An Imminent Hanging

ABA Journal of Labor & Employment Law, Vol. 26, p. 151, 2011

Washington University in St. Louis Legal Studies Research Paper No. 10-08-02

11 Pages Posted: 8 Oct 2011

See all articles by Marion G. Crain

Marion G. Crain

Washington University in St. Louis - School of Law

Date Written: July 6, 2011


Participants in this symposium honoring the seventy-fifth anniversary of the National Labor Relations Act offered insightful tributes to the historic achievements of labor unions and collective bargaining under the Wagner Act and devastating critiques of the law’s evolution under Taft-Hartley and Landrum-Griffin. The critiques run to the very core of the statute - including its limited coverage, anachronistic adversarial premise, the stark choice it offers workers between a union as exclusive representative and no voice in the workplace at all, a deeply flawed election model which when combined with toothless remedies and procedural delays allows employers to mount aggressive anti-union campaigns that destroy union momentum, the limited nature of the duty to bargain, and the hobbling of labor’s strike and boycott weapons which makes first contracts exceedingly difficult for those unions that do triumph over the employer’s antiunion campaign. Although these problems suggest obvious possibilities for legislative reform, Congressional gridlock and the sharply polarized nature of labor politics prevents them from gaining traction. The Board’s efforts to take the lead through rulemaking and more aggressive enforcement of the Act have also met with powerful resistance in Congress. The more fundamental question is whether the NLRA is worth saving at all.

This essay seeks to spark debate about that question. On the one hand, repeal of the labor laws would undermine the primary support in the law for collective action by workers, and because of its linkage with other social justice movements, could also threaten the individual rights regime that these movements have secured. On the other hand, repeal of the labor laws could re-energize labor unionism. It seems far from coincidental that the most vibrant and successful organizing and worker activism efforts are occurring outside the NLRA framework, including neutrality and card-check campaigns, the political movement behind public sector organizing and bargaining rights, successes in immigrant organizing and home care work, collective and class action litigation pursued by plaintiffs’ attorneys under state and federal wage and hour law and antidiscrimination legislation, local activism by labor-community alliances that has produced living wage laws and community benefits agreements, and the persistent efforts by the Committee on Freedom of Association to enforce the ILO conventions on global labor rights.

In considering these issues, this essay proposes ways that labor might reinvent itself to become the sort of movement that will inspire and motivate rather than alienate and anger. First, unions should ally themselves with other social movements that are telling the most powerful stories of exploitation - race and sex discrimination, sexual orientation discrimination, human trafficking, abuses of low wage workers and immigrants. Second, labor should emphasize the voice function of unionism more. What self-respecting individual wouldn’t want to be at the table when decisions about her economic future and day-to-day work life are being made? Finally, unions must reconceive themselves as communal organizations that are part of the glue that binds society together. In the end, the weaknesses of labor unionism and labor law are also its strength: union organizing is a direct challenge to corporate power, an opportunity to tell the truth in workers’ voices about the economic realities of our time, and a strategy for wealth redistribution. Unless we wish to be only romantics, placing our heads in the noose and lamenting the decline and demise of the elegant system of labor law, we (intellectuals, union activists, lawyers, and workers) must do the hard work of explaining why unions and labor law are vital to economic prosperity, what the alternative could look like, and why everyone should care.

Keywords: labor, work, labor history, unions, collective bargaining

Suggested Citation

Crain, Marion G., An Imminent Hanging (July 6, 2011). ABA Journal of Labor & Employment Law, Vol. 26, p. 151, 2011; Washington University in St. Louis Legal Studies Research Paper No. 10-08-02. Available at SSRN:

Marion G. Crain (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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