The Yale Law Journal

VOLUME
126
2016-2017
NUMBER
1
October 2016
1-261
Article

The New Labor Law

Kate Andrias

abstract. Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining among workers has little to offer those it purports to protect. Several scholars have suggested ways to breathe new life into the old regime, yet their proposals don’t solve the basic problem. Labor law developed for the New Deal does not provide solutions to today’s inequities. But all hope is not lost. From the remnants of the old regime, the potential for a new labor law is emerging.

In this Article, I describe and defend the nascent regime, which embraces a form of social bargaining long thought unattainable in the United States. The new labor law rejects the old regime’s commitment to the employer-employee dyad and to a system of private ordering. Instead, it locates decisions about basic standards of employment at the sectoral level and positions unions as political actors empowered to advance the interests of workers generally. This new labor law, though nascent and uncertain, has the potential to salvage and secure one of labor law’s most fundamental commitments—to help achieve greater equality, both economic and political—in the context of the twenty-first century economy.

author. Assistant Professor, University of Michigan Law School. For helpful feedback at various stages of this project, I am grateful to Sam Bagenstos, Bill Novak, and Richard Primus, as well as to Nick Allen, Laura Beny, Jim Brudney, Ross Eisenbrey, Cindy Estlund, Rich Friedman, Scott Hershovitz, Don Herzog, Jim Hines, Ellen Katz, Sophia Lee, Nelson Lichtenstein, Mathias Reimann, Daphna Renan, Judith Resnik, Ben Sachs, Ganesh Sitaraman, Mila Sohoni, and Ted St. Antoine. Thanks also to the participants in the Beyond the New Deal Order Conference at U.C. Santa Barbara and in the Duke Law School faculty workshop. For excellent research assistance, I thank Rebecca Eisenbrey, James Joseph, Lexi Peacock, Megan Pierce, and the librarians at Michigan Law School. Finally, special thanks to the editors at the Yale Law Journal. Research for this project was funded in part by the Cook Endowment.


Introduction

American labor unions have collapsed.1 While they once bargained for more than a third of American workers, unions now represent only about a tenth of the labor market and even less of the private sector.2 In the process, the United States has lost a core equalizing institution in politics and the economy.3 Employment law, which protects employees on an individual basis irrespective of unionization, has not filled the void.4 Economic inequality is at its highest point since the Gilded Age, when unionization rates were similarly low.5 Workers have declining influence not only in their workplaces, but also in policymaking at the state and federal levels.6

For several reasons, current law offers little hope for reversing the trend.7 The familiar explanation, and the focus of most attempts at labor law reform, is that the National Labor Relations Act’s (NLRA) weak enforcement mechanisms, slight penalties, and lengthy delays—all of which are routinely exploited by employers resisting unionization—fail to protect workers’ ability to organize and bargain collectively with their employers.8 But two other factors are perhaps even more important to labor law’s failure to protect workers’ right to organize and bargain in ways that help redistribute both economic and political power. First, the NLRA, with its emphasis on firm-based organizing and bargaining, is mismatched with the globalized economy and its multiple layers of contracting.9 Indeed, these “fissured” corporate structures were adopted by employers in part to reduce labor costs and diminish the potency of the NLRA and employment law.10 Second, the NLRA was never designed to ensure the vast majority of workers significant influence over the economy or politics.11 Unlike legal regimes prevalent in Europe, the NLRA does not empower unions to bargain on behalf of workers generally, nor does it provide affirmative state support for collective bargaining.12 Instead, it establishes a system of voluntaristic, decentralized unionism: collective bargaining is a private negotiation between individual employers and employees at worksites where a majority has chosen to unionize.13

Some scholars have suggested ways to mend the old regime.14 But their proposals do not solve the basic problem: labor law, developed during and after the New Deal, has been rendered inapt by contemporary managerial strategies and fails to provide tools capable of redressing today’s inequities. Recognizing these limitations, many of labor’s proponents have abandoned the project of labor law altogether, concluding that unionism in the contemporary political economy is hopeless.15

But the demise of the twentieth-century labor law regime is not the end of the road for the rights and interests of working people. Since 2012, over two dozen states and many more localities have raised their minimum wages.16 Several of these, including California and New York, have enacted increases to $15 an hour—nearly $8 an hour more than the federal minimum—to be phased in over time.17 Just a few years ago, increases of this scope and magnitude would have been unthinkable.18 The wage laws have been accompanied by new regulations providing scheduling protection, sick time, and other benefits.19

At first glance, these seem to be ordinary state and local employment statutes, separate and apart from the law that governs collective activity by workers.20 But the sea change comes in response to a range of worker movements, especially the “Fight for $15,” a campaign of low-wage workers organized by the Service Employees International Union (SEIU).21 The express goal of these campaigns is not just higher wages but also “a union.”22 And many of the new laws they have won are a product of bargaining, either formal or informal, among unions, employers, and the state.23

From the efforts of these social movements, the outline of a new labor law is emerging. That outline is nascent and contested; chances of success are uncertain at best, and the specifics of what success would look like are far from clear. But from the social movements’ efforts one can derive a path toward a new labor law regime that is distinct from, even oppositional to, the legal regime that has governed since the New Deal. The new labor law would combine social bargaining—i.e., bargaining that occurs in the public arena on a sectoral and regional basis—with both old and new forms of worksite representation. It is a more inclusive and political model of labor relations, with parallels to regimes in Europe and elsewhere.24 And it has the potential to salvage and secure one of labor law’s most fundamental commitments: to help achieve greater economic and political equality in society.25

The new labor law promises several important changes. First, it would reject the old regime’s commitment to the employer-employee dyad.26 It would locate decisions about basic standards of employment at the sectoral, industrial, and regional levels, rather than at the level of the individual worksite or employer. Second, the new labor law would reject the principle of private ordering that was cemented in the years following the New Deal, under which labor negotiations are a private affair and the state plays a neutral and minimal role.27Instead, the new labor law would position unions as political actors representing workers generally and would involve the state as an active participant in supporting collective bargaining—in a system I will term “social bargaining,” but which is also known as “tripartism” or “corporatism.”28 Third, and related to the first two moves, the new labor law would reject the bifurcation between employment law and labor law that has governed since the New Deal by rendering the basic terms of employment for all workers subject to social bargaining.29

In an important sense, the new labor law is not, in fact, new. It is a reinterpretation of principles advanced by earlier incarnations of the American labor movement30 and embraced by systems abroad.31 But support for a system of labor law that empowers unions to bargain on behalf of all or most workers, with active support from the state, has long been considered to exist only in the “political ozone.”32 The goal of social bargaining, the conventional wisdom holds, is unmoored from reality33 and has no hope of passage.34 However, this Article shows that a nascent form of social bargaining is developing organically in the United States.

The contribution of this Article is both descriptive and normative. I unearth the seeds of this new labor law and consider potential avenues for its growth, as well as likely hurdles.35 I also defend the nascent labor law as a partial solution to the problems of economic and political inequality facing the nation,36 as well as a way to protect workers’ fundamental associational rights.37 At the same time, I recognize the nascent regime’s limitations, including the inherent shortcomings of a domestic labor regime in an increasingly global economy38and the challenge of maintaining worker voice and union funding in a system not based primarily on traditional exclusive bargaining agreements.39Moreover, in a political environment hostile to reform, the new labor law is by no means certain, nor is it the only possible path forward. Some ongoing organizing efforts embrace certain of its principles—e.g., sectoral bargaining—but not others—e.g., its public or statist commitments; others experiment with different forms of worker voice and ownership.40 The ambition of this project is not to prove that the nascent system of social bargaining is inevitable, nor to offer it as a complete solution to contemporary labor problems, but rather to document, analyze, and defend this important development.

A final caveat is in order: not everyone agrees that creating greater political and economic equality should be central functions of labor law.41 I embrace those goals, however, and this Article assumes their validity without engaging the first-order debates. It also prioritizes the concern with achieving greater equality and leaves for another day important questions about how the emerging law’s design could best accommodate other objectives, such as economic efficiency and productivity, internal union democracy, and industrial peace. Finally, the nascent labor law described in this Article raises numerous questions about the level of government at which labor law is and should be determined. The focus of this piece, however, is not on problems of federalism (or globalism), but rather on the substantive contours and structure of labor law.

Part I describes the New Deal’s labor law regime, traces its commitments, and explains why it fails workers today—and why employment law does not solve the problem. It then recounts past efforts to respond to the deficiencies of labor law—either by resuscitating the NLRA model or by abandoning it altogether. Part II furnishes a case study of the “Fight for $15” and related social movements and shows that, from close examination of their efforts, the outline of a coherent and fundamentally changed labor law emerges. I challenge existing accounts of these social movements, which describe them as “improvisational,” scattershot, or quixotic.42

Part III evaluates the incipient labor law, contrasting it to the existing system of firm-based collective bargaining, on the one hand, and a post-union regulatory or self-governance approach, on the other. In so doing, this Part draws on models of social bargaining from Europe and elsewhere. Part IV analyzes the legal innovations now underway within labor law as a result of the ongoing movements; offers some initial recommendations for further statutory and doctrinal changes; and considers possible legal hurdles. Ultimately, while more work is needed to fill in the new labor law’s contours and make its aspiration a reality, social bargaining represents a promising strategy for building a more equitable, inclusive, and democratic future—not just for workers, but for the country generally.

i. labor law’s decline and failed revival

A. The NLRA

1. From Wagner to Taft-Hartley: The System of Decentralized, Private Representation and Bargaining

The story of labor’s rise—and then its steady and relentless decline—is, in large part, a story about law. The logical place to begin is in 1935, during the throes of the Depression. In the face of rising labor unrest, Congress enacted the Wagner Act, the original National Labor Relations Act.43 The NLRA recognized the right “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities, for the purpose of collective bargaining or other mutual aid or protection.”44 A sweepingly broad statute, the Act established the types of organizations workers could form, the procedures for doing so, and the subjects over which employers were required to negotiate, as well as an independent regulatory agency—the National Labor Relations Board (NLRB)—to enforce the regime.45

Until this point, the Supreme Court had narrowly interpreted Congress’s power to legislate in the area of labor and employment: the Court had struck down numerous protective statutes on the grounds that they did not sufficiently implicate interstate commerce46 or that they violated the liberty of contract.47 But two years after the Wagner Act’s passage, the Court, in a surprising about- face from its earlier precedent, upheld the Act as a proper exercise of Congress’s Commerce Clause authority.48 In so doing, the Court inaugurated both the modern era of federal legislative power and the modern era of American labor law.

On one account, the NLRA was, from its inception, a relatively conservative statute.49 It represented an effort to deradicalize an increasingly powerful and militant workers’ movement.50 It also embodied the values of the more conservative elements of the American labor movement. That is, the statute reflected the early twentieth-century American Federation of Labor’s commitment to private collective bargaining at the firm level instead of the class-based political or social bargaining that was advocated for by other strands of the American labor movement and that ultimately took hold in some European countries.51 Indeed, the NLRA represented a break from the nation’s previous, short-lived labor statute, the National Industrial Recovery Act (NIRA),52 and other progressive and early New Deal era experiments, which invited trade associations and union leaders to establish wages and other working conditions jointly with the government.53

In contrast, the NLRA facilitated union representation and bargaining at the level of the individual worksite and the individual employer. In some industries, unions were able to achieve sufficient density to force industry-wide or pattern bargaining, but the legal regime did not require it.54 Moreover, under this system, the union’s primary role was to represent the interests of its members through private collective bargaining, and the state’s role was to serve as administrator and supervisor, rather than co-negotiator.55 The NLRA also excluded millions of the most vulnerable workers—namely, domestic and agricultural workers—from its coverage.56

On another account, however, the Act was “perhaps the most radical piece of legislation ever enacted by the United States Congress.”57 It announced an affirmative national policy in favor of collective bargaining and economic redistribution; worked a fundamental change in the common-law employment relationship; and promised a system of nationwide industrial democracy.58 Section 7 was particularly revolutionary, as it protected not only the right of unionized workers to bargain, but also the right of all workers to engage in concerted action for mutual aid or protection.59 Senator Wagner went so far as to assert that the Act was “the next step in the logical unfolding of man’s eternal quest for freedom.”60

Whatever the Wagner Act’s initial promise, the years following the Act’s passage gave rise to fierce political and legal conflict over its construction and application. Unions experienced a period of rapid growth and wielded significant economic and political power in the early New Deal state.61 But they were also met with significant resistance from the business community, including in the form of legal challenges.62 At the urging of employers, Supreme Court interpretations of the NLRA soon began to curtail utopian aspirations for a radical restructuring of the workplace.63 The Court, among other things, undercut the Act’s protection of the right to strike, made it easier for employers to oppose union campaigns, and generally shored up managerial rights of control over the workplace.64

Wartime mobilization temporarily strengthened labor’s position and moved the legal regime away from private bargaining at the firm level toward a more inclusive, political, and statist form of unionism.65 Under wartime pressure, the federal government invited labor and corporations into tripartite bargaining over national wage and economic policy.66 For a period, the United States seemed poised to move to the kind of labor-backed corporatism or tripartism that would later characterize social policy in much of Europe and Scandinavia.67 In the war’s aftermath, however, the trade union movement found its efforts to maintain influence over the shape of the political economy stymied.68 Trade unions faced a slew of hostile court decisions, a powerful remobilization of business and conservative forces in the legislative arena, and the dismantling of state-sponsored bargaining.69

In 1947, at the behest of business, and buoyed by popular concerns about rising labor militancy and union abuses, Congress passed the Taft-Hartley Act over President Truman’s veto.70 Taft-Hartley cemented labor law’s commitment to private, firm-based bargaining while reducing the government’s support for unionization.71 No longer did the Act favor concerted action and collective bargaining; instead, it embraced employees’ “full freedom” to engage in or refrain from such activity.72 In addition, Taft-Hartley limited the ability of unions to exert economic pressure across employers: it prohibited secondary boycotts, wherein workers exert economic pressure by refusing to handle goods from another firm embroiled in a union dispute.73 The amendments also placed other restrictions on the kinds of strikes allowed. Meanwhile, Taft-Hartley permitted states to enact “right-to-work” laws, which allow workers to opt out of paying union dues while maintaining a duty on the union to represent even non-contributing workers.74 Finally, Taft-Hartley codified the Supreme Court’s prior decisions allowing employers to campaign against unions as long as they did not engage in threats of reprisals or promises of benefits;75 expressly excluded independent contractors and supervisors from the law’s protection;76 and required officers of unions to sign affidavits asserting they were not Communists.77

The passage of Taft-Hartley was widely viewed by the labor movement as a resounding defeat.78 Yet the extent to which the law would ultimately fail to protect workers’ rights to engage in concerted action and collective bargaining, even at a narrow firm-based level, would not become clear for some time. Rather, the postwar years were marked by relative prosperity among organized workers.

Because unions in industries like auto and steel had already achieved significant density, they were able to force employers to engage in pattern or industry-wide bargaining, despite the absence of any legal obligation to do so.79 In exchange for assurances of industrial discipline and stability, unions won substantial wage increases with cost of living adjustments, pensions, and generous health benefits.80 The result was that workers in these highly organized, oligopolistic industries—albeit largely white men—made significant gains, helping produce one of the most economically egalitarian periods in American history.81 During these decades, increases in productivity consistently led to wage and benefit increases for middle-income Americans.82

At the same time, the 1950s and 60s were marked by complacency among many union leaders and members. Willing to settle for a private, depoliticized system of bargaining, many unions failed to organize new members;83 some actively resisted membership by non-white workers.84 Other unions sought to organize women and people of color, but they faced intense opposition from business, particularly in the South.85 Meanwhile, employers, even in highly organized industries, began to develop a range of new management strategies that would ultimately lead to the near collapse of labor unions in the private sector.86

2. Economic Restructuring, Law, and Deunionization

By the 1970s, unions had become more inclusive of minority and women workers and had organized large numbers of public-sector employees, as well as some key parts of the service sector.87 The growth of unions in the public sector in particular meant that labor still had significant membership and resources.88 But, in the private sector, unions were on the verge of losing much of their economic power—and the law would prove to be little help.

Over the course of the 1970s, 80s, and 90s, American businesses, faced with increased domestic and international competition, as well as restive capital markets and a push for higher profits, reshaped themselves.89 Capital moved—both down South and overseas.90 Manufacturing and industrial sectors of the economy shrank.91 And corporations “fissured.”92 They shed activities deemed peripheral to their core business models and contracted out work to domestic and foreign subcontractors.93 They also shrunk the portion of their labor force that enjoyed full-time work, vastly increasing their use of “contingent” workers—part-time and temporary workers and independent contractors—as well as automated technology.94

Multiple factors drove the economic restructuring, including the desire to increase efficiency and reduce labor costs by focusing on core business competencies.95 Avoiding unionization became a primary goal for many businesses. Following the lead of President Reagan in his fight against the air traffic controllers, employers began to retaliate aggressively against employees who exercised their right to strike.96 Employers permanently replaced striking workers.97 They also closed union plants and opened up low-wage nonunion plants in other locations; double breasting and subcontracting allowed employers to bypass existing collective bargaining arrangements.98 They developed sophisticated campaigns to try to stop workers from organizing new unions.99

The courts largely permitted these tactics, privileging employers’ managerial and property rights over employees’ rights to organize, bargain, and strike. In a series of cases, for example, courts ruled that employers were not required to bargain over entrepreneurial decisions, including where to operate.100 They also permitted the use of permanent replacements, the National Guard, and state police against striking workers who sought to resist concessionary contracts.101 Meanwhile, deregulation reduced barriers to entry by nonunion, lower-wage firms, particularly in industries like transportation and telecommunication, resulting in more competitive markets but further contributing to unions’ declining power.102

The trends of deindustrialization, outsourcing, and antiunion campaigning continued during subsequent decades, resulting in a contemporary American economy almost unrecognizable from the one that defined the New Deal.103 Business gained more flexibility and higher profits, although disintegration of the production process meant that firms often had less control over their labor forces and decreased ability to achieve brand consistency and market power. The effect on workers was substantial. New jobs were created, and prices on many consumer goods decreased. But wages stagnated.104 Workers increasingly came to fill contingent, nontraditional positions.105 And as a proportion of the entire workforce, union membership declined from twenty-nine percent in 1973 to about fifteen percent in the early 1990s, even though more than sixty percent of workers continued to report a desire for collective representation.106

In the face of this transformation, the NLRB no longer could effectuate employees’ statutory rights to form and join labor organizations.107 Indeed, by 1984 the House Subcommittee on Labor-Management Relations released a report announcing “The Failure of Labor Law.” The NLRA, the House committee concluded, “has ceased to accomplish its purpose.”108 Countless scholars and commissions subsequently echoed the assessment.109 Indeed, even those academics, judges, and politicians who celebrated the NLRA as a continued success did so for its ability to further industrial peace—not for its ability to protect the right to organize or to facilitate workers’ collective economic or political power.110

Notably, other industrialized countries experienced similar trends of globalization, the fissuring of the traditional employment relationship, and the use of automation. But unions in these countries did not experience the same collapse as American unions. In some countries, union density has remained steady or even increased, while income distribution has remained relatively constant.111

To understand how American labor law failed, one must first understand its basic structure. The NLRA is premised on a principle of majority rule at particular worksites. If a majority of workers in an “appropriate” bargaining unit selects representation by a union,112 that union becomes the exclusive collective bargaining representative for all workers in the unit.113 Typically, selection occurs through a secret-ballot election, with the government agency serving as a neutral arbiter.114 Once a bargaining representative is elected, the employer has an obligation to bargain in good faith.115

A well-developed critique by labor scholars focuses on how the governing rules of union elections fail to protect workers’ statutory right to organize in the face of concerted management opposition.116 Among its many problems, the law provides employers with great latitude to dissuade employees from self-organization, while offering unions few rights to communicate with employees about unionization’s merits.117 Unions are denied physical access to the workplace during an organizing campaign, but employers are permitted to compel employee presence for antiunion communication.118 Meanwhile, the NLRB’s election machinery is extraordinarily slow; employers are able to defeat organizing drives through delay and attrition.119

Perhaps most important, the NLRB’s remedial regime is too protracted and its penalties too meager to protect employees against employer retaliation.120 One study found that about twenty-five percent of employers illegally discharge workers for union activity; more than one-half make illegal threats to close all or part of a plant.121 When such illegal activity occurs, remedies are too little, too late. Employers who illegally terminate employees are liable only for backpay, minus any wages the worker has earned in the meantime—and the worker is obligated to mitigate any damages by looking for new employment.122 Further, the median length of time between the filing of an unfair labor practice charge and the issuance of a Board order has been close to 500 days.123

The statute’s goal of facilitating collective bargaining fares no better. The regime’s “good faith” bargaining obligation is undermined by the Board’s inability to impose contract terms as a remedy for a party’s failure to negotiate in good faith. Thus, an employer determined to resist collective bargaining can drag out negotiations for years, making plain its refusal to enter into an agreement with the union.124 Employees have little recourse. Not only are the Board’s remedial powers limited, but the employer’s “right” to permanently replace striking workers—established in 1938 by the Supreme Court but little used until the 1980s—“has rendered the strike useless and virtually suicidal for many employees.”125 Further weakening unions’ bargaining position, the Court has strictly limited the scope of mandatory subjects of bargaining, concluding that matters of entrepreneurial judgment need not be negotiated. For this reason, the employer may avoid unionization by closing its operations, by subcontracting, by “doublebreasting” through a nonunion company, or by moving production.126

Unions and their allies in Washington have repeatedly sought to reform the NLRA to reduce employer interference in organizing drives and to strengthen the bargaining obligation. The proposed reforms have all failed.127 The most recent bill, the Employee Free Choice Act (EFCA), would have required that the Board certify unions based on a showing that a majority of workers in a unit had signed cards indicating their desire for representation; the goal was to allow unions to avoid the NLRB’s dilatory election process.128 EFCA also would have mandated that parties unable to reach agreement on a first contract within four months submit to binding arbitration.129

The failure to pass EFCA and its predecessor reform bills were significant losses for the labor movement.130 However, the import of the defeats may be overstated. It is not clear that any of the reform proposals would have done much to transform the American labor movement into an effective and powerful advocate for American workers in the contemporary political economy: the proposed reforms all centered on altering the existing mechanisms of organizing and bargaining to make them more amenable to unions.131 Yet, those mechanisms—geared toward worksite bargaining between single employers and their employees—are fundamentally mismatched with today’s economy.132

Consider, for example, an auto manufacturer that once produced primary parts, assembled those parts into vehicles, and stored, transported, and distributed the vehicles to market.133 Now, that manufacturer is more likely to own only the assembly stage of production, relying on separate corporations—some foreign, some domestic—linked by exclusive or non-exclusive supplier-purchaser contracts, to perform the remaining functions.134 Or consider the modern retailer, which obtains goods from a host of factories and warehouses.135 Those factories have long been staffed by workers who are employed by entities other than the retailer itself.136 But in the contemporary economy, several contractors likely stand between any given factory or warehouse worker and the retailer. And the workers themselves are as likely to be classified as temporary employees or independent contractors as they are full-fledged employees.137 Within the retail store, some of those who labor may be employees—many temporary or part-time. But those who clean, repair, and secure the building are more likely to be subcontracted.138

Similarly, a building owner in a major city is now unlikely to hire many employees directly, instead entering into contracts with cleaning companies, security companies, landscapers, insurers, tenants, and others. So, too, a fast-food company may have a set of employees at its national headquarters, but it likely franchises with many small franchise owners, who in turn hire many part-time employees while contracting with cleaning companies, food suppliers, security companies, and others.139 Or consider Uber, part of the new “platform” economy,140 which has a team of lawyers, engineers, and high-tech workers at headquarters, but, it contends, only independent contractors providing the rides that make up the company’s core business.141

Throughout these and other ecosystems of disintegrated or fissured employers, the NLRA has been of diminished relevance. Employers operate outside its reach for several reasons. First, the statute does not cover non-traditional work relationships. Independent contractors are expressly exempted.142 Thus, if an entity like Uber is correct that its drivers are independent contractors—an issue now hotly contested—federal labor law would not protect them.143 In those circumstances, Uber could terminate drivers’ contracts in retaliation for concerted action and would be under no obligation to negotiate with a majority of drivers regarding the terms of their contract. FedEx, for example, has been successful in some circuits in resisting unionization efforts on the ground that its drivers are independent contractors.144 To be sure, the classification of such workers as contractors, and therefore not covered by the statute, is contested. UPS workers perform work identical to that of FedEx employees and are classified as employees—and are unionized. But employers have actively exploited the exclusions in labor law when restructuring and reclassifying their work relationships; meanwhile, faced with intense management opposition and plagued by internal divisions, unions have historically failed to develop new ways to organize these workers on any significant scale.145

Second, as Professor Mark Barenberg has recently detailed, the NLRA is designed to channel organizing drives between groups of employees and single employers—not to facilitate collective action across multiple employers.146 To win recognition, a worker organization must demonstrate majority support within one employer, and often within a subunit of that employer, within which workers share a “community of interest.”147 Moreover, only employers can be held liable for retaliating against workers for exercising their right to organize.148

The law does allow for “joint employers,” but from the 1980s until just recently, employers had been successful in advancing a narrow interpretation of the term.149 For over thirty years, the Board required an entity to exercise direct, immediate, and actual control over the terms and conditions of employment before the entity would be considered a joint employer.150 Under this interpretation, it was exceedingly difficult for workers to hold liable an entity that retaliated against them for organizing, unless that entity was their immediate employer. As discussed further in Section II.C.1, in 2016 the NLRB returned to the prior, more expansive standard in a case called Browning-Ferris.151 The majority held that “two or more statutory employers are joint employers of the same statutory employees if they ‘share or codetermine those matters governing the essential terms and conditions of employment.’”152 Several months later, in Miller & Anderson, the Board went a step further, holding that unions can seek representation elections in units that combine workers of one company with workers provided to the company by another organization as temporary or contract workers.153

These new developments are important attempts by the agency to respond to the realities of the contemporary fissured and contingent workforce, and, as discussed in Part IV, are an important step toward a new labor law regime—but they are still limited by the NLRA’s enterprise-focus. They do not reach companies that participate in a supply chain or economic network, without sharing control over terms and conditions of employment, nor do they reach separate employers in a single industry.154

Third, even if a worker organization were to succeed in organizing several units across multiple employers, the NLRA does not require the merger of the different units for purposes of bargaining.155 Multiunit bargaining is permitted and has been used in various industries where employers have agreed to it.156 But it is not required. The legal obligation to bargain rests only with the “employer,” and that employer is obligated to bargain only with its own “employees.” Indeed, from the 1980s until the recent Browning-Ferris decision, only direct employers, not employers sharing control over employment, would have been under an obligation to bargain with downstream employees.

Fourth, the law significantly limits the ability to engage in cross-employer economic action. When seeking to win improvements in wages, benefits, or working conditions, the worker organization is not permitted to exercise economic pressure over a “secondary” employer to put pressure on another employer, even when their businesses are intertwined, as long as they are not formally joint employers.157 A picket at corporate headquarters designed to coerce franchisees to negotiate a contract (assuming no joint-employment status) is thus illegal.158 Nor may a worker organization sign an agreement that commits an employer to contract exclusively with unionized suppliers or buyers.159

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 laws167—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.174 In Denmark, unions have played an even more active role in negotiating social policy.175 Unions and employers have, for example, collectively negotiated national policies on worker training and parental leave.176 Throughout many other European countries, the law provides for various forms of “contract extension,” where collective bargaining agreements are extended to apply to workers throughout a region or sector, effectively forming the basis for employment policy in those sectors.177

To be sure, the NLRA does protect, to some extent, workers’ political activity. Section 7 has been interpreted to extend to workers’ concerted activity that occurs through political channels—as long as such activity relates to employment issues.178 In addition,unions, like other organizations, may engage in electoral politics and lobby government officials.179 In some circumstances, they may also use political pressure to bring about concessions from employers regarding organization and collective bargaining.180 In practice, many unions spend a great deal of energy and money on political activity with significant effect.181 But while the law permits political action, it fails to empower unions at the political level, and it incentivizes a bureaucratic focus.

These features of American labor law matter not only for how unions spend their time and resources, but also for society more generally. When unions were large and strong, they helped engage workers in the political process and helped ensure that the government was responsive to the actual preferences of working people.182 When particular unions moved beyond a focus on workplace representation of existing members and pursued a broader social justice mission at the sectoral, national, and political level, they helped bring about significant improvements in the lives of all working Americans.183 Conversely, the decline in unionization rates and the failure of American law to structure unions in ways that facilitate workers’ collective political power has contributed to a politics in which government is particularly responsive to the wealthy.184

B. Employment Law: Distinct and Insufficient

Of course, labor law, which aims to protect collective action among workers, represents only one facet of American workplace law. Another is employment law, which offers “rights and protections to employees on an individual—and individually enforceable—basis.”185 Yet employment law suffers from as many limitations as labor law in the contemporary political economy.

Employment law comprises a wide range of federal laws, including Title VII and other antidiscrimination statutes,186 the Fair Labor Standards Act (FLSA), the Occupational Safety and Health Act (OSHA), and the Family and Medical Leave Act (FMLA).187It also includes numerous state statutes and state common law doctrines.188The state and federal laws operate largely independently of any collectivization in the workplace.189They prohibit discrimination on the basis of race, sex, and national origin, as well as other protected characteristics; and they guarantee minimum standards and fair treatment, including minimum wages, maximum hours, safe working conditions, and a modicum of family leave.

As labor law became ossified and decreased in relevance over the last few decades, employment law grew increasingly important.190 In particular, the antidiscrimination statutes—the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act—worked an important transformation in the American workplace. Together, they opened up employment opportunities for millions of Americans.191 More recently, the FMLA and the Affordable Care Act provided important new guarantees of economic benefits: unpaid family leave and the right to purchase medical insurance.

To great extent, the expansion of employment law is compatible with labor law. Like labor law, much employment law aims to improve workers’ economic and social position to create greater societal equality.192 Rather than displacing collective bargaining, most employment law statutes set a floor in the workplace above which unions can negotiate. As such, employment law functions to fulfill the substantive goals of unions and to extend the benefits won by unionized employees to a broader set of workers. Certain employment law statutes also include provisions that facilitate and protect collective action among workers.193

At the same time, scholars have documented tensions between the two regimes.194 Employment law and labor law embrace fundamentally different approaches to protecting workers: bestowing individual rights in the case of employment law; facilitating collective power in the case of labor law.195 Though these two approaches can be—and have been—mutually reinforcing, they can also conflict. Historians have documented how the rise of rights-conscious liberalism undermined trade unionism in particular ways.196 For example, conservative antiunion lawyers successfully adopted the arguments of the civil rights movement to advance their vision of a “right to work” free from union dues.197 And in some circumstances, courts applied a broad labor preemption doctrine to deny unionized workers the benefit of state law employment rights.198

Not only did tensions emerge between the NLRA and individual rights regimes, but employment law was unable to fill the void left by a weakened labor movement and a labor law that failed to protect workers’ ability to organize and bargain.199 Enforcement of employment law is lax and violations are rampant, particularly in the fissured workplace.200 Moreover, as with labor law, when employment is contracted out, fewer rights attach.201 And court remedies are often unavailable because of mandatory arbitration clauses.202 Finally, the substantive rights provided by employment law, even when enforceable, are paltry compared to those in other industrialized countries and to those guaranteed by most collective bargaining agreements. Most nonunion workers are employed “at will” with few protections against termination;203 federal law and most state laws lack guarantees of paid family leave, vacation, or sick time; and statutory minimums do not provide the wages or benefits necessary to keep workers out of poverty.204 Despite the existence of a wide range of employment law statutes, in practice, many workers enjoy few rights at work. Workers’ real incomes have barely increased during recent decades, even though total working hours are longer and educational attainment is greater.205

C. Efforts at Renewal

1. Resuscitation

For the past twenty years, against the background of the inadequate labor and employment law regimes, the labor movement has been trying to rejuvenate itself. 1995 was a turning point. Following years of globalization and outsourcing, unions at the time represented just over ten percent of private-sector workers, down from one-third in the 1950s.206 Promising to usher in a new era of organizing, John Sweeney ran an insurgent campaign for the presidency of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and won.207 The AFL-CIO turned to the NLRB election process with renewed vigor—but met with little success. First, there was the problem of capacity. Fewer than five percent of affiliate unions maintained a department capable of organizing new workers.208 But even among local and national unions committed to organizing, and even in sectors where workers overwhelmingly reported their desire for unions, the legal roadblocks discussed above rendered the traditional NLRA electoral mechanisms inadequate.

Unions thus pushed for amendments to the NLRA that would make organizing and bargaining easier.209 At the same time, they attempted to work around the existing law. They sought to develop alternative mechanisms to obtain traditional recognition and collective bargaining arrangements.210 One approach was to engage in private ordering by seeking private agreements with employers in order to alter the ground rules for union organizing and first contract bargaining. In such agreements, employers typically pledge to remain neutral with respect to whether their employees organize; they also may allow unions access to employer property, recognize the union when a majority of workers sign cards requesting representation, or agree to some form of expedited election or first contract arbitration.211 As Professor Benjamin Sachs has shown, some such agreements were the product of state and local interventions. Through a system of tripartite bargaining, unions have reached agreements with employers and local governments that result in card check recognition, limits on employer involvement in union campaigns, union access to employer property, and more effective enforcement of the duty to bargain.212

Another approach was to create pathways to organization for workers exempted from federal law. For example, unions used innovative lawyering and legislative strategies to transform state-funded home-care workers into state employees, or quasi-state employees, in numerous jurisdictions. After doing so, they won the right to hold representational election for these workers.213 The organization of home care and childcare workers thus added to labor’s ranks in the public sector, using a model that tracked the NLRA.

Finally, while unions sought to bring new workers under the NLRA’s basic framework, other worker advocates attempted different forms of collective action. One important innovation to that end was the emergence of organizations known as worker centers.214 Worker centers, which became increasingly prevalent in the 1990s and 2000s, are community-based, non-profit organizations that provide legal and social services to low-wage, often immigrant workers.215 They also engage in advocacy work, leadership development, and collective action in order to improve working conditions in the lowest wage industries.216

The worker center campaigns filled an important void in vulnerable communities, while the innovative union campaigns brought tens of thousands of new workers—largely women, immigrants, and people of color—into the labor movement. Yet, for the most part, neither produced any fundamental change in labor law or the structure of labor relations. With a few notable exceptions, most worker centers expressly rejected the goal of collective bargaining and remained local in structure, without substantial power to affect the national economy or politics.217 Meanwhile, the union campaigns did not aim to transform the basic system of labor law established by the NLRA. As Professor Cynthia Estlund remarked in 2006, unions engaged in trying to revitalize labor law were “largely committed to a more or less recognizable regime of union organization and collective bargaining.”218 Their innovations did not so much “transform the nature of labor relations—of unionization, majority rule, and collective bargaining—as they [sought] to smooth the path that leads there.”219

Most scholars urging labor law reform have operated in this vein as well. For example, they have argued in favor of amending the NLRA’s election machinery to remove the obstacles to unionization;220 for more frequent elections to facilitate workers’ entry and exit from unions;221 and for a private cause of action to enforce NLRA rights.222 They have also explained why judicial and agency opinions that narrowly interpret the NLRA ought to be reversed.223 For example, scholars have critiqued precedent that limits union access to employer property;224 that permits employees in right-to-work states not to pay for legally mandated representation;225 and that forecloses the possibility of minority or members-only unions226 and “company unions.”227 Supporting these efforts is the work of scholars who seek to rewrite First Amendment doctrine to better protect ongoing collective action among workers, again within the current statutory framework.228 As with the unions’ earlier organizing efforts, these scholarly arguments largely operate within labor law’s basic framework of non-statist, decentralized, firm-based bargaining.

2. Abandonment

While unions and many academic supporters sought to invent new ways to bring workers under the NLRA’s basic framework, others abandoned the project of labor law, asserting the need for a post-union approach. Indeed, some abandoned the idea of traditional labor law. Most notably, since the 1970s, a movement has emerged in support of corporate self-governance. That is, multinational corporations, whether on their own or when pushed by human rights groups, unions, and NGOs, have adopted corporate codes of conduct and agreed to let outside groups monitor their compliance with these codes.229 For businesses, these voluntary codes of conduct are a tool to enhance brand reputation and to achieve regulatory forbearance.230 For NGOs and worker advocates, they are a way to improve labor standards when domestic and international law fail.

Scholars, including some labor and employment law experts, have celebrated the turn toward self-regulation as a way to create more flexible and modern governance systems.231 For example, Cynthia Estlund has argued in support of self-regulation, while urging changes to its operation in order to give workers a genuine collective voice.232 On this account, self-regulation can help fill the void left by the decline of unions and the weakness of employment law. Indeed, where strong worker organizations are present, as in the case of the Coalition of Immokolee Workers in Florida, corporate codes of conduct have been remarkably successful.233

But for the most part, corporate social responsibility efforts are characterized by profound weaknesses.234 The programs suffer from low levels of transparency; effective sanctions are rare; and, without strong regulatory systems or unions, workers are typically unwilling to report problems to private monitors, even when the monitors operate in good faith.235 Even the most aggressive self-monitoring programs have had mixed success at best, with studies documenting pervasive code violations.236

* * *

In short, by the metrics of protecting workers’ associational rights and facilitating greater economic and political equality, the innovations of the past decades have all failed. Since the early 2000s, when scholars began exploring a revitalized labor law and reporting the rise of both worker centers and self-regulation, economic inequality has increased;237 union density has declined;238 most workers still lack a meaningful voice in their place of employment; and working people’s influence in politics remains feeble.239

No doubt, there are numerous explanations for the failure of labor law’s revitalization and the continued weakness of employment law. The extraordinary opposition to reform mounted by conservative groups and business interests cannot be overstated, nor can the efforts to weaken the existing regimes.240 But even if the reforms identified thus far had been achieved, and the innovative strategies more fully realized, they would have done little to ameliorate the failure of labor law to provide workers significant power in the contemporary political economy.

ii. the contours of a new legal framework

The incipient labor law being forged by today’s social movements offers a more promising path. Like many earlier efforts, the Fight for $15 and other contemporary low-wage worker movements operate outside of traditional labor law and focus on the lowest paid workers in the economy. But the new movements, more so than their predecessors, are refusing labor law’s orientation around the employer-employee relationship. By demanding $15 an hour and the right to a union for all workers, they are seeking to bargain at the sectoral and regional level, rather than at the firm level. In this way, they are extending and augmenting the work of earlier campaigns, like SEIU’s Justice for Janitors campaign, which sought to organize entire industries in particular localities, while learning from less successful campaigns that focused on single firms, like the multi-year effort to organize Walmart.

In addition, and in a more notable break from the past, the Fight for $15 and other contemporary low-wage worker movements are rejecting the notion that unions’ primary role is to negotiate traditional private collective bargaining agreements, with the state playing a neutral mediating and enforcing role. Instead, the movements are seeking to bargain in the public arena: they are engaging in social bargaining with the state on behalf of all workers. In so doing, they are collapsing the distinction between employment law and labor law and rendering the basic terms of employment for all workers subject to social bargaining. Finally, although they are embracing sectoral, social bargaining, the new movements are not abandoning worksite organization. To the contrary, they are using social bargaining to strengthen and supplement traditional collective bargaining, while beginning to experiment with new forms of workplace organization.

This Part undertakes a case study of the Fight for $15, contextualized among similar ongoing movements, to show how the outline of a new labor law is beginning to emerge.

A. Evolution of the Movement: From McDonald’s, to Fast Food, to Low-Wage

Now known as the “Fight for $15,” the campaign among low-wage workers began to make headlines in 2012 under banners ranging from “Fast Food Forward” in New York to “Raise up MKE” in Milwaukee to “Fight for $15” in Chicago.241 Though some media accounts described the early efforts as spontaneous, the campaign, from the beginning, was funded and organized by SEIU, one of the nation’s largest unions.242 In some localities, SEIU provided funding and training to grassroots community organizations already working with fast-food workers; in others, the union itself initiated contacts with workers and built new local organizations.243 In both cases, organizers funded by SEIU met with workers, built committees of workers, and eventually, after months of work, helped workers launch small-scale demonstrations and strikes, demanding $15 an hour and the right to form unions free from intimidation.244

The first actions were in New York. On November 29, 2012, several hundred workers at McDonald’s, Burger King, Domino’s, KFC, Taco Bell, Wendy’s, and Papa John’s walked off the job.245 The strikes did not fit the typical NLRA model. Although they were organized by SEIU, they occurred among employees who had not yet won union recognition or certification at their particular worksites.246 In addition, the strikes, for the most part, did not reflect majority participation at any given facility; they were not a response to a breakdown in collective bargaining; they were short in duration and without an expectation of management concessions.247 Moreover, although the campaign focused much of its public criticism and protest on one company—McDonald’s248—the worker organizing, from the beginning, was not limited to a single corporate target.249

The actions spread over the course of the next year, primarily among fast-food workers. In December, several hundred fast-food workers in Chicago went on strike; in April and May of 2013, fast-food employees went on strike in seven cities; and in August, workers staged strikes in sixty cities.250 By 2014, however, the movement had expanded beyond fast food.251 Home health aides, federal contract workers, childcare workers, and airport workers, all of whom had already been involved in SEIU organizing campaigns, began to frame their struggles as part of the Fight for $15. They joined the day-long strikes and protests held in 190 cities on December 4, 2014. More surprisingly, workers who were not involved in existing official union campaigns joined as well. Employees at gas stations, discount outfits, and convenience stores—including BP, Shell, Speedway, Family Dollar, Dollar Tree, and Dollar General—participated in strikes and protests, after having attended meetings and followed social media campaigns over the prior months.252

By the spring and summer of 2015, the campaign had definitively altered its message. Without backing away from the demand for “$15 and a union” for fast-food workers, and while continuing to put pressure on McDonald’s in particular, the campaign now identified itself as building a “broad national movement of all low-wage workers.”253 A March Atlanta organizing meeting featured not only fast-food and home care workers, but also activists from Black Lives Matter and civil rights movement veterans.254 The inclusion of activists from other movements reflected not only the campaign’s adept use of social media and its effective networking, but also its commitment to a social and inclusive form of unionism. By expressly embracing Black Lives Matter, the campaign again asserted that its goals were not limited to achieving gains at any particular workplace, but rather aimed to advance the interests of workers generally.255

The next mass action was even larger than the previous one. On April 15, 2015, “tens of thousands of low-wage workers, students and activists in more than 200 American cities” participated in protests and strikes.256 Since then, the campaign has held a series of mass protests, often focused specifically on national political events, such as presidential debates,257 but also on local labor disputes involving a range of different workers, including airport workers and adjunct faculty members at universities.258 Meanwhile, other unions and worker organizations, including Our Walmart, the American Federation of State, County, and Municipal Employees (AFSCME), and the Communication Workers of America (CWA), which were already engaging in similar struggles, have begun to associate themselves under the Fight for $15 banner.259

Throughout, social media has played an important role, allowing SEIU and the other unions to involve more workers and reach more members of the public than they otherwise would have.260 The union has used web sign ups, text messages, and Twitter to involve workers who have never had personal contact with a union organizer. In addition, the SEIU-managed Fight for $15 website provides workers with an instruction manual for how to engage in one-day strikes and allows them to download a “strike letter” that they can give to their managers explaining that they are asserting rights under section 7.261

B. The Standard Account: Minimum Wages and Employment Standards

Though the Fight for $15 has, from the beginning, framed its demands as “$15 and a union,” the wage plea has captured far more attention than the call for union rights. News coverage often depicts the movement as exclusively about wages. As Professor Michael Oswalt observes, this portrayal is unsurprising. The wage demand “is provocative, easy to explain, and plays to a policy change that the public and progressive politicians generally support.”262

And, indeed, the campaign, working alongside community groups, has had great success in shifting the terms of debate around the minimum wage and in bringing about policy change.263 Cities across the country—including Seattle, Oakland, San Francisco, Los Angeles, San Diego, Santa Fe, Albuquerque, Kansas City (Missouri), Chicago, Louisville (Kentucky), and Portland (Maine)—have passed wage increases in response to pressure from groups allied with the Fight for $15.264

The first victories predictably occurred in liberal cities and states. For example, in 2013, after the initial wave of protests, the New York legislature agreed to increase the state minimum wage slowly from $7.25 to $9 by 2016.265 Mayor Bill de Blasio argued that the amount was insufficient in New York City, urging an increase to $15 by 2019.266 In Seattle, the initial victory was less ambiguous.267 There, fast-food strikes were timed to coincide with the 2013 mayoral runoff elections. Ed Murray, then a state senator, endorsed a $15 minimum wage. On May 1, 2014, following Murray’s election as mayor, a task force he appointed proposed to raise the minimum wage to $15 an hour over four years for businesses with more than five hundred employees, and over seven years for smaller businesses.268

In the November 2014 elections, minimum wage victories spread beyond traditionally “blue” localities. Voters in Republican strongholds like Arkansas, Nebraska, and South Dakota all passed, by significant margins, referenda to raise their minimum wages, albeit to levels lower than $15.269 These measures passed notwithstanding significant victories by Republican candidates in the same jurisdictions.270 Meanwhile, voters in Oakland approved a thirty-six percent increase to $12.25 per hour, and voters in San Francisco approved a gradual increase to $15.271

By the spring of 2015, private employers were beginning to respond as well. McDonald’s and Walmart announced that they would raise minimum pay for employees to $8.25 and $9 an hour, respectively, more than a dollar above the wage they had been paying in many locations. Facebook went so far as to raise its minimum wage to $15 an hour for workers employed by contractors.272

Then, on July 22, 2015, after Fight for $15 workers spent months organizing, demonstrating, speaking with the press, and testifying, the Wage Board of the State of New York announced that it was recommending a pay raise for most of the state’s fast-food workers to $15 an hour—an increase of more than six dollars per hour,to be implemented over the course of several years.273 The same day, the University of California system announced it would raise the minimum wage for all of its employees and contract workers to $15 an hour.274 In subsequent months, lawmakers in Oregon, New York, and California approved legislation that substantially raises those states’ minimum wages—to $15 in New York and California.275 Several cities, including Washington, D.C., have since followed suit.276

Wage increases of this magnitude and scope would have been unthinkable just a few years ago. Democrats and liberal economists who bemoaned the inadequacy of existing minimum wages tended to advocate for nine, or maybe ten, dollars an hour—certainly nothing close to $15.277 Moreover, support for minimum wage hikes in Republican-leaning states seemed unthinkable.278 While the Fight for $15 is not the only explanation for the sea change—continued economic growth and low unemployment are contributing factors—observers agree that the Fight for $15 has been instrumental.279

The movement has also helped shift debate at the federal level.280 Whether to raise the minimum wage, and how high, became an issue in the 2016 presidential campaign, and a $15 minimum wage has won the endorsement of the New York Times Editorial Board281 and the Democratic Party.282 And although federal minimum wage legislation has stalled,283 the Obama Administration has moved forward with executive action. One subgroup of the Fight for $15, identifying itself as “Good Jobs Nation,” successfully pressed for an executive order that raises wages for individuals working on new federal service contracts. The executive order provides only $10.10 an hour; the federal contract workers continue to seek $15 and have engaged in numerous one-day strikes to support their demands.284 Meanwhile, a recently promulgated Department of Labor regulation, long demanded by unions and allied policy organizations,285 will raise the wages of millions of additional workers by raising the threshold below which salaried workers are entitled to overtime.286

In addition, the Fight for $15, with help from other worker organizations and community groups, has successfully pushed for new legislation guaranteeing other minimum labor standards. For example, the movement has provided a boost to longstanding efforts of family and women’s organizations to pass laws mandating paid sick time. In numerous protests and press events, workers participating in Fight for $15 actions have highlighted the risks posed to workers and customers by the absence of paid sick leave among low-wage workers.287 Under this new pressure, in the period since 2013, cities including Portland, Maine; New York City; Eugene, Oregon; San Diego; Oakland, California; Jersey City; Montclair, New Jersey; Trenton, New Jersey; and Philadelphia, along with the States of Massachusetts and California, have responded with new laws mandating paid sick time.288 The Department of Labor also recently proposed a rule that would mandate paid sick time for federal contractors.289

The movement—the Fight for $15 along with a host of other worker organizations and community groups—has also pressed for legislation to change scheduling practices in the retail and fast-food industries.290 In particular, workers object to being kept on part-time status even when additional hours are available and to having their shifts continually change.291 Vermont and San Francisco have responded with laws that give workers the right to request flexible or predictable schedules, and officials in New York City are considering similar legislation.292 Voters in SeaTac, Washington approved a measure that “bars employers from hiring additional part-time workers if their existing part-timers want more hours.”293 Similar bills have been introduced in California and New York,294 as well as in Congress.295 Several private employers, including Gap, Abercrombie & Fitch, Starbucks, and Victoria’s Secret have also announced that they will change their on-call scheduling practices.296

C. A New Unionism

While commentators have celebrated the Fight for $15’s victories, they have largely failed to recognize its broader implications for labor law. In fact, much of the media and scholarly coverage of the Fight for $15 emphasizes that the effort is not unionism. One journalist wrote, “the effort seems aimed at organizing low-wage workers not into a union but into a force that could extract changes from local government.”297 Another commented, “[t]he campaign is more about public relations than actual economic coercion.”298 Academic experts have similarly observed that “the unions have no strategy for building a real organization sustained by actual dues-paying members.”299

It is true that the Fight for $15’s leaders admit that they are aware of no clear path to unionization in its traditional sense.300 But the workers and staff interviewed by these same journalists emphasize that they are building a labor organization, not merely generating political pressure to enact new employment law. Even journalists who frame the campaign as centered on public relations have acknowledged that “those who participate do in fact seem interested in joining a union.”301

Ultimately, although the path to unionization is unclear, from close examination of the movements’ efforts, a coherent vision of unionism—and of a legal framework to support it—emerges. That emerging framework rejects the old regime’s commitment to the employer-employee dyad and to a system of private ordering. Instead, it locates decisions about basic standards of employment at the sectoral level and positions unions as social actors empowered to advance the interests of workers generally.

1. From Workplace to Sector

From the outset, the Fight for $15 rejected the NLRA’s premise that organizing and bargaining occur at individual worksites between the formal employer and its employees. A consistent argument of the campaign has been that corporate entities with effective power over workers—not only immediate employers—have a responsibility to negotiate.

Consider the campaign’s efforts with respect to McDonald’s. Recognizing the futility of holding elections at McDonald’s franchise stores on a one-off basis, the Fight for $15 has sought to define McDonald’s as the joint employer of all McDonald’s employees. SEIU set forth its legal arguments in response to the NLRB’s request for views in Browning-Ferris Industries of California, Inc.302 That case, in which the union position ultimately proved victorious, involved a Browning-Ferris Industries (BFI) recycling plant in California. The plant’s drivers and loaders were employed directly by BFI and were represented by the Teamsters. Several hundred sorters, screen cleaners, and housekeepers who also worked at the facility wished to join the union. The problem: they were employed not by BFI but by Leadpoint, a subcontractor.303

The relationship between BFI and Leadpoint was a conventional labor supply contract, similar to those used throughout the janitorial, security, maintenance, warehouse, and other sectors.304 Under the BFI-Leadpoint arrangement, BFI and Leadpoint jointly decided many of the terms and conditions of the Leadpoint workers, but only Leadpoint exercised direct and immediate control.305 Thus, applying the definition of joint employer that had governed since the mid-1980s, the Regional Director issued a decision finding that Leadpoint was the sole employer of the employees seeking to unionize.306

In its amicus brief, SEIU, joining the Teamsters and other unions, urged the Board not to require an entity to exercise direct and immediate control over a worker in order to be considered a joint employer under Section 2(2) of the Act.307 Instead, SEIU argued, the Board ought to return to the standard set forth in the 1980s by the Third Circuit in NLRB v. Browning-Ferris Industries of Pennsylvania, Inc.308 That standard asks whether the alleged joint employer “has retained for itself sufficient control o[ver] the terms and conditions of employment of the [affected] employees” to enable that entity to “share or co-determine . . . matters governing the essential terms and conditions of [those employees’] employment.”309

To support the union position, SEIU and fellow amiciemphasized that a sizeable proportion of the labor force now works in contingent employment relationships involving subcontractors, staffing agencies, and franchisees. In particular, the SEIU brief detailed how fast-food brands have imposed comprehensive regimes of operational uniformity and monitoring systems on their franchisees, thereby significantly affecting the working conditions of all franchise employees. It also described how brands “control the economics of each franchise owner’s business,” effectively “stripping the franchisees of any meaningful opportunity to determine the terms and conditions of their workers’ employment, except at the margins.”310

SEIU and other unions admitted that their desired standard would require significant changes in the way corporations conceive of their employment relationships in the modern, fissured economy—and would significantly alter legal entitlements and liabilities, returning the legal standard to the one in place prior to the 1980s. Amicus briefs filed in opposition by the Chamber of Commerce and others made this point as well, as did Republican presidential candidates and members of Congress.311 According to the industry and its supporters, the joint-employment legal theory advanced by the Teamsters, SEIU, and other unions would upend the franchise industry, reducing its profitability and flexibility.312 They argued that the union-urged standard would both destabilize existing contracting relationships and widen the scope of labor disputes, forcing firms to participate in bargaining even where they lack authority to control all terms and conditions of employment.313

While the legal arguments were still pending before the NLRB in Washington, organizers and workers pressed their claims on the ground. They filed numerous unfair labor practice charges against both McDonald’s and franchise owners, claiming that workers faced retaliation for participating in Fight for $15 activity.314 In these cases, SEIU took the position that McDonald’s was a joint employer even under the more restrictive standard. The effort has been successful, at least in the initial phases. On December 19, 2014, the NLRB announced that it was issuing complaints against McDonald’s franchisees and their franchisor, McDonald’s USA, LLC, as joint employers.315 Then, on August 27, 2015, in a split decision, a majority of the Board ruled in favor of the unions in Browning-Ferris.316 Joint employment, the Board concluded, exists whenever two or more employers “share or codetermine those matters governing the essential terms and conditions of employment.”317 As Part IV explains, that decision, along with subsequent developments in NLRB proceedings involving McDonald’s and other employers, opens the door to a change in the way organizing and bargaining occurs under the NLRA.318

SEIU’s Fight for $15 campaign is by no means the first effort to organize fissured employers by pressuring the entities that exercise actual control over the conditions of employment, even if there is no immediate, formal employer relationship.319 But the Fight for $15 suggests the possibility of a more fundamental shift away from the employer-employee dyad. The movement’s initial conceit may have been to build a union of a particular brand’s fast-food workers by focusing on an entire company, like McDonald’s, instead of particular franchisees. The Browning-Ferris decision advances this more modest goal. Yet, as discussed above, over time, the campaign expanded to embrace all fast-food workers and then even broader swaths of low-wage and gig economy workers.320 As such, the campaign is making clear its aspiration to negotiate employment standards on industrial, sectoral, and regional levels, rather than at the level of the individual employer or even the individual supply chain.321 As the next section elaborates, to advance this goal, the campaign is using strategies that push beyond even Browning-Ferris.

Ironically, the NLRB’s recent ruling in the case involving college football players, though a defeat for the petitioning workers, resonates with the Fight for $15’s arguments about sectoral bargaining.322 There, the Board dismissed a petition by Northwestern University’s college football players who were seeking to unionize.323 Rather than considering the merits of the players’ claims that they should qualify as workers under the Act, the Board declined jurisdiction.324 The reason: most National Collegiate Athletic Association (NCAA) teams were at public universities not subject to the NLRA and having a “single institution” organized into a union within an integrated economy of unorganized institutions would make little sense.325 Yet it is precisely a workplace-by-workplace, employer-by-employer system of organization and bargaining—with individual units organized amidst seas of unorganized workers—that has governed since the New Deal.

2. From Private to Social

While working to move bargaining to a more industrial scale, the Fight for $15 has also embraced a form of state-backed social bargaining. These two moves are related. In order to move bargaining beyond the single employer to the industrial, sectoral, and regional level, the Fight for $15 has sought to engage the state directly in bargaining over workers’ conditions. In so doing, the campaign is transforming the post-New Deal conception of labor disputes as private affairs, largely beyond the reach of the state; it is changing the role of the union from the representative of particular members to an advocate for workers generally; and it is weakening the divide between employment law and collective bargaining.

The move to social bargaining by the Fight for $15 has been less explicit than the move away from the formal employer-employee relationship. Traditional corporate-focused tactics, including protests, strikes, and media campaigning, remain a centerpiece of the campaign. But far more than predecessor efforts, the campaign has explicitly addressed its demands to government actors. It has sought $15 an hour, rules requiring reliable schedules, and mandates for sick leave simultaneously from government and companies. Indeed, the union’s demands on state, local, and federal government actors to directly impose minimum labor standards have garnered as much media attention and more concrete successes than the employer-focused tactics.326

To some extent, these efforts look like familiar legislative campaigns for employment regulation. The labor movement has long been involved in pushing legislation relevant to workers’ rights. For example, unions were instrumental in helping pass the Civil Rights Acts, OSHA, the FMLA, and, most recently, health care reform.327 But although these bills were a political priority for the labor movement, union-organizing campaigns operated separately from the legislative ones and focused on different goals.328

The current local legislative efforts, in contrast, are deeply integrated into ongoing workplace campaigns and the demands are consonant.329 Indeed, the one-day strikes—occurring in a range of workplaces and industries, and with only a minority of employees at a given worksite participating—are as much as a form of social protest in support of public demands as an attempt to exercise coercive economic power over any particular employer. These efforts exploit the capacious nature of section 7 of the NLRA, which has been interpreted to protect concerted action by workers even when they are not union members and even when the target of such action is not the employer, as long as there is a clear nexus to employment issues.330 Throughout, the campaign has positioned workers as active participants in determining new state and local standards. In interviews with the press, workers-leaders have articulated their goals as improving conditions through their collective power. These activists have also emphasized their own role in determining the new policies.331

From these fledgling and evolving efforts, one can derive a glimmer of tripartism in labor relations largely abandoned since the New Deal: triangle bargaining among workers, employers, and the state over wages and benefits.332 The recent experience with the New York Wage Board provides the most concrete example. On May 6, 2015, after growing protests and strikes in New York organized by the Fight for $15, Governor Andrew Cuomo announced that he would take executive action to raise wages.333 As Cuomo explained, New York State law permitted the labor commissioner to investigate whether wages paid in a specific industry or job classification are sufficient to provide for the life and health of those workers, and, if not, to impanel a wage board to recommend what adequate wages should be.334 Invoking Franklin Roosevelt’s aggressive use of executive power against moneyed interests, Cuomo directed the Commissioner to exercise such authority.335 The next day, New York’s Acting Commissioner for Labor issued a memorandum providing data to show that “a substantial number of fast-food workers in the hospitality industry are receiving wages insufficient to provide adequate maintenance and to protect their health” and began the wage board process.336

Critically, New York law did not simply permit the executive to establish a wage board; it required that the board be comprised of equal numbers of representatives from labor, management, and the public.337 For its board, New York chose one representative from each group: Byron Brown, Mayor of Buffalo, representing the public; Kevin Ryan, Chairman and Founder of the online retailer Gilt, representing businesses; and Mike Fishman, Secretary-Treasurer of SEIU, representing labor.338 The Board Members held hearings across the state over the next forty-five days. Workers, organized by the Fight for $15, participated in great numbers at these hearings. They reported “the impact of low pay on their health and emotional well-being and reported myriad hardships,” and they told personal stories about their inability to afford food, clothing, and other basic needs on their current wages, and about the health and safety risks to which they were exposed at work.339 Many academic observers and some employers agreed that wages were inadequate.340 In response, restaurant operators and business activists warned of negative economic consequences; and economists tried to predict the effects of an increase.341 On July 21, the Board announced its decision: $15 for fast-food restaurants that are part of chains with at least thirty outlets, to be phased in over the course of six years, with a faster phase-in for New York City.342

Though the Fight for $15 did not initially describe its efforts with local governments as bargaining, it came to do so over time. In a rare media interview published on August 30, 2015, the Fight for $15 campaign director Scott Courtney reflected: “I would call what happened [in New York] collective bargaining, and I would call that a union,” even though there was no “bargaining” with employers.343

To be sure, as an example of tripartism, the New York wage board is partial. There was no restaurant representation on the Board; no comprehensive bargaining occurred; and the Board’s mandate was limited to wages.344 However, other localities have convened wage boards or task forces that have broader formal participation and more expansive mandates. For example, Sacramento’s new wage task force includes the heads of major business groups, including the local Chamber of Commerce and the California Restaurant Employers, as well as the heads of major unions and community organizations.345 Seattle and Tacoma have also used business-labor boards or task forces to set their new minimum wages and employment standards.346 The Mayor of Chicago has appointed a task force to consider mandating paid sick time and other benefits.347

The extent to which these committees actually engage in tripartite negotiations with the ability to make binding recommendations varies. Many provide only advice or recommendations that must still be enacted through ordinary legislative processes, and some have been unable to reach consensus, offering multiple proposals from different constituents. Still, occurring in the context of the broader Fight for $15 campaign, the use of these tripartite structures represents an important shift. So too the Department of Labor’s new overtime rule can be viewed as the product of social bargaining. The regulation was stalled for years within the Executive Branch until the public debate around wages began to shift. The unions and their allies drove the Administration to make the rule change a priority, and they and business counterparts commented extensively on the proposed rule, helping influence its final shape.348

The move toward state-backed social bargaining sets the Fight for $15 apart from several other innovative and important worker campaigns, like SEIU’s own Justice for Janitors campaign or the work of the Coalition of Immokalee Workers.349 Those efforts are similarly sectoral, but they are rooted in private ordering. For example, the Coalition of Immokalee Workers, which is an organization of tomato workers in southwest Florida, has brought to bear worker and consumer pressure on national and international retail brands. The pressure campaigns—not subject to the NLRA’s prohibition on secondary boycotts because of agriculture’s exemption from the statute—have resulted in private agreements that implement wage increases and improve worker conditions. These agreements are monitored and enforced through private programs.350

In contrast, the Fight for $15 is making demands on state actors, as well as employers. It has systematically engaged regulatory and legislative structures, through testimony, strikes, and protests. In so doing, the campaign has positioned government as a co-negotiator in determining workers’ material conditions; it has pushed government actors away from the role they have occupied since Taft-Hartley, while moving labor unions more squarely into the public policy space.

3. Conclusion: Blurring the Employment/Labor Distinction; the Broader Social Movement; and the Uncertain Future of Worksite Representation

By positioning unions as political actors with authority to negotiate the basic terms of employment for workers generally, the Fight for $15 is embracing a more social form of labor law. It is also eroding the distinction between labor law and employment law. Under the emerging model, employment law is no longer just a collection of individual rights to be bestowed by the state. Instead, it is a collective project to be jointly determined and enforced by workers, in conjunction with employers and the public.

Though the Fight for $15 is the most prominent and largest movement embracing this approach, it is not alone. As is evident from the discussion above, its work has been supplemented by a host of other organizations, ranging from think tanks to community based groups—and the movement itself is made up of a range of different unions, organizing in different industries, from OUR Walmart to more traditional unions like CWA and AFSCME.351 In addition, other organizations, which initially started as worker centers not committed to collective bargaining, have independently begun demanding a more sectoral and public form of labor law. Groups like National Domestic Workers Alliance (NDWA), for example, are organizing among workers long excluded from labor law.352 Some of the NDWA affiliates have combined efforts to pass new wage and hour legislation with demands for sector-wide bargaining.353 Like the Fight for $15, NDWA seeks industry-wide standards, public bargaining, and a political role for the worker-organization. The Taxi Worker Alliance is another example of a worker organization attempting to build a national presence and engage in sectoral, social bargaining.354

While the Fight for $15 and these other campaigns have directed their demands to government, they also maintain a commitment to worker voice, unionism, and collective action—their goals are not purely regulatory. Public statements by campaign leaders evidence this continued commitment to worksite organization and representation. The union leaders admit they do not know precisely what such an organization will look like—but they are nonetheless committed to it.355

As discussed further in Section IV.B, existing efforts suggest two, not mutually exclusive, possibilities. First, social bargaining could serve as a floor above which traditional firm-based collective bargaining will occur. Indeed, social bargaining appears to be strengthening unions’ ability to engage in traditional collective bargaining.356 Second, the efforts of the Fight for $15 and other worker organizations suggest the possibility of new forms of union funding and worksite organization that could accompany social bargaining and traditional unions. Specifically, the Fight for $15’s minority strikes and self-organized worker actions point toward organizations that would not depend on majority status at a given facility, on a system of exclusive representation, or on traditional collective bargaining agreements.357 Meanwhile, other movements are exploring different models that could also supplement social bargaining.358

iii. the case for the new labor law

The rough outline of an aspirational new labor regime emerges from the Fight for $15 and similar movements. The regime makes fundamental changes to the traditional NLRA approach. While retaining a role for traditional collective bargaining and allowing for new forms of voluntary worksite organization, the new regime positions unions as political actors with authority to negotiate basic terms of employment on a sectoral and regional basis; these negotiations occur with state actors as well as with employers. The new, still embryonic, labor law thus embraces a more public and social approach, while eroding the distinction between labor law and employment law. At the same time, it is not traditional employment law: it rests on a commitment to collective power rather than individual rights.

Given the extent to which this nascent regime departs from existing models, criticisms of the move come easily. This Part considers those criticisms—focusing on the extent to which the new labor law is contested even within the labor movement and by those who share its normative commitments. It then provides an affirmative case for the ability of the aspirational framework to advance the goals of economic and political equality, while recognizing some areas of concern.359

A. Weaknesses of the Emerging Regime

Significant divisions have emerged within the labor movement about the strategy of bargaining outside the employer-employee relationship in partnership with the state. The fault lines can be seen most clearly in the debate about whether newly enacted labor and employment standards should exempt unionized shops. At least six of the twenty U.S. cities and counties that have set minimum wages above state and federal levels include a provision allowing unions to waive the wage mandate as part of a collective bargaining agreement.360 These exemptions are no accident. SEIU and the Fight for $15 have supported universal minimum labor standards and have opposed exemptions. But some other segments of the labor movement have vigorously sought exemptions that allow union shops to negotiate below minimums, as a tool to support traditional shop-by-shop organizing.

Debate erupted last year in Los Angeles.361 Days before the Los Angeles City Council approved the new minimum wage of $15 an hour, several prominent labor leaders, including those from the County Federation and UNITE HERE, dvocated for inclusion of a waiver for unionized workplaces. In their view, an exemption would provide labor and management with the flexibility to negotiate better benefits for all union members or to allocate greater raises to more senior workers.362 The head of the Los Angeles County Federation of Labor, Rusty Hicks, emphasized the importance of “freedom” in negotiations.363

Other members of the labor movement disagreed. California SEIU leaders denounced the exemption, as did some rank-and-file activists and allies of the labor movement in local government, for undermining worker rights.364 When asked about the Los Angeles debate, a prominent SEIU official from Seattle, Washington, said: “At this point in our history, we have to be very careful to send the message that we stand up for all workers . . . . A wage is a wage is a wage . . . . It’s very hard to justify why you’d want any worker to make less than the minimum wage.”365 Though the exemption did not make the final statute in Los Angeles, the debate is not over; the City Council is expected to revisit the possibility.366 A similar debate occurred in Kansas City.367 Meanwhile, employers charge that the unions supporting exemptions do so in order to coerce employers to agree to unionization.368 They argue that the exemptions disturb the balance of power that Congress imposed with the NLRA and therefore are preempted by federal law under the Machinists doctrine.369

Division within the labor movement extends beyond the question of exemptions from local legislation. Some labor leaders and union allies have raised concerns about the shift away from worksite-based bargaining toward industrial and social bargaining. For example, SEIU faces criticism from some of its own members who wonder whether a campaign to raise minimum wages is a good way to spend their dues money.370 Meanwhile, some labor experts have urged SEIU to turn back to NLRB elections or other more traditional union campaigns that are more likely to produce dues-paying members.371 Taking the critique further, a few leaders within the labor movement have openly objected to the new social welfare legislation, arguing that wages, benefits, and sick time should be set through collective bargaining in the “private system,” not by law.372

The division within the labor movement could be seen as a debate about whether to prioritize, over all else, the organization of new dues-paying members at a time when organizing is essential to unions’ viability. But more fundamentally, the divide is over whether to hold fast to the system of privatized, firm-based collective bargaining with exclusive representation that has defined American labor relations since the New Deal—or to embrace a fundamentally different model of unionism in which social bargaining plays a key role.373

The impetus to reject social bargaining and hold fast to the current collective bargaining model is understandable. First, the commitment to private ordering over state engagement is a rational reaction to the particular historical experience of the American labor movement. Nineteenth and early twentieth century unions in the United States frequently confronted court injunctions and state repression.374 In response, the labor movement—or significant portions of it—sought to achieve a laissez-faire state policy toward collective action.375 The hope was that unions, free from state intervention, could facilitate a system of genuine reciprocal solidarity and workplace democracy.376 Though that goal was never fully achieved, voluntarism—the aspiration of private ordering—remains central to many unions’ cultures.377 The possibility of true self-help still holds allure, which is heightened by continued hostility toward collective action on the part of many courts and state actors.378 Moreover, the attraction of private self-help is deeply rooted in U.S. culture and law more generally.379 This is not only a libertarian impulse. A danger arises when the state colonizes and manages social movements and civil society. In achieving state-supported social bargaining, one may worry, the labor movement may lose its independence and autonomy.

Second, a system of privatized, firm-level collective bargaining is familiar, and given substantial political obstacles, revitalization is easier to envision than any fundamental reform. As Professor Lance Compa recently wrote, “a labor and employment system cannot be wrenched from its historical moorings.”380 It is important “not to be so frustrated with problems and so enamored of novelty that we undermine hard-won foundations in our labor law system.”381 To some extent, this is an argument about political feasibility. Defenders of the existing system emphasize that decisive change favoring unions is not likely, given the political environment.382 Rather, “we are stuck with the infrastructure of the current labor and employment law system.”383

Relatedly, fundamental reform could undermine the interests of existing labor organizations.384 Indeed, the emerging legal model threatens the existence of unions as they are traditionally constructed. The problem is not only that existing union officials have an interest in resisting reform that could undermine their employment, but also that the lack of an obvious funding mechanism for the emerging forms of bargaining could undermine workers’ power in the economy and politics, notwithstanding the system’s theoretical promise.385

Finally, a move toward social bargaining diminishes the emphasis on worksite organization. The current regime’s emphasis on the workplace has value. It offers the possibility of genuinely democratic struggle and economic power.386 Compa offers a variant of this argument: “Our[] [system] correctly places the inherent conflict between workers and owners in a capitalist economy at the heart of the labor-management relationship.”387 On this account, the New Deal’s embrace of private, firm-based bargaining produced tangible gains at the place of production that workers had been unable to achieve through earlier efforts at social and industrial bargaining.388

All of the above objections are likely to be levied by those who support the existing system of collective bargaining.389 Another category of critique comes from those who have given up on collective bargaining altogether in favor of a regulatory or self-governance approach.390 As previously noted, some who urge this position oppose unions in principle, as inefficient and self-dealing.391 But even some labor officials have adopted a post-union approach, urging a turn away from collective bargaining toward ordinary regulation and employer self-governance.392 For example, one prominent union official involved in the Fight for $15 has advocated a new social contract that would create no new protections for bargaining.393 Other union organizations have switched to engaging in extensive political coalition work in place of worker organizing.394 The grounds for this post-union approach are pragmatic. Given that unions have declined significantly in the modern economy and that political opposition to unionism is so extensive, it makes sense to look elsewhere—to employment law, to self-governance, to technological innovation—to address problems in the workplace.395 On this account, collective bargaining, whether at the firm level or at the sectoral and political level, is a relic.

B. A Qualified Defense

The foregoing critiques have merit. But they pose a challenge for the design and enactment of the new labor law, rather than a reason to resist its development.

Consider, first, the post-union approach, i.e., exclusive reliance on employment regulation or corporate self-governance. This may be the path of least resistance, but for several reasons, regulation and self-governance, without the existence of strong worker organizations, are unlikely to achieve many of the most important aims of labor law.

First, an employment-law or governance approach does nothing to facilitate worker voice or to protect the right to associate—to organize, bargain, and strike. These rights are both recognized in domestic law and enshrined in international law.396

Second, an employment-law or governance approach does little to shift how power is distributed in society. Strong worker organizations, in contrast, help redistribute power, which, over time, helps maintain a measure of political and economic equality.397 Unions help shift the balance of power through several mechanisms. Most obviously, organized labor exercises collective bargaining power that affects wage rates.398 But unions also have the capacity to affect corporate governance decisions, such as executive compensation.399 In addition, they can push policymakers to address issues relating to workers, to ensure enforcement of statutory standards, and to “resist policy changes that further inequality.”400 Comparative studies support the conclusions that strong unions are associated with reduced wage dispersion,401 enhanced welfare state generosity,402 and increased electoral participation among low income groups. They also play a networking and informational function by making working-class voters aware of partisan differences and their implications for policy.403

Finally, effective and democratic worker organizations bring other important benefits over a purely regulatory approach: they have the potential to create workplace democracy404 and thus serve as an important training ground for political democracy.405 Unions can also improve workplace outcomes by facilitating voices of affected participants.406 Indeed, even leading scholars urging a governance approach recognize the necessity of facilitating worker voice in some shape or form.407

Why not, then, try to revive the existing system of firm-based bargaining? Because as earlier parts of this Article demonstrated, traditional NLRA collective bargaining is profoundly mismatched with the contemporary economy in which employers are fissured and work is increasingly global, contingent, shared, and automated.408 Moreover, the existing system of firm-based collective bargaining largely removes unions from the spaces of politics and governance, in an era in which those arenas are increasingly dominated by organized wealth.409

The new labor law regime emerging from the efforts of the Fight for $15 and similar social movements is thus far more promising than either the purely regulatory approach or the traditional NLRA approach. To be sure, its merits depend in large part on the details. To that end, in Part IV, I consider how, concretely, the new labor law might continue to develop in the United States. But at the level of principle, the arguments in favor of a more sectoral and social form of labor law are significant.

Perhaps the most straightforward reason to embrace the new labor law is that it would enable unions to negotiate in ways that respond to the problem of the fissured employer. Under the emerging system, no longer would the bargaining relationship be structured around the outmoded employer-employee dyad. Workers throughout an economic sector would bargain together, whether employed by the lead firm, one of the contracted firms, or any particular plant. This would avoid protracted legal battles about the identity of the employer while strengthening unions’ ability to implement their goal of raising worker wages.

For several reasons, sectoral bargaining, which is common throughout Europe,410 betters serves labor law’s goal of increasing workers’ bargaining power so as to reduce economic and political inequality.411 Researchers have shown that firm-based bargaining has some impact on income inequality, but the impact is primarily felt within firms; bargaining compresses wages within the firm at which it occurs.412 The existing model of firm-based bargaining thus tends to raise wages throughout an industry only if there is enough union presence in the industry or geographic area to pose a threat to nonunionized firms; employers raise wages to stave off unionization or to compete for labor.413 This rarely occurs under our current regime in which sectoral bargaining, though permissible, is not required. In contrast, mandatory sectoral bargaining directly impacts wages throughout the labor market; agreements apply to all employers in the industry or region, helping create more wage compression overall.414 Unions empowered to bargain sectorally also tend to be more effective at shaping public policy and democratic decision making.415 Their more expansive mandate enhances their incentive and ability to serve as a counterweight to organized business interests in the political sphere.416

The U.S. experience demonstrates, however, that simply allowing unions to bargain sectorally is unlikely to accomplish much—the NLRA already permits multi-employer bargaining to the extent employers and unions agree to it.417 Nor would the voluntary centralization of union organizations necessarily produce sectoral bargaining.418 A critical addition is active support from the state: for sectoral bargaining effectively to reduce wage inequality, employers must be required to engage in it, and its fruits must be extended throughout the labor market.419 Such state-supported sectoral bargaining—social bargaining—also provides workers greater influence in politics, over a host of policy decisions that affect workers’ daily lives. Indeed, comparative studies suggest that, from the perspective of creating egalitarian outcomes at the societal level, the two most important factors in a labor law regime are the establishment of broadly inclusive union organizations and the capacity of the state actively to broker deals between employer and union organizations.420

Governmental support for bargaining need not be accompanied by governmental control of labor organizations or restrictions on their freedoms—just as the absence of state support for bargaining under the current system does not ensure protection from state interference. Indeed, the American system includes significant governmental control over labor organizations, and significant court sanction of labor protest, despite the ideal of a voluntaristic, private system of labor relations.421 In contrast, numerous European systems grant unions significant political power but leave them much less fettered in their internal operations and in their ability to exercise economic power.422 In short, the extent of state intervention in unions is highly contingent, the product of multiple policy choices, and does not necessarily follow from giving unions more power to bargain at the social level.

The case for social bargaining as a means to enhance the economic and political power of workers is thus compelling. But the argument fails to respond to one of the critiques launched by proponents of the existing system: that the new labor law may well undervalue vibrant workplace organizations and may minimize the extent of worker voice at the place of employment. Our current system places the workplace at the heart of the labor-management relationship and seeks to increase worker voice and dignity at that location. Local unions, organized at the firm level, can have a significant impact on the daily work experience of individual workers and can shift their relationships with immediate supervisors in ways that enhance workers’ dignity.423

But the nascent labor law does not, and need not, eschew a system of workplace organizations altogether. Indeed, the Fight for $15 and other new campaigns suggest the possibility of a hybrid in which sectoral social bargaining would accompany either the existing system of exclusive representation at individual shops, or a new, developing system of non-exclusive representation, under which members-only worker organizations, or perhaps even works councils, would exist at individual worksites to supplement social bargaining.

iv. developing the new labor law

In the end, for those committed to achieving greater economic and political equality, the strongest objection to the emerging labor law regime is not that it would be ineffective but that it is unlikely to be achieved. Commentators have described earlier proposals for mandatory sectoral bargaining as fanciful and from the “political ozone.”424 But as Part II demonstrated, social bargaining is already nascent through the efforts of the Fight for $15 and other social movements. This Part elaborates on the existing legal footholds that could be deepened to facilitate the new labor law in the United States and considers potential obstacles.

A. A Legal Framework for Social Bargaining

The NLRB took a critical step toward more centralized bargaining with its recent Browning-Ferris decision.425 Returning to the broader, common law joint employment test in use before the mid-1980s, the Board emphasized its responsibility to adapt the NLRA to “changing patterns of industrial life.”426 Whether the Board’s standard will survive court review, hostile congressional oversight, or reconsideration by a different Board are open questions.427 But if the standard endures, it will further the goal of sectoral unionism advanced by the Fight for $15—to a point. As a result of the Browning-Ferris decision, employer responsibility for bargaining, as well as employer liability for violations of organizing rights, will move higher up the supply chain.428 This is true for labor contracts between companies and their subcontractors, for franchise agreements and other supply-chain employment relationships,429 and also for companies that contract with temp agencies. Indeed, the Board followed its Browning-Ferris decision with Miller & Anderson, Inc., holding that unions can seek to represent temp-agency workers combined with the employees at the firm where the temps are stationed.430 These decisions also effectively expand the permissible targets for unions’ economic activity, by limiting the effect of the prohibitions on secondary boycotts.431 And, along with other recent Board decisions, the new standards narrow the ability of employers to classify workers as independent contractors.432

That said, the reinstated joint employment standard does not require multi-employer bargaining. It supports firm-wide and perhaps supply-chain-wide bargaining, but not sectoral or regional bargaining.433 Without more substantial reform, these doctrinal developments are merely another tweak, albeit a positive one, on the existing system. Unions could gain new members from employers previously thought unorganizable—McDonald’s, Uber, and others—through traditional organizing methods and firm-based collective bargaining agreements. Much commentary surrounding Browning-Ferris seems to assume this path. Indeed, while pursuing a sectoral strategy, SEIU also appears to be following a traditional path of corporate pressure against McDonald’s, with some success.434 Some of the recent efforts to organize Uber drivers through NLRA processes fall in this category as well.435

How, then, to create the legal infrastructure to enable sectoral bargaining? In public statements, Scott Courtney, the Fight for $15’s campaign director, has expressed a commitment to this path, expressly rejecting a traditional firm-based union as the campaign’s goal. Instead, according to journalist Steven Greenhouse, Courtney “envisions a giant, nationwide organization of low-wage workers that would be financially sustainable” and would continually engage in systematic and broad-based tripartite bargaining.436 The Fight for $15 offers McDonald’s and other companies the opportunity to engage in a conversation on those terms.437

One could imagine a new federal law that would require bargaining on a sectoral basis. Such a statute could draw on successful elements from regimes elsewhere in the world,438 or from our own history.439 A proposal for wholesale federal law reform would, of course, require sensitivity to American particularities and governmental structure, as well as to constitutional constraints including limits on private delegation.440 This is a worthwhile long-term project. But design of such a statute, at this juncture, is premature. Critics are correct that comprehensive federal labor law reform is wholly unrealistic in our contemporary political climate. Indeed, far more modest labor law reform has repeatedly failed in Congress, even under periods of unified Democratic governments.441 Tellingly, the Fight for $15 has made comparatively little progress on the federal level even on its wage demands.442

A more realistic route is to expand the use of social bargaining at the local and state level. Much of this can be done within the confines of federal law—though legal challenges exist.

1. Expanding Local and State Sectoral Bargaining

At the outset, tripartite, sectoral bargaining can be expanded at the local and state level using existing mechanisms. In New York, the tripartite wage board is no longer in operation. As part of the compromise bill to raise the state-wide minimum wage to $15, employers successfully mobilized to strip the Commissioner’s authority to establish higher minimums for particular occupations.443 But several states other than New York grant executive branch actors the power to raise wages or regulate hours in particular sectors of the economy.444 Many require or encourage public hearings as part of the process.445 Several of these statutes, including those in California, Colorado, and New Jersey, expressly provide for tripartite commissions: wage boards with representation from employee groups, industry groups, and the public.446

For example, California law provides for an Industrial Welfare Commission (IWC) composed of two union representatives, two employer representatives, and one representative from the general public, all appointed by the governor, with the consent of the California State Senate.447 The IWC’s authority goes beyond creating a basic minimum wage: it has authority to evaluate wages in “an occupation, trade, or industry” to ensure they are adequate “to supply the cost of proper living.” It also can consider whether “the hours or conditions of labor” are “prejudicial to the health, moral, or welfare of employees.”448 If the IWC determines that wages, hours, or conditions are inadequate, it selects a wage board—again composed of two labor and two employer representatives, along with a neutral representative—to investigate and make recommendations.449 Recommendations that receive the support of two-thirds of the wage board’s members are incorporated into IWC proposed regulations, which are then subject to public hearings.450 The IWC has been used repeatedly in the past to set wages, overtime, and other standards in over sixteen industries.451

New Jersey law provides for a Minimum Wage Advisory Commission (WAC or Commission).452 The Commissioner of Labor and Workforce Development serves as chair. As in California, the Commission’s members are appointed by the Governor and include representatives from business and labor. New Jersey law further specifies that the business representatives “shall be nominated by organizations who represent the interests of the business community in this State” and the labor representatives “shall be nominated by the New Jersey State AFL-CIO.”453 The WAC is charged with evaluating the minimum wage annually.454 The law also allows the Commissioner to establish sectoral wage boards, composed of labor and business representatives, which then recommend minimum wages in particulars sectors. Wage boards can be established if the Commissioner believes “that a substantial number of employees in any occupation or occupations are receiving less than a fair wage.”455 The law also provides for a public hearing process after which the Commissioner decides whether to approve or reject the report.456

To date, the experience with these tripartite commissions has been mixed. In California, as well as recently in New York, wage boards have successfully established wage and hour protections above federal minimums in particular sectors of the economy. But most wage boards have been moribund for years, while others have been abandoned.457 Moreover, even where the wage board process has been used, the potential for social bargaining has been under-realized. Unions have not frequently engaged the commissions through widespread mobilization, testimony, and collective action.458 The boards also have structural limitations. The ability of workers to use wage boards to their benefit depends in large part on the identity of the Governor in the state; he or she influences when such boards act and who constitutes them. Furthermore, the neutral representatives on the commissions effectively decide disagreements. These individuals, selected by the partisan governors, serve as the swing votes and thereby minimize the extent to which true bargaining occurs. This weakness is pronounced when there is no broader worker mobilization exerting pressure on the commissions.

Nonetheless, more could be done to use existing wage boards aggressively, as was done by the Fight for $15 in New York. In jurisdictions where worker organizations have significant political influence, and where the executive branch is amenable, unions can petition wage boards to act. Where statutes permit, they can demand sector-by-sector wage and benefit improvements, beyond minimum wage increases. They can also engage workers in collective action designed to achieve such gains, as the Fight for $15 did in New York. Indeed, the Fight for $15 has announced its intention to pursue further wage board action.459

Progressive states and localities could also enact new, stronger sectoral bargaining statutes. A range of possibilities are worth exploring. For example, state or local laws could give tripartite commissions broader mandates on a sector-by-sector basis, making clear the authority is not limited to setting bare minimums, nor to wages. Wage scales, benefits, working conditions, leave policies, and scheduling rights could all be subject to bargaining. Such laws could also require commissions to act periodically rather than only upon executive branch request or public petition. The laws could further provide, building on the New Jersey model, that the composition of the commissions include the elected leadership of NLRB-certified unions in the particular sector, as well as leaders of the relevant industry groups and firms. And the laws could facilitate real bargaining by diminishing the power of the neutral representatives, perhaps by creating evenly split commissions or by incorporating an arbitration process in the event of a stalemate, while maintaining ultimate state supervision.

Whether through existing or improved statutes, collective action by workers is an essential component of effective social bargaining. As previously discussed, the law already offers some protection for collective action through political channels.460 Thus, workers could, as they did in New York, testify before wage boards, demonstrate in favor of certain results, and organize their co-workers. Section 7 of the NLRA would protect such activity even if the workers are not union members—as long as they do not violate a collective bargaining agreement or engage in other unprotected or illegal activity.461 The statute would also protect concerted political organizing in the workplace, as long as it occurs off duty, in a nondisruptive manner, or otherwise in accordance with nondiscriminatory work rules.

However, as Section I.A.2 documented, existing penalties for employer violations of section 7 are weak.462 Moreover, the current interpretation of section 7 does not permit workers to withhold their labor in support of their wage and benefit demands unless those demands are directed at their employer.463 Nor does it permit them to engage in partial strikes, planned intermittent work stoppages, or secondary economic activity to advance their demands.464 This doctrine is ripe for Board and Court reinterpretation—a subject for another paper.465 In the meantime, unions can organize their actions so that they fall within existing law’s protection.466

2. The Problems of Home Rule and Preemption

More expansive use of sectoral bargaining would undoubtedly come under legal challenge. To date, arguments that sectoral wage commissions violate the Equal Protection and Dormant Commerce Clauses have been easily dismissed: the statutes have a rational basis and do not discriminate between in-state and out-of-state businesses.467 So too, courts have rejected separation of powers and administrative law challenges: the statutes set forth a clear legislative policy position and then vest more specific decision-making authority in an expert body, without excessively delegating to private parties.468 Any expansion of social bargaining at the state or local level would have to maintain these basic characteristics, while attending to other constitutional constraints.469

Local law reform would face additional obstacles. Municipal corporations are subdivisions of the state and only have authority to enact laws if the state has granted them such powers.470 As a result, state governments can deny localities authority to engage in social bargaining or can overrule particular social bargaining that occurs at the local level. In circumstances where state government is more conservative than city or county government, elimination of home rule powers or rejection of particular regulations is a real danger. 471 The threat may be particularly salient where the locality is governed by a racial minority who lacks effective representation at the state level.472 For example, the Alabama legislature just voted to nullify a City of Birmingham law that would have set the city’s minimum wage at $10.10.473

Another risk is that employers or other aggrieved parties could challenge both state and local legislation on federal NLRA preemption grounds. The FLSA does not preempt state and local wage legislation, as long as the non-federal benefits exceed the floors set by federal statutes.474 States can pass, for example, higher minimum wages, more protective scheduling laws, and paid sick time provisions; so too can localities, as long as their home rule provisions permit them to do so. But opponents of social bargaining could potentially argue that once states or localities allow extensive social bargaining over wages and other terms or conditions in particular industries, they have entered the field of labor-management relations and are therefore subject to NLRA preemption.

In contrast to the FLSA, the NLRA’s preemption regime is extremely broad.475 There are two seminal cases. First, the Court concluded in San Diego Building Trades Council v. Garmon that Congress intended to prohibit states from regulating activity that is even “arguably” protected or prohibited by federal law.476 Second, the Court held in Lodge 76, International Ass’n of Machinists v. Wisconsin Employment Relations Commission477 that Congress’s decision to leave certain activity unregulated by the NLRA implied Congress’s intent that these forms of union and employer conduct be left completely unregulated.478 Where Congress left conduct “to be controlled by the free play of economic forces,”479 the states, like the NLRB, cannot regulate it.480

Here, it is the latter doctrine that poses a threat. Machinists could be invoked in opposition to local or state tripartite wage and benefit laws on the ground that this kind of legislation is not an ordinary wage and hour law, but is rather a form of collective bargaining. And, the argument would run, the NLRA clearly leaves the substantive outcome of bargaining “to be controlled by the free play of economic forces.”481

Though plausible, adopting this position would require a significant expansion of preemption law.482 The Court has repeatedly emphasized the prohibition against state actors shifting the balance of power in privately negotiated agreements,483 but it has never curtailed the ability of states and local governments to pass universally applicable employment legislation. Indeed, the Court has held that laws of general applicability are not preempted even when they “alter[] the economic balance between labor and management.”484 Here, unions would not be obtaining exclusive bargaining agreements as the result of tripartite negotiations, strengthening the case that the laws are truly of general applicability and the state is not entering the field of bargaining.485

B. Building Sustainable Worksite Organization

While the absence of exclusive bargaining agreements may help safeguard the fruits of social bargaining from legal challenge, this feature of the new labor law is also a limitation. Exclusive bargaining relationships tend to result in procedures that ensure that workers have a voice in specific workplace issues, through grievance procedures and local negotiation. They also tend to involve contractual provisions that require employers to collect dues from workers and remit them to the union. Without this form of “dues check-off” it is not clear how tripartite social bargaining would result in financially sustainable worker organizations. SEIU, for example, has spent vast amounts of money organizing the grassroots Fight for $15.486 Lacking the promise of membership dues via exclusive bargaining agreements with particular employers, or another source of funding, the union cannot sustain its efforts indefinitely, even if it continues to win improvements for workers through the expanded use of state and local initiatives.487

Yet the nascent labor law regime emerging from the Fight for $15 should not lead one to conclude that exclusive bargaining agreements are relics—or that mechanisms for worker voice and union funding will fall by the wayside.

1. Social Bargaining as a Complement to Exclusive Bargaining Agreements

To date, social bargaining seems to be strengthening unions’ ability to engage in traditional collective bargaining. Union leaders report that social bargaining has made it easier to obtain successful contracts because it has shifted employer expectations.488 For example, thousands of nursing-home workers recently won a contract guaranteeing $15 an hour from three nursing-home chains in Pennsylvania,489 while janitors in Colorado and the Pacific Northwest won new contracts that will raise their pay to $15.490 The mounting political support for wage gains seems to have softened some employer opposition at the traditional bargaining table.

To the extent wages and benefits are taken out of competition by local or state law, it makes sense that employers would have less reason to resist worksite collective bargaining. So too, when the state grants labor power to negotiate at the sectoral level, it is logical that unions’ overall position in society would be strengthened. Historical and comparative experience tends to support these assumptions.491 Indeed, lessons from history suggest that social bargaining could enhance unions’ ability to organize new workers into traditional unions. As scholars have documented, “during the periods when corporatism was in effect, under either the NIRA or subsequent, industry-specific regulation, unions grew in strength.”492 And newly unionized shops, with successful contracts, can provide continued dues payments for labor organizations.

2. New Funding Mechanisms

Still, a system based primarily on social bargaining cannot produce the same revenue for unions that was generated by firm-level exclusive representation at its peak. Unions in a social bargaining context may represent many workers, but the workers are not required to pay dues. This problem is not dissimilar to the challenge facing unions in light of right-to-work laws. As previously discussed, current law provides that when a majority of employees in a bargaining unit choose union representation, all employees in the unit are then represented by the union and the union must represent all of the employees equally.493 Twenty-six states, however, have enacted laws granting such union-represented employees the right to refuse to pay the union; 494 section 14(b) of the NLRA gives states the authority to do so.495 An inequity in the law results: the union is legally obligated to provide services to all workers in the bargaining unit but nonmembers need not pay for services.496

In light of the rise of right-to-work laws, and the threat of new constitutional law prohibiting mandatory union dues, scholars have begun to explore alternative funding mechanisms.497 Some of these proposals could be translated to a system of social bargaining. For example, one option, urged by Professors Catherine Fisk and Benjamin Sachs, is for the NLRB to abandon its rule forbidding unions from charging nonmembers a fee for representation services. Under the Board’s current rule, a union violates section 8(b)(1)(A) of the NLRA if it insists that nonmembers pay for representation in disciplinary matters, even where the nonmember has a right not to pay for the union’s representation generally.498 This position, Fisk and Sachs explain, is required by neither statute nor court doctrine, and could be changed by agency action.499

Fisk and Sachs’s argument for fee-for-service can be extended to the social bargaining context, where the union is advancing the interests of, and may be called upon to serve, nonmember workers who are not required to make dues payments. Thus, under a social bargaining model, unions should be able to charge for services, and specifically should be able to charge nonmembers more than they charge members. For example, unions could charge a low monthly fee to workers who voluntarily join the union; that fee could be paid by electronic funds transfer. Members would be entitled to a variety of services and benefits. At the same time, the union could offer services on a fee-based model to nonmembers.500 Such a ruling would require less of a shift in precedent than the one urged by Fisk and Sachs, as the existing doctrine does not consider the problem of fees absent exclusive bargaining relationships.

While a fee-for-service arrangement is unlikely to produce substantial income, it could be supplemented with additional revenue streams. One possibility, offered by some commentators, is for governmental entities to fund worker organizations.501 A limited variation of this approach is for local and state governments to provide grants to worker organizations to help with the enforcement and implementation of social bargaining laws; indeed, several states and localities already use worker organizations to help enforce local labor standards.502 Though mandating such arrangements on a national basis would be a non-starter, expanded use of this model may be possible in localities where workers have significant political power. Grants to unions to run worker-training programs and to operate benefit programs could also be expanded.503 While performing these tasks, unions could increase their solicitation of voluntary dues from worker-participants.

Employers might also contribute to union funding. For example, unions and employers could agree—privately or through tripartite bargaining—to create new hiring halls,504 or training funds,505 partially funded by employers. These models would have to be designed so as not to run afoul of Section 158(a)(2)’s ban on company unions or the prohibition on employers giving a “thing of value” to unions, but existing law leaves room to do so.506 Indeed, many industries have successfully used union-run training programs to the benefit of employees and employers.507

Pursuing any of the above alternatives would require attending to important design considerations, such as how to structure funding to ensure the continued independence of unions and their fealty to workers’ interests.508 For now, however, the point is simply that alternative funding sources are possible, even without federal statutory reform.

3. Worksite Representation and Alternative Forms of Worker Voice

Not only are alternative funding sources available, but social bargaining also opens up space to explore different forms of worksite representation. The Fight for $15 suggests one possibility: that unions could engage smaller groups of workers at particular facilities where the union lacks a majority but where workers benefit from broader social bargaining. The Fight for $15’s worksite actions at facilities where only a small number of workers affiliate with the movement are a fledgling example of this strategy.509

To date, the Board has permitted minority unions—and protected minority strikes—but it has refused to require employers to bargain with these groups of workers.510 As Professor Charles Morris has argued, the Board could change its position and adopt a rule requiring members-only bargaining.511 On his account, section 7 of the NLRA protects the right to engage in concerted action, to organize, and to bargain, but does not limit these rights to workplaces where a majority of workers have chosen a union.512 Section 9 provides a mechanism for choosing a union that enjoys the power of exclusive representation, but it does not prohibit members-only bargaining.513 Moreover, the Court has recognized that members-only bargaining is consistent with the policies of the NLRA and that agreements between employers and minority unions are enforceable under Section 301 of the Labor Management Relations Act.514 In short, while statutory law is not clear as to the obligation of employers to bargain with minority unions, such an interpretation by the agency would be reasonable.515

Minority unionism on its own, without social bargaining, has significant limitations. Small groups of workers lack significant bargaining power. But when combined with a social bargaining system under which the state or local government requires sectoral bargaining across the region, minority unionism could ensure that the workplace democracy inherent in the current model not get lost in favor of far-away tripartite structures. It could also help unions continue to fund themselves.

Other alternatives for new worksite structures exist as well; the minority unionism emerging from the Fight for $15 is just one possibility. For example, scholars have documented how worker movements are experimenting with other ways to enhance worker voice, from the use of supply chain agreements,516 to the creation of works councils,517 to the insistence on worker ownership.518 Though these approaches have not yet been joined with social bargaining on any significant scale, they are compatible with and could enhance the broader project.519

In short, while critics are correct to worry that the “new labor law” and its mechanisms for stronger industrial-level wage bargaining and political power for workers do not necessarily provide vast resources to unions or entail the kind of workplace-level representation or employee voice that firm-based bargaining historically provided in the United States, social bargaining is compatible with sustainable workplace structures. Further exploration of their contours is for another day.

Conclusion

For low-wage workers active in the Fight for $15, the new labor law is a matter of personal necessity. But their efforts have broader implications. We live today in what many have called a “Second Gilded Age,” with high levels of economic inequality, pronounced social and racial stratification, rising anti-immigrant sentiment, failing infrastructure, resurgent corporate capital, and “an increasingly supplicant public sphere.”520

As in the Progressive Era, a central problem facing the nation is the unchecked political and economic power of corporations and oligarchs.521 The new labor law offers a possible path forward.522 Harkening back to abandoned projects of the Progressive Era, 523 it represents a promising strategy for building a more equitable, inclusive, and democratic state. It suggests that regulation can be a vehicle through which the public contests economic power. It suggests that lawmaking can be a site of real democratic participation, where different groups in society share in decision-making. And it suggests that regulation can strengthen civil society by giving organizations a formal role in the democratic process.

Ultimately, the path out of the ashes of the New Deal labor law is only beginning to emerge. But the contours of a new legal regime are discernible from action in workplaces, on the streets, in legislatures, and before agencies. While the temptation to patch up the old model remains, to do so without confronting its core weaknesses would be a mistake. Likewise, to abandon collective bargaining altogether in favor of governance and regulation would offer little hope of addressing the deep structural inequities in our politics and economy. The revitalization of American democracy and a return to shared prosperity depend on the development of a new, more inclusive, and more political form of unionism. The foundation exists for more work to come.