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 brishen.rogers@gmail.com