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Abstract:
Despite its positive features, the Employee Free Choice Act has no place in a long-term strategy for workers' rights. If enacted, it will dissipate the energy for labor law reform without producing any results other than a marginal improvement in the prospects for staff-driven organizing campaigns. More likely, however, it will fail of passage. History teaches that the enormous advantages enjoyed by employers in ordinary politics (for example, the grossly disproportionate influence exerted by wealthy interests and rural states in our political system) can be offset only by a long-term and uncompromising movement for workers' rights. In the first half of the twentieth century - the period when all of our major workers' rights statutes were won - the movement approached the issue as one of long-term struggle over fundamental principles, and not as a matter of wheeling and dealing for whatever gain could be obtained at the moment. For half a century, workers and unions insisted that without the full freedom to associate in unions and engage in concerted activities like strikes, workers would be reduced to an unconstitutional condition of involuntary servitude. By adopting a similarly principled approach, adapted to fit the emerging industrial regime of flexible production, we can reclaim the rights to organize and strike.

labor, constitutional rights, social movements, legislation

Abstract:
As a veteran labor scholar once said, if you want to know where the corpses are buried in labor law, look for the of course statements in court opinions. This essay traces the historical origins of five such of course statements, each of which has had a devastating impact on the American labor movement. The five statements are: (1) Workers have no right of self-defense against employers that commit unfair labor practices (NLRB v. Fansteel Metallurgical Corporation); (2) Employers enjoy the right permanently to replace economic strikers (NLRB v. Mackay Radio & Telegraph Company); (3) The National Labor Relations Board has no power to deter unfair labor practices (Consolidated Edison Company v. NLRB); (4) Employers may exclude union organizers from their property (Lechmere, Inc. v. NLRB); (5) Employers may close operations out of spite against workers who choose to unionize (Textile Workers Union v. Darlington Manufacturing Company). The essay argues that in each of the five cases, the Court revived Lochner-era constitutional doctrines - supposedly defunct since the switch in time that saved nine in 1937 - and applied them to cut back on statutory labor rights. Although the five statements were not considered especially dangerous at the time, their impact has since been magnified by social and economic change. Taken together, they may account for a substantial proportion of the decline in the American labor movement. As in the pre-New Deal period, then, judges have deprived workers of the rights to organize and strike based on constitutional concerns. This time, however, they have avoided the forthright constitutional reasoning of the pre-1937 period, thereby insulating their rulings against changes in constitutional jurisprudence.

labor, strikes, economic due process

Abstract:
No single model of independent worker organization appears destined to replace industrial unionism as the dominant paradigm. The models that have been proposed - worker associations, community unions, and occupational unions - may all play important roles in a labor resurgence. Each responds to the needs of important worker constituencies. None by itself, however, seems capable of dealing with the most influential and powerful employers. In fact, Wal-Mart - the apparent template corporation of the twenty-first century - carries forward many of the enterprise characteristics that sustained industrial unionism during the twentieth century, including centralized authority, limited geographic mobility, huge numbers of employees, and downward pressure on labor costs. Most likely, then, a revived labor movement will include industrial unions, as well as a variety of different organizational forms adapted to different economic sectors and geographic regions.

This variety fits the current industrial paradigm of flexible production. If employers are to have flexibility in organizing production, then workers must have the organizational flexibility necessary to respond. The corresponding legal paradigm is freedom of association, the core principle of which is that workers, and not employers or government, should determine the form of worker organization. The article describes the historical antecedents of this paradigm and specifies its basic elements.

In today's political environment, the notion that we could move to a regime of freedom of association might seem unrealistic. But similarly daunting conditions prevailed before each previous advance in workers' rights. Everything we know about labor movement growth indicates that it comes in unpredictable upsurges. At those junctures, workers and unions exercise their freedom of association, breaking through the constraints of anti-labor laws. Hitherto, unrealistic legislative proposals suddenly become feasible. A new paradigm centered on the freedom of association can both justify the inevitable clash with contemporary law, and provide a program for labor law reform in the era of flexible production.

labor, strikes, social movements, trade unions, freedom of association, labor organizing

Abstract:
The Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the involuntary servitude clause. This article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough discussion of the interpretive issues. Under Pollock, a claimed right should be protected if it is necessary to provide workers with the “power below” and employers the “incentive above” to prevent “a harsh overlordship or unwholesome conditions of work.” Although this is not the only conceivable standard, it does fit well with the text, history, and case law of the Amendment. The absence of any racial element, which might appear dishonest in light of the fact that most of the leading cases involved workers of color, nevertheless corresponds to the original meaning and appears to have important advantages from a doctrinal point of view. The article discusses the legal and philosophical justifications of various labor rights in relation to the Pollock standard, including the right to quit, the right to change employers, the right to name the wages for which one is willing to work, and the right to strike.

Abstract:
This article recounts a legal history of the sit-down strike movement in the United States, focusing on the claim that the sit-downers themselves were engaged in legal practice. It finds strong evidence that many were, and in five distinct forms. First, the sit-down made it possible for mass production workers to legislate and enforce unilateral rules directly regulating relations of production, for example, restrictions on the pace of work. Second, sit-downers legislated, adjudicated, and enforced rules governing life in the facilities that they had seized. Third, sit-downers formulated and exercised a legal right of workers to stage a sit-down strike at their place of work. Fourth, sit-downers engaged in self-enforcement of the National Labor Relations Act and the United States Constitution, thereby pressuring the Supreme Court to uphold the Act in April of 1937. Finally, workers used sit-downs to enforce collective bargaining agreements. Courts rejected the strikers' claims to legality and treated the sit-down as a lawless form of mob violence. After a protracted struggle, the courts' position prevailed, and shop-floor lawmaking was gradually displaced by the now-familiar regime of bureaucratized collective bargaining.

social movements, legal pluralism, labor, strikes, jurisgenesis, self-help

Abstract:
During the twentieth century, Congress's power to regulate commerce grew sensationally while its human rights powers atrophied. This strange phenomenon originated in the choice, made by lawyers and politicians in the early 1930s, to base labor rights statutes like the Wagner Act on the Commerce Clause instead of the Thirteenth Amendment. Unions and workers argued that the rights to organize and strike made the difference between freedom and involuntary servitude. But a bevy of progressive lawyers who styled themselves "friends of labor" undermined labor's Thirteenth Amendment theory. The article argues that this clash reflected not merely tactical differences among allies, but fundamentally conflicting constitutional goals. It contends that the Supreme Court upheld the Wagner Act not because of the lawyers' Commerce Clause arguments, but because workers staged a series of sit-down strikes that confronted the swing justices with a choice between industrial peace or war. Afterward, unions and workers interpreted the Wagner Act decisions as victories for labor freedom, but the Act's Commerce Clause foundation pointed in a different direction - one leading to fateful distortions in the jurisprudence of congressional powers.

Thirteenth Amendment, Commerce Clause, New Deal Constitutional Revolution, Norris-LaGuardia Act, Wagner Act, Taft-Hartley Act, right to strike, lawmaking from below, jurisgenesis

Abstract:
In April, 1934, workers at the Auto-Lite plant went on strike, demanding that their employer recognize their union and engage in collective bargaining with them. Despite the ill effects of the Depression on Toledo and an unemployment rate of over 50%, workers at the Auto-Lite transmission plant risked their jobs and the possibility of employment at other factories for what they believed were fundamental rights - the rights to organize into a union, engage in collective bargaining, and strike. With help from the Toledo Central Labor Union and the AWP, the Auto-Lite workers resisted an injunction and enforced their right to organize on their own through collective action.

As of 1934, the Constitution had yet to emerge as a major public issue. Unlike the sit-down strikers in 1936 and 1937, a period in which the courts considered the constitutionality of the NLRA, the Toledo strikers rarely raised constitutional issues. Nevertheless, we conclude that the Toledo strike was one episode in a long-term popular movement for constitutional change. In later interviews, those workers stressed that the deplorable conditions and the way that their employer treated them that led them to strike. While most leaders of the Auto-Lite strike did not mention the Thirteenth Amendment, a number of them invoked opposition to wage slavery in their speeches and leaflets to rally their supporters. In this manner, the workers on the Auto-Lite picket line carried on labor's tradition of recognizing the right to organize as a human right as well as an economic right. This article thus considers an important chapter in the history of American popular constitutionalism, the belief of labor activists that they had a fundamental right to organize into a union, and Congress' codification of that belief in the National Labor Relations Act of 1935.

legal history, individual rights, courts, constitutional theory

Abstract:
Republican moments occur during periods when large numbers of normally quiescent citizens enter the public arena to struggle over long-term issues of principle. Constituencies that are under-represented in interest-group bargaining use mass protest and other forms of direct popular power to place their concerns on the public agenda. Aroused citizens disrupt cozy relationships among politicians, administrators, and interest group lobbyists. Examples include the Revolutionary era, the Jacksonian period, the Civil War and Reconstruction, the Populist era, the New Deal, and the 1960s. Most of the great rights we celebrate today were products of the unruly and passionate politics of republican moments. The Constitution, of course, erects a system of representative - not direct - democracy. Its most effective proponents sought to temper special interest politics with deliberations among an elite of virtuous representatives, not with pulses of direct popular power. The Bill of Rights, however, added a potentially subversive supplement to the representative scheme. Read in historical context, the First Amendment carves out the constitutional space for direct popular power. In the political theory and practice of the founding generation, the right of the people peaceably to assemble encompassed not only the right to meet, but also to exercise extra-institutional forms of power, ranging from nonviolent rallies and boycotts to the displacement of representative government by popular assemblies. Direct power was seen as a necessary corrective to the natural tendency of government to degenerate into corruption and tyranny. Here, as elsewhere, the framers deliberately built a conflict into the constitutional scheme, this one between representative government and direct popular power. The theory of republican moments has two major implications for legal doctrine. First, it provides arguments for expanding the protection of direct popular power under the first amendment. Understanding the long-run functions of direct power may help to forge the kind of civic courage that can sustain a commitment to free speech and assembly in the midst of popular tumult. Second, the theory suggests that courts and administrative agencies should give a broad construction to the statutory and constitutional products of republican moments. For brief periods of time, at a considerable cost to business-as-normal, direct popular power offsets the worst flaws of interest group bargaining. These times should be seen as precious - albeit unsettling - moments of effective democracy. When the level of participation subsides, courts and administrative agencies should serve as agents of the republican moment, preserving the thrust of republican laws against the relative lethargy and corruption of interest group bargaining. Failure to do so can only reflect, as Frederick Douglass lamented when the Supreme Court invalidated the Civil Rights Act of 1875, a failure of historical memory.

constitutional law, popular constitutionalism, freedom of assembly, statutory interpretation, liberal pluralism

Abstract:
In the words of NLRB Chairman Wilma Liebman, American labor law has been turned “inside out.” Business values - imported from outside the NLRA - have gravitated to the core of labor jurisprudence, while labor values - originally enshrined at the heart of the statute - have floated to the periphery. While business values are grounded on a deeply rooted core theory and narrative of entrepreneurship, exemplified in the doctrine of the “core of entrepreneurial control,” there is no labor equivalent. When it comes time to balance employer common-law rights against worker statutory rights, the employer’s robust and coherent entrepreneurial interest is counterbalanced by a scattering of disconnected interests many of which are neutral in valence like employee “choice” or “stability in collective bargaining.” I propose that labor’s counterpart to business entrepreneurship is labor solidarity. Just as capital - and control over capital - is central to business entrepreneurship, so is solidarity - and the generation and enforcement of solidaristic norms - central to the statutorily protected activities of “self-organization” and “concerted activity for mutual aid or protection.” If our labor law is to be turned rightside-out, we will need to develop (or, more accurately, to recover and update) a positive juristic understanding of solidarity, including a core theory and narrative of the generation of solidaristic norms. At the theoretical level, this project entails rejecting the prevalent, economic model of rational choice - which is conceptually powerless to comprehend the statutorily protected activities of self-organization and mutual aid - and adopting the cognitive model of constitutive choice. Elements of such an approach can be found in scattered decisions of the NLRB and courts, but they remain to be assembled and shaped into a coherent theory and narrative. If the Obama NLRB were to build on these decisions, bringing solidarity back to the center of the labor law, the official understanding of labor activity would change dramatically, and along with it a number of important legal doctrines. Examples include reinstating protection for worker norm implementation in the workplace, reinstating Weingarten rights in the non-union workplace, requiring employers to bargain with non-majority unions for their members only, and developing a new “core of solidaristic control” parallel to the employers’ “core of entrepreneurial control.”

Labor, Rational Choice, Constitutive Choice

Abstract:
The history of American labor law can be viewed as a struggle between lawmaking workers and lawmaking employers over jurisdiction and enforcement power. During the first half of the twentieth century, American workers routinely engaged in unilateral lawmaking. They developed social norms and, where possible, formal rules governing such matters as the pace of work, the length of the working day, the proper attitude toward the boss, and the obligations of solidarity. Through these activities, workers experienced first-hand the power of solidaristic organization. Partly as a result, many workers were passionately loyal to their unions, attended union meetings, and participated in union activities.

Initially, it appeared that unilateral worker lawmaking would be protected against employer retaliation under section 7 of the National Labor Relations Act. However, courts, labor arbitrators, and - eventually - the NLRB came to agree that employer property rights trumped worker norm enforcement inside the workplace. Over time, these rulings undermined the practice of unilateral worker lawmaking and, along with it, the participation, loyalty, and commitment of union members. This result was neither desired nor anticipated by the decision-makers who developed the legal doctrines. They believed that their rules would produce a stable system in which unions and employers could bargain on a basis of mutual respect. They assumed that the norm of solidarity would remain strong, that the outside strike would give industrial unions a rough equality of bargaining power with employers, and that workers would continue to engage in self-enforcement if grievance and arbitration procedures became unresponsive. Unfortunately for workers, they failed to recognize that the generation of solidaristic norms and practices was an accomplishment that could not be sustained without constant re-enactment by workers.

In recent years, some of the most successful organizing unions have begun to revive the tradition of unilateral worker lawmaking. Instead of campaigning for a majority vote in a one-shot representation election, workers develop and enforce norms of fair treatment and solidarity. Organizing committees begin to function like unions without waiting for employer recognition. Once a collective bargaining agreement has been negotiated, workers strive to enforce it on their own. Unfortunately for workers and unions, the old doctrines continue to constrain such activities despite the erosion of their supporting assumptions.

labor, legal pluralism, social movements, jurisgenesis