Next-Wave Organizing and the Transition to a New Paradigm of Labor Law

47 Pages Posted: 6 Nov 2006 Last revised: 7 Jun 2009

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.

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

JEL Classification: J50, J51, J58, K31

Suggested Citation

Pope, James Gray, Next-Wave Organizing and the Transition to a New Paradigm of Labor Law. New York Law School Law Review, Vol. 50, pp. 515-59, 2006, Rutgers School of Law-Newark Research Paper No. 013, Available at SSRN: https://ssrn.com/abstract=942771

James Gray Pope (Contact Author)

Rutgers Law School ( email )

Newark, NJ
United States
973-744-3642 (Phone)
973-353-1445 (Fax)

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