Unions for Workers in the Gig Economy: Time for a New Labor Movement

By Tronsor, William J. | Labor Law Journal, Winter 2018 | Go to article overview

Unions for Workers in the Gig Economy: Time for a New Labor Movement


Tronsor, William J., Labor Law Journal


I.Introduction

Throughout history organized labor has vastly improved the lives of Americans by fighting for workers and civil rights. Organized labor is the reason Americans enjoy the weekend and why children are in school and not on an assembly line.1 In the past, unions secured relatively fair wages for workers and helped to ensure income equality in America.2 This is why it is no surprise that the relative decline of private sector unions over the past 35 years has mirrored the decline in the middle class's share of the national income.3 There are a number of reasons union membership is declining in America today, but one of the main reasons is that the National Labor Relations Act (NLRA) is out of date for the problems faced by a modern workforce.

There are whole new communities of gig workers4 who are ripe for collective action, but who are difficult to organize by traditional methods.5 The NLRA and the methods used to organize labor need to be updated to help workers in the 21st century. This article proposes how the NLRA could be updated and how new communities of workers could be organized in the gig economy. The article also explains the challenges unions may face in organizing gig workers and suggest solutions to those problems, so that unions can facilitate a new modern labor movement.

II.A Brief History of Labor Relations in the US and the Need for Strong Unions

In 1935 Congress passed the NLRA in order to protect workers' rights to organize, form unions, and collectively bargain with employers to improve the terms and conditions of their employment.6 The passage of the NLRA was a radical departure from the ways that the law had treated organized labor. The Act gave workers the ability to collectively organize and fight for better working conditions without fear of reprisal from their employer.7

Before the passage of the NLRA the law treated organized labor as criminal conspiracies and unlawful combinations in violation of the Sherman Antitrust Act.8 Employers frequently brought antitrust claims against unions and the courts frequently enjoined union organizing activities as unlawful.9 Another tactic used by employers during the late 1800s and early 1900s was to have employees sign individual contracts of employment, which prohibited them from joining or acting on behalf of a union.10 These "yellow-dog" contracts were successful at deterring union activity for a number of reasons. The main reason was that the contracts allowed employers to seek injunctions against union organizers. The employers argued that the organizers were attempting to cause their employees to breach the private contracts the employees had with their employers.11

Congress substantially changed how the law dealt with unions when it passed the Norris- LaGuardia Act in 1932.12 The Norris- LaGuardia Act outlawed yellow-dog contracts and limited a court's ability to issue injunctions against union organizing and collective bargaining activities. Strict procedural limitations were imposed on courts' ability to issue injunctions relating to strikes, picketing, and boycotts. Although the Act had little enforcement powers, the federal government had taken a big step in having a more even-handed approach to disputes between organized labor and management.13

While the Norris- LaGuardia Act was a big step in the right direction, employees who joined unions or who engaged in collective action continued to lack protection from reprisal by their employers for their union activities.14 Prior to the enactment of the NLRA, employers had the right to spy upon, question, punish, blacklist, or fire their employees for becoming part of a union, for taking part in strikes, or for engaging in collective action.15 The NLRA would change that by protecting workers' rights to use collective action for the purpose of negotiating the terms and conditions of their employment or for other mutual aid or protection.16

At the core of the NLRA is ? …

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