Rethinking the Ban on Employer-Labor Organization Cooperation

67 Pages Posted: 22 Sep 2015 Last revised: 24 Feb 2017

Date Written: September 21, 2015

Abstract

As a result of a variety of changed conditions, traditional union density is at an all-time low. But while only 6.6% of private sector workers are unionized, the rest of the workforce has not been without collective voice; nontraditional forms of worker organizations continue to emerge. Fast Food Forward, the Coalition of Immokalee Workers’ Fair Food Program, Google’s LGBT Employee Resource Group, and nascent organizing of “on-demand economy” Uber and Lyft drivers are a few examples of nontraditional worker organizations providing gains for workers. The success of many of these organizations has depended on avoiding the National Labor Relations Act and the restrictions it places on “labor organizations.” Recognizing this, the U.S. Chamber of Commerce and the Center for Union Facts have pushed the National Labor Relations Board to classify these organizations as “labor organizations.”

While labor scholars have begun to realize some of the costs such classification would impose, one important cost has been neglected: it would effectively prohibit some of these organizations from cooperating with and taking financial support from employers. Scholars have failed to grapple with this consequence because they have yet to recognize that some of these organizations—organizations heralded as the next wave of workers’ collective voice—are succeeding as a result of their ability to leverage consumer demand for “ethical” companies in order to get reputation-sensitive employers to sign agreements and create co-run organizations that improve conditions for these companies’ and their suppliers’ workers. If these collaborations were prohibited, workers would be constrained in their ability to improve their conditions in a dominantly post-union world.

This Article explores, for the first time in the literature, the various collaborations that have developed between new forms of worker organizations and employers. It then explains why these organizations are vulnerable to “labor organization” classification and the bans on company support found in section 8(a)(2) of the National Labor Relations Act and section 302 of the Labor Management Relations Act. The Article ends by suggesting that the Roberts Court’s deregulatory First Amendment opens up a possible tool for dramatically curtailing these bans on free speech grounds. Other labor scholars’ work on the First Amendment right of assembly provides another.

Keywords: corporations, Central Hudson, Sorrell, labor, employment, labor organization, union, worker centers, first amendment, NLRA, LMRA, labor law, speech, assembly, association, section 8(a)(2), section 302, Mulhall

Suggested Citation

Whitney, Heather M., Rethinking the Ban on Employer-Labor Organization Cooperation (September 21, 2015). 37 Cardozo L. Rev. 1455 (2016). Available at SSRN: https://ssrn.com/abstract=2663593

Heather M. Whitney (Contact Author)

New York University (NYU) ( email )

New York, NY
United States

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