Sunday, January 24, 2016

Collective Laissez-Faire in the American Grain

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

Brishen Rogers
The politics of economic inequality are awfully strange these days. There is broad consensus that we should do something about it. Yet most proposals are relatively tame and statist, involving progressive taxation, greater education funding, and more robust welfare benefits. Proposals to raise the minimum wage and to make unionization easier have gained traction, yet various states have passed right-to-work laws, and the Supreme Court seems set to constitutionalize right-to-work across the public sector in Friedrichs v. California Teachers Association.

In a nutshell, petitioners’ theory in Friedrichs is that workplace freedom of association extends only so far as individual workers’ wills, and that the economic and political activities of public unions cannot be disentangled, and therefore that requiring workers to remit any fees at all to a public sector union violates the First Amendment. The Court largely endorsed that logic two terms back in Harris v. Quinn. If it sides with petitioners, and past patterns hold, it would next extend right-to-work across the private sector, further undermining one of our only egalitarian institutions.

What should those concerned about economic inequality do? Perhaps we can make a virtue of necessity. If, as the evidence suggests, powerful workers’ organizations are essential to equality, we need to re-ground workers’ collective action in basic constitutional liberties.

I think of this as an Americanized “collective laissez-faire,” Otto Kahn-Freund’s term for the U.K.’s postwar labor law system, in which the state neither recognized unions nor tended to police the bargaining process. Of course, like the Lochner-era economy, “collective laissez-faire” was never really laissez-faire: the state immunized unions from tort prosecution and cabined labor/management conflict in various ways. But the basic libertarian impulse translates: the state should, in general, limit itself to enabling autonomous self-governance by workers and companies.

While our labor movement tends to support a powerful regulatory state, this impulse is familiar to them. As Willy Forbath, Jim Pope and others have documented, pre-New Deal workers often cast their demands as basic entitlements of republican citizenship. Rights to organize and picket were freedoms of speech and assembly protected by the First Amendment. Rights to strike were economic liberties guaranteed by the Thirteenth Amendment. Due to that history, and to the state’s historic antipathy toward unions, anti-statist norms survive in our labor movement today.

Building on these traditions, labor advocates could challenge—in courts and in public—several bodies of law that restrict workers’ powers of collective action.

The first is our ban on most strikes and picketing by unions against a “secondary” target, meaning an entity other than the workers’ formal employer. The most coherent defense of that ban is rooted in the speech/conduct distinction. Yet it has been applied to activities that involve neither patrolling nor other physical confrontation, leading scholars and judges to criticize the ban as an unconstitutional content-and speaker-based regulation of speech.

The right set of cases could whittle down that doctrine, enabling worker organizations to organize across supply chains rather than targeting individual firms or workplaces. This is essential, since so much work today is either subcontracted or performed through far-flung contractual networks headed by retailers, fast food chains and other large firms. The workers’ organizations best capable of taking on that challenge will be more like social movements than bargaining agencies, those who can use the media and technology effectively to organize at a regional or national scale rather than workplace-by-workplace.

For proof of concept, look to the long tradition of secondary consumer boycotts by the United Farm Workers, which was immune from secondary liability since agricultural workers were excluded from the NLRA. More recently, The Coalition of Immokalee Workers’ (“CIW”), a nonprofit organization in Florida, has used concerted action and secondary consumer boycotts to convince restaurant and grocery chains to accept responsibility toward agricultural workers in their supply chains.

A second set of reforms would ensure antitrust immunity for concerted action by certain non-employees. Current antitrust doctrine largely treats individual worker-contractors—think taxi drivers, truck drivers, or even individual office cleaners dispatched by a service—the same as large corporations, effectively denying them rights of concerted activity. But if truck drivers face antitrust liability for collectively demanding that a port raise rates, we are again awfully close to a content- or speaker-based restriction on speech and association—especially once the First Amendment grants rights not to contribute union fees.

More broadly, once we resurrect the notion of workers’ concerted action as a basic liberty, perhaps we can even envision moving beyond the “Wagner model” of labor law common to the U.S. and Canada. That could be a good thing, for the Wagner model is ineffective in many ways. It requires union certification and encourages worksite- or firm-based bargaining, creating strong incentives for employer resistance and conflict. It empowers unions to negotiate over workplace discipline and job rules, which is likely inefficient and further increases employer resistance. And it does a poor job at ensuring economic equality, in large part because of its localism and voluntarism. So if workers’ organizations could raise standards across entire supply chains without going through the NLRB’s ponderous certification procedures, they should.

Naturally, an American collective laissez-faire would have disadvantages. Without contracts, bargaining rights, or union security clauses, keeping the lights on may be a challenge, and the system itself would be less egalitarian than state-enforced peak bargaining. So reforms that work within the Wagner model should absolutely be pursued, particularly those that tap into libertarian sentiments, such as enabling members-only bargaining and fee for services arrangements or changing unions’ duties of fair representation toward non-members.

This new model nevertheless strikes me as well worth exploring and fleshing out for the simple reason that it may be achievable. Far better, in our constitutional culture, to defend workers’ concerted action as a constitutional liberty than as a claim against the employer’s managerial prerogatives. In other words, an Americanized collective laissez-faire could link together egalitarian and libertarian ideals in a way largely absent from contemporary constitutional debates.

Brishen Rogers is Associate Professor at Temple University School of Law. You can reach her by e-mail at

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