Academic journal article The Yale Law Journal

The New Labor Law

Academic journal article The Yale Law Journal

The New Labor Law

Article excerpt

3. Labor Law and Politics

The above features of labor law all make it exceedingly difficult for unions to exercise economic power on behalf of workers in the contemporary, fissured economy. The law is structured around an ideal--or imagined--labor management relationship that, for the most part, no longer exists. The statutory decision to privilege firm-based contracts and to penalize cross-employer economic strategies thus leaves workers with little private, economic power in the modern economy.

At the same time, unions' political power has declined. (160) The most obvious reason for the diminished political influence of labor is that, as union membership has plummeted, unions have had fewer workers to mobilize in politics and fewer resources to deploy on behalf of workers' goals. (161)

But the problem is more fundamental than the decline in union membership. The existing labor law regime does not grant unions a significant degree of public, political power. Indeed, the law encourages unions to focus their energy at the firm level and not at the social or political level. As discussed in Section I.B, the law facilitates organization and bargaining at the individual firm, not across a sector, and workers are restricted in their ability to engage in cross-employer collective action. Moreover, under the statute, unions have a legal duty to bargain and represent workers at the workplace, (162) not to serve as a voice for workers in politics and governance more generally. (163) If unions fail to discharge their duty at the firm level, they are subject both to administrative proceedings and to suit in federal court. (164)

The local, firm-based structure of American labor law brings advantages, (165) but it also leaves unions weakened in their ability to mount a powerful political defense of workers on a national or regional level. Unions must develop extensive bureaucracies to provide representational services, diminishing resources available for broader organizing and political work; this structure also provides an incentive to engage in political work that benefits existing members, as opposed to workers generally. (166) While many unions have been powerful advocates for legislation and regulation that benefit all workers--including health care, workplace safety, antidiscrimination, and wage and hour laws (167)--others have focused almost entirely on contract administration or on legislation that serves their own members, sometimes at the expense of more vulnerable and nonunionized workers. (168)

Indeed, it is in part because the law conceives of unions as private, firm-based representatives that the Supreme Court has limited the ability of employers and unions to use union dues for political purposes. The Court has held that workers who object to union membership may be required to fund the costs of representation, but may not be required to contribute to union expenses regarding matters of public concern. (169) According to the Court, work on matters of politics and public concern is not germane to unions' core function and therefore cannot justify any burden on an individual worker's speech. (170) Notably, the Court does not apply similar reasoning to corporations. Although campaign finance law regulates political spending by corporations and unions identically, the Court has not found that shareholders have a First Amendment right to object to corporations' political spending. (171)

Finally, the law gives unions no formal role in negotiating generally applicable wages or workplace standards--or other social benefits. This is a sharp difference from the short-lived "corporatist" or "tripartite" model of NIRA and from many European systems. (172) For example, in Germany, the union federations participate in basic decisions concerning national wage policy and policies relating to employment, economic growth, and social insurance. (173) Meanwhile, collective bargaining occurs on a regional basis, with unions and employers responsible for negotiating wage scales that cover all workers, at least in manufacturing sectors; those agreements then provide a floor above which local bargaining may occur. …

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