From the abstract:
In this Article, we ask what vehicles for worker advocacy and representation at a collective level are most likely to support a healthy democracy and a more just distribution of wealth, and (notwithstanding the NLRA) what legal architecture will nurture them. Our answer to the first question is “many mechanisms.” The best hope for a revived labor movement appears to lie with new actors such as workers’ centers, community and occupational groups, and identity caucuses that can work in partnerships with established unions; class action plaintiffs’ firms dedicated to enforcing workplace rights; and government agencies and attorneys general. The experience of these groups with law thus far is instructive because it signals hostility to group rights and collective action in the workplace context beyond labor law. Accordingly, reforming labor law will not be sufficient. A bolder approach is necessary. On the second question, then, we contend that more robust constitutional protection for group action in its many forms is essential to create breathing space for worker mobilization. That protection can and should be founded upon the First Amendment freedom of assembly. Relying on a vigorous body of First Amendment scholarship that emphasizes the role that assembly rights have played in our constitutional tradition, we offer a preliminary sketch of how reframing labor rights as assembly rights might expand legal protections for labor unions and other worker advocacy efforts, and shore up democracy in the process.
Our argument proceeds in four parts. Part I treads ground familiar to labor scholars, describing the role that judicial hostility to group action has played in cabining group rights in the labor law context. Part II describes the new vehicles for collective worker activism that have developed to fill the gaps left by the decline of conventional unions, and assesses the law’s response to their strategies. We explain how law has been hostile to collective action by workers even where unions and labor law are not involved. This hostility is manifested most starkly in a recent series of decisions from the Supreme Court narrowing the availability of class claims by workers in workplace-based litigation and arbitration. Because class claims may play a critical role in the formation of group identity, these developments stifle nascent forms of worker activism. Part III contends that a new legal frame is essential to support group rights, and looks to a revitalized First Amendment right of assembly. Part III also discusses the implications of this reframing, explaining why the new frame is vital to a healthy democracy. Part IV outlines how such a frame might alter the existing labor law regime.
Reframing labor rights as assembly rights would offer modern unions and other worker advocacy groups a new rhetorical tool in the struggle to win hearts and minds. Constitutional rights are accessible to the public and to workers in a way that statutory mandates are not. Thus, they are more likely to be effective in the crusade to rebrand labor unionism. Unions, worker centers, and other advocacy groups should consider appealing to the public to support the constitutional right to assembly in the context of rallies, pickets, boycotts, demonstrations, and social media appeals designed to advance workers’ rights. They might reform their marketing strategies, including websites, publicity, handbills, and other mediums to foreground assembly rights. Further, the constitutional stature of the assembly right could ground serious challenges in court to portions of the labor law that hamstring both unions and new forms of worker advocacy groups, particularly restrictions on picketing, secondary boycotts, the strike weapon, and group litigation conducted as part of an organizing drive. It might also, however, ground challenges to parts of the statute that labor holds dear, including exclusive representation and the ban on company unions.