Category Archives: Organizing & Protests

Worker Centers and Labor Law Protections: Why Aren’t They Having Their Cake?

Source: Kati L. Griffith, Berkeley Journal of Employment and Labor Law, Vol. 36 no. 2, 2015

As private sector labor union membership in the United States dwindles, the number of worker centers continues to grow. In 1985, there were just five worker centers in the United States. Today there are more than 200 such centers. Worker centers are often broadly defined as “community-based mediating institutions that organize, advocate, and provide direct support to low-wage workers.” Given worker centers’ focus on low-wage workers largely engaged in service sectors of our postindustrial economy and their relatively recent entrance into the field of United States labor relations, scholars and commentators are increasingly debating the applicability of the eighty-year-old National Labor Relations Act5 (NLRA) to the worker organizing activities of these emerging organizations.

As Part I will elaborate upon, until now, those who have examined the applicability of the NLRA to worker centers have focused on whether the NLRA’s restrictions on “labor organizations” apply to worker centers. …. Part II considers the extent to which NLRA protections have been helpful to worker center organizing efforts to date. …. Part III proposes several theories to explain why worker centers have not turned to the NLRA’s protections more proactively. In conclusion, the essay proposes a framework for future empirical work in this area. ….

Labor Protest Under the New First Amendment

Source: Catherine Fisk and Jessica Rutter, Berkeley Journal of Employment and Labor Law, Vol. 36 no. 2, 2015

Low-wage workers across the country have recently gripped the nation’s attention with public demonstrations calling for workplace fairness. But as these workers and the unions supporting them employ new and innovative strategies to organize their workplaces and improve their working conditions, employers and the National Labor Relations Board have charged them with violating section 8(b)(7) of the National Labor Relations Act, which prohibits peaceful picketing to organize workers or gain employer recognition of a union. This article analyzes the history and impact of labor picketing restrictions in light of the Supreme Court’s recent First Amendment jurisprudence. We demonstrate that the National Labor Relations Board, its enforcement officials, and the courts can no longer apply old law prohibiting picketing for recognitional and organizational objects. The NLRA’s prohibitions on labor unions picketing to obtain recognition or get workers to join them are unconstitutional speaker-based and content-based discrimination. We describe how the Board and the courts can adopt narrower interpretations of labor picketing that accord with the Supreme Court’s recent First Amendment cases. Specifically, we advance three proposals to bring the Board’s interpretation and enforcement practices into compliance with the Constitution, and a fourth approach that might at least partially address the constitutional infirmities of the Board’s current approach. All of these proposals aim to ensure that section 8(b)(7) will be violated only by conduct that actually or imminently coerces employees or companies in the selection of a bargaining representative through methods other than peaceful persuasion of consumers or employees to cease doing business with the firm.

The Union of the Future

Source: Michelle Miller, Roosevelt Institute, Thought Brief, Next American Economy Convening, July 6, 2015

Michelle Miller, co-founder of Coworker.org, asks what the union of the future will look like. … As remote work has become easier, so too has the transition to the use of independent contractors instead of full-time employees. …. In essence, we have an entire government and union structure designed to ensure economic stability for workers—but one that no longer matches the situation in which many people actually work. …. The union of the future will be structured radically differently to meet the needs of workers in the emerging platform-based economy. It will transition from focusing solely on generating and supporting collective bargaining agreements to providing a variety of services to these workers. It will only thrive in a federal policy environment that is willing to reimagine its own definitions of work. The union of the future will combine elements of platform-based global networks of employees, facilitated mutual aid, and revamped trade unions. ….

Widening the Scope of Worker Organizing: Legal Reforms to Facilitate Multi-Employer Organizing, Bargaining, and Striking

Source: Roosevelt Institute, October 7, 2015

From the summary:
For legal, social, and economic reasons, it is difficult for worker organizations to organize, bargain, and strike across entire contractual supply-chains, networks, industries, occupations, or regions.

This paper proposes four large-scale reforms to diminish these difficulties and actively facilitate organizing and striking across multiple employers:

First, an entity should be deemed an “indirect” employer of multiple “direct” employers’ workforces if it has “sufficient bargaining power” to determine the standards of all the employees in question, even if the entity is not currently exercising such power. By organizing and bargaining with that single entity, a worker organization would effectively organize and bargain with what is currently deemed a multi- employer association.

Second, the law should authorize worker organizations to unilaterally choose multi-employer units. And, if a government agency is called upon to select among differing units chosen by different worker organizations, the agency should define units based on the criterion of “maximum potential worker empowerment.”

Third, legal reform should authorize bargaining units that are defined not only by employer boundaries but also by such categories as geographic region, production-and-distribution network, occupation, or industry.

Fourth, bargaining rights or the substantive terms of collective agreements should extend across multiple employers even if only a minority of unit workers have affirmatively shown their support for the organization.

Each of these reforms would require large-scale legislative transformation and zealous enforcement that are only imaginable in the event of deep progressive renewal in our politics. The four reforms could be enacted separately but would, if concurrently implemented, be mutually reinforcing.

Metropolitan Coalitions: Creating Opportunities for Worker Organizing

Source: Ben Beach and Kathleen Mulligan-Hansel, Roosevelt Institute, October 7, 2015

From the summary:
Today, the ever-more-attenuated relationship between workers and companies with economic power over their jobs creates obstacles for those who wish to expand opportunities for worker organizing, especially among low-wage workers. The ever more distant nature of the relationship between unions and communities makes those obstacles harder to surmount.

Changing this landscape will require new strategies. Major cities are the place to start, as they are where capital wants to be, where favorable politics and constituencies are concentrated, and where government has the power to shape regional economies for the better. In the last several years, community-labor coalitions working in cities have demonstrated what is possible. Working in permanent coalition, they are winning campaigns that push cities to transform local sectors of the economy, raising standards for all workers and creating better conditions for organizing. Their campaigns have focused on, among other things, community benefits at major development projects, real construction careers for excluded communities, and a waste and recycling sector that respects workers, the environment, and local communities. Those interested in expanding opportunities for worker organizing should invest in such strategies.

Labor Standards and Worker Organization Strategy

Source: Michael J. Piore and David W. Skinner, Roosevelt Institute, October 7, 2015

From the summary:
This paper explores a new strategy for workplace-based worker organizations. The strategy is suggested by the contrast between the U.S. system of work regulation, in which regulations are administered by a number of different agencies, each with a relatively narrow jurisdiction, and the system prevailing in Southern Europe and Latin America, where a single agency administers the whole of the labor code. The latter system is particularly effective where, as is generally the case, the work practices of a company are interrelated and “patterned.” The patterns typically reflect the company’s production practices and business strategy; these are the ultimate determinant of work practices and need to be adjusted if violations are to be remedied. The Franco-Latin approach encourages the regulatory agency to recognize these patterns, and then to look for remedies that address the root causes.

Workplace-based worker organizations could simulate the Franco-Latin approach by identifying violations, bringing complaints simultaneously to all the different agencies that have jurisdiction over them, and pressuring those agencies and employers involved to work together with the worker organization to identify the underlying causes of the problems and develop appropriate remedies. This strategy could be developed by a local organization operating on its own or in coordination with other organizations at the local, state, or national level on the model of the recent campaigns to raise the minimum wage.

Union Organizing in National Labor Relations Board Elections

Source: Dorian Warren, Roosevelt Institute, October 7, 2015

From the summary:
Is the National Labor Relations Board (NLRB) broken? Yes. But does that mean it is irrelevant for workers attempting to organize? No. As data in this paper shows, particularly when focused on certain demographic groups, labor unions are still using the NLRB, and in many cases, very effectively.

This paper examines the use of the NLRB election process since 2000, and especially from 2008 to 2012. The author finds that while the majority of new private sector union members have not gained recognition through the broken NLRB election process, the data show a significant number of workers who do in fact gain representation through NLRB elections. The data also show a notable decline in the numbers of workers gaining unionization through the NLRB, though at the same time, the “win” rates of workers who do use the process have increased over the last decade.

Based on analysis of original data on the demographics of those organized using the NLRB process, the win rates for workers in NLRB elections increases with the diversity of the workplace. specifically, workers of color, women, and especially women of color overwhelmingly vote in favor of unionization through the NLRB election process.

Defining Peaceably: Policing the Line between Constitutionally Protected Protest and Unlawful Assembly

Source: Tabatha Abu El-Haj, Drexel University Thomas R. Kline School of Law Research Paper No. 2015-A-03, July 30, 2015

From the abstract:
The Black Lives Matter movement provides a unique opportunity to revisit the First Amendment’s protection of a “right of the people to peaceably assemble.” Even more than the Occupy movement, the recent protests against the frequency with which unarmed African Americans die as a result of police officers’ actions illustrate the serious consequences that flow from the Supreme Court’s failure to appreciate that the First Amendment identifies a particular form of conduct – public assembly – for separate constitutional protection. The fact that the Black Lives Matter protests often bear little resemblance to our idealized conceptions of public discourse – as reasoned disquisitions on difficult choices of public policy – underscores why the Founders recognized the need for a separate clause to protect assembly and the process of redressing grievances. It thereby illustrates why the Supreme Court’s contemporary jurisprudence, which collapses the right of assembly into the freedom of speech, is thoroughly misguided – leaving protestors feeling that First Amendment protections are weak and lower courts confused about how to decide how much disruption officials constitutionally ought to be required to tolerate. In sum, this essay uses the recent protests as an opportunity to consider why outdoor assembly remains a valuable form of political participation, even in the digital age, and why it deserves more robust constitutional protections.

Union Organizing Decisions in a Deteriorating Environment: The Composition of Representation Elections and the Decline in Turnout

Source: Henry Farber, ILR Review, Vol. 68 no. 5, October 2015
(subscription required)

From the abstract:
It is well known that the organizing environment for labor unions in the United States has deteriorated dramatically over a long period of time, a situation that has contributed to the sharp decline in the private-sector union membership rate and resulted in many fewer representation elections. What is less well known is that since the late 1990s, average turnout in the representation elections that are held has dropped substantially. These facts are related. The author develops a model of how unions select targets for organizing through the NLRB election process that clearly implies that a deteriorating organizing environment will lead to systematic change in the composition of elections held. The model implies that a deteriorating environment will lead unions not only to contest fewer elections but also to focus on larger potential bargaining units and on elections where they have a larger probability of winning. A standard rational-voter model implies that these changes in composition will lead to lower turnout. The author investigates the implications of these models empirically, using data on turnout in more than 140,000 NLRB certification elections held between 1973 and 2009. The results are consistent with the model and suggest that changes in composition account for about one-fifth of the decline in turnout between 1999 and 2009.

Careful What You Wish For: A Critical Appraisal of Proposals to Rebuild the Labor Movement

Source: Lance Compa, New Labor Forum, Vol. 24 no. 3, Fall 2015
(subscription required)

From the abstract:
Alarmed at declining union density and frustrated with the National Labor Relations Act, many worker advocates want to ditch the NLRA, forsake traditional unions, and start the labor movement afresh. Ideas include making “Alt-labor” a new launching pad; replacing face-to-face union building with high-volume digital organizing; applying the Civil Rights Act to union activity; adopting “members-only” bargaining alongside majority rule and exclusive representation; letting unions make non-members pay for handling their grievances; and even conceding a national “right-to-work” law so unions will try harder to win workers’ support.

Social movements should always examine new strategies. But they should not let novelty overwhelm judgment. Many of these new ideas are clever in theory, but in practice would undermine unions and shift more power to employers and anti-union political forces.