweight to the power of capital through the resurgence of strategic social justice unionism, largely the brainchild of Andy Stern of the SEIU.16 Yet despite a relatively friendly climate for labor under the Obama administration’s NLRB and successful sectoral organizing like the SEIU’s Justice for Janitors campaign, labor’s resurgence never completely materialized. What has shifted to justify Andrias’s optimism?

I. rising income inequality and the end of the “age of acquiescence”17

There is no denying the dramatic rise in income inequality and the trend toward centralization of wealth in the United States.18 Further, there is strong evidence that economic inequality is likely to worsen,19 with worrying effects for democracy at both the local and national levels. One scholar has argued that the power disparity between the haves and the have-nots is so great that workers have become “in essence a colonized people.”20 During the last decade, the over-reaching, greed, and exploitation enabled by this power disparity have sparked social activism calling for economic justice. Occupy Wall Street and the Fight for $15 were perhaps the two most publicized grassroots movements. Despite these early tremors as the ground shifted beneath us, the presidential election of 2016 revealed a shocking divide: an angry, anti-Establishment populism rejected political, economic, academic, and media elites (represented most vividly by Hillary Clinton), and embraced campaigns by Bernie Sanders and Donald Trump, who tapped into those populist impulses with radical change agendas.21

Can that appetite for social change be harnessed for progressive goals through social bargaining? Andrias’s version of a labor unionism focused on issues of dignity and voice surely has the potential to direct the anger and passion of American populism toward constructive ends. Nevertheless, framing the issues purely in terms of economic justice is unlikely to ignite sufficient passion to inspire broad-based public support—and passion is what moves people to organize.22 In our view, alliances with other social justice groups that can tap into passion for change are critical. The labor movement can and must forge those bonds.23 This will not be easy given President Trump’s anti-immigrant rhetoric, which aligns all too well with protectionist strategies historically adopted by traditional manufacturing and construction unions. Further, the President’s outreach to building and trade unions with proposals that appeal to their business unionism-inspired interests while excluding public sector and service industry unions appears poised to deepen historical ideological rifts that have divided the movement, often along racial and ethnic lines.24 But strengthening bonds with other progressive movements across race, ethnicity, and gender divides is labor’s moral duty as much as it is a pragmatic necessity for labor solidarity. Rebuilding America’s social capital—the social bonds between individuals and institutions predicated on trust, reciprocal goodwill, and perceptions of fairness25—is essential to preserving social cohesion, the smooth functioning of markets, and democracy itself.26 And those are precisely the goals of labor laws.

II. sustainable unionism rests on the old labor law’s foundation

Andrias observes that worksite representation under the old labor law remains a necessary complement to social bargaining in the resurgence of labor.27 We agree. Elements of traditional labor law doctrine established by the National Labor Relations Board during the Obama Administration will be critical to the movement’s strategy, including especially the expanded interpretation of employee coverage.28 Further, in combination with a re-invigorated First Amendment freedom of assembly, Section 7 can help to protect workers who participate in social bargaining by joining public assemblies, worksite-based protests, and social media-based campaigns.29 Finally, painstaking shop-by-shop organizing through worker-led initiatives is still critical because worker empowerment is not merely an end, but a process by which workers themselves are transformed and communities are built.30 In this sense, the NLRA retains its most “radical” potential31 to achieve dignity for workers and democratic governance in the workplace.

Sustaining this old/new unionism requires funding. When Andrias wrote her paper, pundits were still widely predicting that Hillary Clinton would win the Presidency. The challenge of funding social bargaining looms ever-larger in the post-election era. Social bargaining has been largely underwritten by labor unions and workers’ rights organizations, including most notably the SEIU, which has invested millions in the Fight for $15.32 The SEIU is already planning for a 30% budget cut over the next year in anticipation of a Republican-controlled Congress and a presidential administration overtly hostile to unionism.33 An additional challenge to union coffers will undoubtedly take the form of a continuing press to overturn Abood v. Detroit Board of Education34—an effort likely to be successful once President Trump fills Justice Scalia’s vacancy on the Court.35

Andrias points to an array of possible new funding mechanisms, including fee-for-service arrangements, local and state government grants supporting union-run training programs, and employer-funded hiring halls.36 While these have some promise, we worry that they might further enshrine unions as service organizations—a model of unionism at odds with social justice unionism and the sectoral solidarity that has characterized social bargaining. A more effective strategy might be to utilize social bargaining at the local or state level to enact ordinances or statutes requiring employers to automatically deduct fees from workers’ pay checks and direct these tax-deductible payments to a membership organization of the employees’ choice, which would in turn advocate on their behalf through organizing and lobbying (though not collective bargaining). In New York City, a pending bill inspired by the Fight for $15 creates a similar, but optional, program for fast food employees to automatically contribute funds to nonprofit organizations, which must be registered with the city’s Department of Consumer Affairs and which advocate on behalf of workers in the fast food sector.37

III. the preemption straitjacket and local tension between labor and its allies

That social bargaining is likely to be most effective at the state and local levels in a post-election era seems clear: the Fight for $15’s efficacy was dramatically illustrated by the passage of higher minimum wage statutes at the state level during the 2016 elections,38 even as Republican legislators were voted into office. Further, two-thirds of the country’s largest cities (where the electorate is most inclined toward progressive politics) are led by Democratic mayors.39

The primacy of local battlegrounds, however, will exacerbate tensions between local unions and their social justice allies thanks to the NLRA’s powerful federal preemption doctrine. For example, in UAW Local 3047 v. Hardin County,40 labor unions relied upon the NLRA’s broad preemption doctrine in arguing that right-to-work ordinances adopted by several Kentucky counties should be struck down.41 The Sixth Circuit nonetheless upheld the power of the counties to bar union security agreements; it reasoned that NLRA Section 14(b)’s exception to federal labor law preemption for state or territorial law barring union security agreements includes local law where the state delegates its decisionmaking authority to local governments via a home rule statute,42 which Kentucky had done.43 In subsequent cases sure to follow,44 if unions challenge the breadth of a state’s home rule power to support a claim that right-to-work laws fall outside the authority delegated to local governments, their arguments would potentially undermine their allies’ claim that home rule authority should extend to raising the minimum wage and adopting other minimum standards legislation, such as those providing for paid sick leave or imposing limitations on scheduling.45

IV. rethinking the old labor law

Andrias also suggests that social bargaining could augment alternative mechanisms for worksite representation, including minority unionism and members-only bargaining.46 Here we think there is the most cause for optimism. Workers represented at their worksites by non-exclusive unions that charge dues only to their members could extend and advance the social bargaining agenda in immediate and sustainable ways, enhancing their voice at the worksite level and simultaneously joining with allies in the political and legislative arenas.47 The potential to combine social bargaining with worksite representation to secure “real democratic participation” in lawmaking,48 and simultaneously to attain Senator Wagner’s goal of empowering workers to provide genuine consent to workplace governance structures and democratic consent to the political order49 is exciting.

In the end, our main quibble with Andrias’s article is that the “new labor law” is not new. Andrias’s labor regime would entail a re-commitment by labor unions to a model of social justice unionism that relies upon the kind of coordinated action that has historically been most successful, as Andrias says, “in workplaces, on the streets, in legislatures, and before agencies.”50 Further, we think the new labor frame must be more capacious than economic justice. Alliances with non-labor organizations around social issues that extend beyond workplace boundaries will be instrumental in igniting the passion necessary to produce sustainable change, accomplished at a legislative level as well as at a negotiated worksite level.51 While the prospects for solidarity across racial and gender lines may seem daunting in the Trump era, history reminds us that solidarity is forged in opposition to a common adversary.52

Marion Crain is Vice Provost and Wiley B. Rutledge Professor of Law, Washington University in St. Louis. Ken Matheny is an Administrative Appeals Judge with the Social Security Administration, and the views expressed are his own.

Preferred Citation: Marion Crain & Ken Matheny, The ‘New’ Labor Law, 126 Yale L.J. F. 478 (2017), http://www‌.yale‌lawjournal.org/forum/the-new-labor -regime.