The new labor law.
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 democracy (404) 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) better 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 Sis'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 underrealized. 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 coworkers. 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) per. (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 nonfederal 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 Commission (477) 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 land 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.
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.
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.
(1.) See Jake Rosenfeld, What Unions No Longer Do 10-30 (2014); cf. Richard B. Freeman & James L. Medoff, What Do Unions Do? (1984) (describing, as of the mid-1980s, the role of trade unions in the United States).
(2.) Rosenfeld, supra note 1, at 1; see also Bureau of Labor Statistics, Union Members Summary, U.S. Dep't Labor, (2015), http://www.bls.gov/news.release/union2.nro.htm [http://perma.cc/3RU3-SPBS] (providing data about union membership in 2015). Despite recent declines, unions still represent about thirty-five percent of public sector workers; the unionization rate in the private sector is about six percent. Bureau of Labor Statistics, supra.
(3.) Rosenfeld, supra note 1, at 4-8; see Jacob S. Hacker & Paul Pierson, Winner-Take-All Politics: Public Policy, Political Organization, and the Precipitous Rise of Top Incomes in the United States, 38 Pol. & Soc'y 152 (2010).
(4.) See infra Section I.B.
(5.) Thomas Piketty, Capital in the Twenty-First Century 23-24 (2014). Inequality has increased even during periods of economic growth and increased productivity. Id.
(6.) See Larry M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age 2, 285 (2008); Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America 79-81, 157-58 (2012); Rosenfeld, supra note 1, at 170-81; Kay Lehman Schlozman et al., Unheavenly Chorus: Unequal Political Voice and the Broken Promise of American Democracy 69-95 (2012); Thomas Byrne Edsall, The Changing Shape of Power: A Realignment in Public Policy, in The Rise and Fall of the New Deal Order, 1930-1980, at 269 (Steve Fraser & Gary Gerstle eds., 1989) [hereinafter Rise and Fall of the New Deal Order]; Hacker & Pierson, supra note 3, at 28; Monica Davey, with Fewer Members, A Diminished Political Role for Wisconsin Unions, N.Y. Times (Feb. 27, 2016), http://www.nytimes.com/2016/02/28/us/with-fewer-members -a-diminished-political-role-for-wisconsin-unions.html [http://perma.cc/2843-GB8P].
(7.) See, e.g., Cynthia L. Estlund, The Ossification of American Labor Law, 102 Colum. L. Rev. 1527, 1611-12 (2002) (arguing that the National Labor Relations Act has ossified); Alan Hyde, The Idea of the Idea of Labour Law: A Parable, in The Idea of Labour Law 88,97 (Guy Davidov & Brian Langille eds., 2011) [hereinafter Idea of Labour Law] (declaring that the "Idea of Labour Law" as a source of inspiration "is really over"); Paul Weiler, Promises To
Keep: Securing Workers' Rights to Self-Organization Under the NLRA, 96 Harv. L. Rev. 1769, 1769 (1983) (noting that "[c]ontemporary American labor law more and more resembles an elegant tombstone for a dying institution"). For additional scholarship exploring labor law's decline, see infra Section I.A.2. But see Lance Compa, Not Dead yet: Preserving Labor Law Strengths While Exploring New Labor Law Strategies, 4 U.C. Irvine L. Rev. 609, 610-12 (2014) (arguing that U.S. labor and employment law regimes constructed in the twentieth century are viable for the twenty-first century).
(8.) See Weiler, supra note 7, at 1769-70; see also infra notes 116-126 and accompanying text.
(9.) See Katherine V. W. Stone, From Widgets to Digits : Employment Regulation for the Changing Workplace 290 (2004); see also infra notes 132-159 and accompanying text.
(10.) See Jefferson Cowie, Capital Moves: RCA's Seventy-Year Quest for Cheap Labor 2 (1999) (detailing one company's "continuous struggle to maintain the social conditions deemed necessary for profitability"); David Weil, The Fissured Workplace: Why Work Became so Bad for so Many And What Can Be Done To Improve It 10 (2014) (using the term "fissured" to describe the subcontracted economy in which employers shed business functions not central to their core and discussing multiple motivations for the corporate restructuring).
(11.) See Derek C. Bok, Reflections on the Distinctive Character of American Labor Laws, 84 Harv. L. Rev. 1394, 1397 (1971); Joel Rogers, Divide and Conquer: Further "Reflections on the Distinctive Character of American Labor Relations" 1990 WIS. L. Rev. 1, 1; see also infra notes 49-56 and accompanying text.
(12.) See infra notes 163-177, 401-420 and accompanying text.
(13.) See Bok, supra note 11, at 1397; see also infra notes 49-56, 112-115 and accompanying text. Industry-wide pattern bargaining is permitted, though not mandated. Although pattern bar gaining existed in certain sectors for a time, it largely collapsed in the face of deindustrialization and globalization. See infra notes 73, 79-82, 154-156 and accompanying text.
(14.) Benjamin I. Sachs, Labor Law Renewal, 1 Harv. L. & Pol'y Rev. 375, 399-400 (2007). For a discussion of the numerous proposals, see infra Sections I.C.1, III.A.
(15.) See infra Sections I.C.2, III.A.
(16.) Minimum Wage Tracker, Econ. Pol'y Inst., (2016), http://www.epi.org/minimum-wage -tracker [http://perma.cc/HTG4-QHZQ]; State Minimum Wages, Nat'l Conf. St. Legislatures (2016), http://www.ncsl.org/research/labor-and-employment/state-minimum -wage-chart.aspx [http://perma.cc/UQ4E-MYMC]; City Minimum Wage Laws: Recent Trends and Economic Evidence, Nat'l Emp. Law PROJECT (Dec. 2015), http://www.nelp .org/content/uploads/City-Minimum-Wage-Laws-Recent-Trends-Economic-Evidence.pdf [http://perma.cc/VS5C-D3AX]. But see Alan Blinder, When a State Balks at a City's Minimum Wage, N.Y. Times (Feb. 21, 2016), http://www.nytimes.com/2016/02/22/us/alabama-moves -to-halt-pay-law-in-birmingham.html [http://perma.cc/WV4R-DJ7E] (describing the Alabama state legislature's decision to overrule Birmingham's local minimum wage). For further discussion of minimum wage increases, see infra Section II.B. For further discussion of state efforts to limit local wages, see infra Section IV.B.
(17.) See S.B. 3, 2016 Leg., Reg. Sess. (Cal. 2016); Nat'l Emp. Law Project, supra note 16; Press Release, New York Governor's Press Office, Governor Cuomo Signs $15 Minimum Wage Plan and 12 Week Paid Family Leave Policy into Law (Apr. 4, 2016), http://www.governor.ny.gov/news/governor-cuomo-signs-15-minimum-wage -plan-and-12-week-paid-family-leave-policy-law [http://perma.cc/NYP6-UCQC].
(18.) See infra note 278 and accompanying text.
(19.) See infra notes 288-295 and accompanying text.
(20.) On the distinction between employment law and labor law, see Benjamin I. Sachs, Employment Law as Labor Law, 29 Cardozo L. Rev. 2685, 2688-89 (2008), which describes the traditional view that labor and employment law constitute dichotomous regulatory regimes but notes critiques of that view. See also Theodore J. St. Antoine, Labor and Employment Law in Two Transitional Decades, 42 Brandeis L.J. 495, 526-27 (2004) (explaining that the preceding "two decades have continued the shift of emphasis from labor law to employment law--from governmental regulation of union-management relations, with collective bargaining expected to set most of the substantive terms of employment, to the direct governmental regulation of more and more aspects of the employer-employee relationship" and expressing regret at the diminishment of "private initiative and the voluntary arrangements that have made collective bargaining such a uniquely valuable American institution"). For further discussion, see infra Section I.B.
(21.) See Patrick McGeehan, Push To Lift Minimum Wage Is Now Serious Business, N.Y. TIMES (July 23, 2015), http://www.nytimes.com/2015/07/24/nyregion/push-to-lift-hourly-pay-is -now-serious-business.html [http://perma.cc/S7M8-9VPH]; Jenny Brown, Fast Food Strikes: What's Cooking?, LaborNotes (June 24, 2013), http://www.labornotes.org/2013/06 /fast-food-strikes-whats-cooking [http://perma.cc/A739-Y6CQ]; see also infra Part II.
(22.) More precisely, the campaign demands $15 an hour and the right to a union "free of intimidation." See Arun Gupta, Fight for 15 Confidential: How Did the Biggest-Ever Mobilization of Fast-Food Workers Come About, and What Is Its Endgame?, In These Times, (Nov. 11, 2013), http://inthesetimes.com/articIe/15826/fight_for_15_confidential [http://perma.cc/Y5V6 -SNKS]; see also Lydia DePillis, It's Not Just Fast Food: The Fight for $15 Is for Everyone Now, WASH. Post (Dec. 4, 2014), http://www.washingtonpost.com/news/storyline /wp/2014/12/04/its-not-just-fast-food-the-fight-for-15-is-for-everyone-now [http:// perma.cc/Z7GV-GJ6M]; Josh Eidelson, Fast Food Strikes To Massively Expand, SALON (Aug. 14, 2013), http://www.salon.com/2013/08/14/fast_food_strikes_massively _expanding_theyre_thinking_much_bigger [http://perma.cc/N9J2-6M3P].
(23.) See infra Section II.C.
(24.) See, e.g., Kathleen Thelen, Varieties of Liberalization and the New Politics of Social Solidarity (2014) (distinguishing forms of labor law regimes). Sociologists use "social movement unionism" and "social justice unionism" to refer to union campaigns that aspire to change underlying social conditions by emphasizing union democracy and alliances with other social movements. See, e.g., Cassandra Engeman, Social Movement Unionism in Practice: Organizational Dimensions of Union Mobilization in the Los Angeles Immigrant Rights Marches, 29 Work, Emp. & Soc'y 444, 446-48 (2015); Peter Waterman, Social-Movement Unionism: A New Union Model for a New World Order?, 16 Review (Fernand Braudel Ctr.) 245, 266-67 (1993); see also Kim Moody, Workers in a Lean World: Unions in the International Economy (1997) (urging social movement unionism). While the efforts described in this Article may fall under such categories, the focus here is on the legal regime, not the internal workings of the unions.
(25.) For examples of scholarship identifying these or closely related values as some of the primary goals of labor law, see Ruth Dukes, Hugo Sinzheimer and the Constitutional Function of Labour Law, in Idea of Labour Law, supra note 7, at 57-60; and Manfred Weiss, Re-Inventing Labour Law?, in Idea of Labour Law, supra note 7, at 43-45; cf. Freeman & Medoff, supra note 1, at 246-47 (concluding that unionism has a "voice/response face," as well as a "monopoly face," with effects on efficiency, distribution of income, and social organizations); Richard A. Posner, Some Economics of Labor Law, 51 U. Chi. L. Rev. 988, 990 (1984) (arguing that labor law is "founded on a policy that is the opposite of the policies of competition and economic efficiency").
(26.) See Karl Klare, The Horizons of Transformative Labour and Employment Law, in Labour Law in an Era of Globalization: Transformative Practices and Possibilities 3, 23 (Joanne Conaghan et al. eds., 2002) ("[O]ne must wonder about the adequacy of a model of redistribution classically wedded to the employer-employee dyad, when traditional workers and traditional employers are replaced by a complex variety of social actors in paid employment.").
(27.) For an analysis of how law encouraged the earlier American labor movement's embrace of private ordering over statism, see William E. Forbath, The Shaping of the American Labor Movement, 102 Harv. L. Rev. 1109 (1989) [hereinafter Forbath, The Shaping of the American Labor Movement] (arguing that while the nineteenth-century labor movement sought to pursue a radical vision of social and political reform, encounters with the legal system at the turn of the century led the labor movement to turn toward "voluntarism," a commitment to the private ordering of industrial relations between unions and employers); accord William E. Forbath, Law and the Shaping of the American Labor Movement (1991) [herein-after Forbath, Law and the Shaping of the American Labor Movement]. For a discussion of how employer advocacy and court and congressional action helped push the system in the direction of private ordering in the years after the Wagner Act, see infra notes 61-77 and accompanying text.
(28.) Nelson Lichtenstein, The Demise of Tripartite Governance and the Rise of the Corporate Social Responsibility Regime, in Achieving Workers' Rights in the Global Economy 95, 95 (Richard P. Appelbaum & Nelson Lichtenstein eds., 2016) (noting that the system was "often denominated as 'corporatism' in Europe, 'tripartism' in the United States").
(29.) The current phenomenon is markedly different from previous efforts to blur the distinction between employment law and labor law. Those tended to use employment law to achieve NLRA aims, see Sachs, supra note 20, at 2687 (documenting how "workers and their lawyers are turning to employment statutes like the Fair Labor Standards Act (FLSA) and Title VII of the Civil Rights Act of 1964" to facilitate "their efforts to organize and act collectively"), or abandoned a system of unionization in favor of self-regulation with elements of worker voice, see Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation 52-74 (2010) (describing the fall of collective bargaining and the proliferation of substantive mandates).
(30.) See, e.g., Leon Fink, The Long Gilded Age: American Capitalism and the Lessons of a New World Order 96 (2015); David Montgomery, The Fall of the House of Labor: The Workplace, the State, and American Labor Activism, 1865-1925 (1987); Christopher L. Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880-1960 (1985). For further discussion, see infra notes 51-53, 65-67, 445 and accompanying text.
(31.) See, e.g., Thelen, supra note 24 (examining labor market institutions in the United States, Germany, Denmark, Sweden, and the Netherlands).
(32.) See Mark Barenberg, Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible Production, 94 COLUM. L. Rev. 753, 961 (1994) (describing the prospects for a union default rule as in the "political ozone"). Recently, there has been rising interest in social bargaining and a weakening of the consensus that it is an impossibility. See Brishen Rogers, Libertarian Corporatism Is Not an Oxymoron, 94 Tex. L. Rev. 1623, 1624 (2016) (arguing for a model of labor relations in which the federal government "would strongly encourage or even mandate collective bargaining at the occupational or sectoral level (as corporatism has historically required), while leaving workers nearly unfettered choice as to bargaining representatives and removing certain core legal constraints on workers' concerted action"); David Rolf, Toward a 21st Century Labor Movement, Am. Prospect (Apr. 18, 2016) [hereinafter Rolf, Toward a 21st Century Labor Movement], http://prospect.org /article/toward-2ist-century-labor-movement [http://perma.cc/DFV5-RRMU] (offering sectoral bargaining as one of several models for how workers could wield greater power); accord David Rolf, The Fight for Fifteen 253-58 (20x6) [hereinafter Rolf, The Fight for Fifteen]; Lawrence Mishel, Lawrence Mishel Testifies Before the Democratic Platform Committee 2016, Econ. Pol'y Inst. (June 9, 2016), http://www.epi.org/publication/testimony-raise -americas-pay [http://perma.cc/5R7V-NMP6] (arguing for a "wholesale revision of labor laws to establish sectoral and occupational bargaining").
(33.) See Compa, supra note 7, at 610 (arguing that a labor and employment law system cannot be "wrenched from its historical moorings").
(34.) See, e.g., Estlund, supra note 7 (discussing obstacles to labor law reform). But see Matthew Dimick, Productive Unionism, 4 U.C. IRVINE L. Rev. 679 (2013) (emphasizing the importance of labor union structure to centralized bargaining and suggesting that unions can, on their own, move towards a more industrial system).
(35.) Though this Article focuses on legal obstacles, the political obstacles are significant as well. See infra notes 127, 360-372 and accompanying text.
(36.) To be sure, regulation of labor cannot, alone, remediate inequality; financial regulation, tax law, election law, and many other areas of law and policy are also essential, though beyond the scope of this Article.
(37.) Numerous international law instruments recognize the right of workers to organize, bargain collectively, and strike as fundamental human rights. See, e.g., International Covenant on Civil and Political Rights art. 22, adopted Dec. 19, 1966, 999 U.N.T.S. 171; G.A. Res. 217 (III) A, Universal Declaration of Human Rights art. 23 (Dec. 10, 1948); International Labour Conference, ILO Declaration on Fundamental Principles and Rights at Work (June 18, 1998). The United States has not ratified all of the relevant International Labour Organization Conventions. See Lance Compa, Trade Unions and Human Rights, in Bringing Human Rights Home: A History of Human Rights in the United States 351,360 n.15 (Cynthia Soohoo et al. eds., 2007).
(38.) Notably, the Fight for $15 has an important global dimension and has used foreign and international law instruments. See Gaspard Sebag, McDonald's Faces Antitrust Attack as Unions Complain to EU, Bloomberg (Jan. 12, 2016), http://www.bloomberg.com /news/articles/2016-01-12/mcdonald-s-faces-antitrust-attack-as-trade-unions-complain-to -eu [http://perma.cc/66MX-BJCY]. These efforts are beyond the scope of this Article. For a discussion of some reform efforts focused on supply chain organizing and global labor law, see, for example, James Brudney, Decent Labour Standards in Corporate Supply Chains: The Immokalee Workers Model, in Temporary Labour Migration in the Global Era 351 (Joanna Owens & Rosemary Howe eds., 2016).
(39.) For a discussion of these issues, see infra Section IV.B.
(40.) See Rolf, Toward a 21st Century Labor Movement, supra note 32; infra notes 349-350 and accompanying text.
(41.) For authors emphasizing these values, see supra note 25. Other scholars view protecting the efficiency of markets or the liberty of contract as law's primary function and object to current labor law, and unions on that ground. E.g., Richard A. Epstein, Labor Unions: Saviors or Scourges?, 41 Cap. U. L. Rev. 1 (2013); Posner, supra note 25, at 988; cf. Daniel DiSalvo, The Trouble with Public Sector Unions, 5 Nat'l Aff. 3, 17 (2010) (arguing that public sector unions "distort the labor market, weaken public finances, and diminish the responsiveness of government and the quality of public services"). These authors would likely object to the new labor law as well.
(42.) See Michael M. Oswalt, Improvisational Unionism, 104 CALIF. L. Rev. 597 (2016) (providing a detailed account of the Fight for $15 and describing it as "improvisational"); see also Marion Crain & Ken Matheny, Beyond Unions, Notwithstanding Labor Law, 4 U.C. Irvine L. Rev. 561, 563-64, 582 (2014) (concluding that the movements have little answer to "how to leverage worker power to accomplish lasting change"); Nelson Lichtenstein, Two Roads Forward for Labor: The AFL-CIO's New Agenda, Dissent, Winter 2014, http://www.dissentmagazine.org/article/two-roads-forward-for-labor-the-afl-cios-new-agenda [http://perma.cc/YCY5-JRMD] (describing the fast-food movement as eschewing unionization and a collective contract).
(43.) National Labor Relations (Wagner) Act, 29 U.S.C. [section][section] 151-169 (2012); see Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106 Harv. L. Rev. 1379, 1389 (1993) ("[T]he opportunity for such a dramatic legislative initiative was generated by 'mass politics' in the form of popular electoral realignment, populist political organization, and mass labor unrest.... That opportunity was seized by loosely interconnected networks of political-technocratic entrepreneurs driven by progressive ideological commitment and ambition.").
(44.) National Labor Relations (Wagner) Act [section] 7.
(45.) Sachs, supra note 20, at 2685.
(46.) E.g., Hammer v. Dagenhart, 247 U.S. 251, 277 (1918) (striking down, as exceeding the Commerce Clause, a federal law prohibiting transportation of goods produced in factories employing children).
(47.) E.g., Adair v. United States, 208 U.S. 161, 180 (1908) (striking down, under a substantive due process liberty of contract theory, federal legislation forbidding employers from requiring employees to agree not to join a union); cf. Lochner v. New York, 198 U.S. 45, 64 (1905) (holding that a state law imposing limits on working hours violated the Due Process Clause of the Fourteenth Amendment).
(48.) NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 49 (1937).
(49.) See Theodore J. St. Antoine, How the Wagner Act Came To Be: A Prospectus, 96 Mich. L. Rev. 2201, 2206 (1998) (reporting, based on interviews with the statute's drafters that "[a]t no point was there any discussion that the statute would revolutionize American employer-employee relations, beyond guaranteeing workers the right to organize and bargain collectively"). The Court's decision to uphold the Wagner Act as a matter of commerce, rather than as an exercise of civil rights power, some contend, cemented the statute's more conservative dimensions. James Gray Pope, The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921-1957, 102 Colum. L. Rev. 1 (2002); see also James Gray Pope, Labor's Constitution of Freedom, 106 Yale L.J. 941 (1997) (distinguishing unionists' "constitution of freedom," which promised fundamental labor rights, from the progressive constitutionalism that ultimately prevailed after the New Deal, as well as from the laissez-faire constitutionalism of the Lochner era).
(50.) See St. Antoine, supra note 49, at 2202 n.10, 2206 (citing 4 Selig Perlman & Philip Taft, History of Labor in the United States, 1896-1932: Labor Movements 609-14 (John R. Commons ed., 1935); Philip Taft, Organized Labor in American History 435-50 (1964)).
(51.) Forbath, Law and the Shaping of the American Labor Movement, supra note 27, at 12830; Forbath, The Shaping of the American Labor Movement, supra note 27, at 1125. Forbath shows that, while the nineteenth-century labor movement sought to pursue a radical vision of social and political reform, encounters with the legal system at the turn of the century led dominant elements of the labor movement to demand private ordering of industrial relations between unions and employers. On social bargaining in Europe, see infra notes 172177,401-420 and accompanying text.
(52.) This early New Deal statute was ultimately struck down on separation-of-powers grounds in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), which held that the code-malting authority conferred by NIRA impermissibly delegated legislative power. Id. at 542. For a discussion of NIRA's promise and problems, see Jefferson Cowie, The Great Exception 104-08 (2016).
(53.) Michael L. Wachter, Labor Unions: A Corporatist Institution in a Competitive World, 155 U. Pa. L. Rev. 581, 599-600 (2007); see also Fink, supra note 30, at 96, 102-08, 111-16 (noting that "as far back as the 1870s and continuing through the 1880s, the American labor movement imagined a positive role for government in buttressing workers' power and adjudicating major industrial disputes" and describing progressive era experiments with industrial commissions and dispute resolution from 1880 to 1920). Notably, drafters of the NLRA and the Social Security Act initially considered a tripartite form of oversight agency. And the Fair Labor Standards Act (FLSA), in its early years, included a mechanism for tripartism: it established industry committees who had discretion to set minimum wages on an industry-by-industry basis. Amendments to the FLSA eliminated the committees in 1949. See Bruce E. Kaufman, John R. Commons and the Wisconsin School on Industrial Relations Strategy and Policy, 57 INDUS. & Lab. Rel. Rev. 3, 23 (2003).
(54.) See infra notes 79-82, 154-156 and accompanying text.
(55.) For further discussion, see infra notes 112-115, 162-177 and accompanying text.
(56.) National Labor Relations (Wagner) Act [section] 2. The agency-imposed exemption for small businesses also had the effect of exempting vulnerable workers, particularly women and minorities, from coverage, as did the statutory exemption for hospital workers, which was eventually limited. See Caroline Fredrickson, Under the Bus: How Working Women Are Being Run Over 29-31, 35-42 (2015).
(57.) Karl E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941, 62 Minn. L. Rev. 265, 265 (1978).
(58.) Id. at 266; see also Barenberg, supra note 32, at 769 n.31 (arguing for reforms that would make labor law's structures "more faithful to the pragmatic cooperationism" of Senator Wagner and his allies); Barenberg, supra note 43, at 1381 (examining Senator Wagner's "crusade to build a cooperative social democracy"); Craig Becker, Democracy in the Workplace: Union Representation Elections and Federal Labor Law, 77 Minn. L. Rev. 495, 496-97 (1993) (describing Senator Wagner's characterization of the Act).
(59.) National Labor Relations (Wagner) Act [section] 7, 29 U.S.C. [section] 157 (2012); see Eastex, Inc. v. NLRB, 437 U.S. 556, 564-67 (1978) (emphasizing breadth of section 7's protection); NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962) (extending section 7 rights to nonunion employees). The scope of section 7 remains contested today. Compare Lewis v. Epic Sys. Corp., No. 15-2997 (7th Cir. May 26, 2016) (emphasizing breadth of section 7 protection and concluding that an employer's arbitration provision, requiring employees to bring any wage and hour claims through individual arbitration, violates section 7 of the NLRA) with Murphy Oil v. NLRB, 808 F.3d 1013 (5th Cir. 2015) (concluding that employer's individual arbitration agreements may prohibit class-wide claims, notwithstanding employee rights under section 7).
(60.) 79 Cong. Rec. 7565 (1935), reprinted in 2 NLRB, Legislative History of the National Labor Relations Act (Wagner Act) 1935, at 2321 (1959).
(61.) See Nelson Lichtenstein, From Corporatism to Collective Bargaining: Organized Labor and the Eclipse of Social Democracy in the Postwar Era, in Rise and Fall of the New Deal Order, supra note 6, at 122, 122-23.
(62.) Klare, supra note 57, at 286-87 (describing how "the business community embarked upon a path of deliberate and concerted disobedience to the Act" in the years following its enactment). For a history of the early years of the internal workings of the NLRB, including the agency's transformation from a tripartite body designed to conciliate disputes between employers and unions to a quasi-judicial entity, see 1 James Gross, The Making of the National Labor Relations Board: A Study in Economics, Politics, and the Law 1933-1937 (1974).
(63.) Klare, supra note 57, at 292-93, 301-10, 322-25, 327-34, 337.
(64.) James B. Atleson, Values and Assumptions in American Labor Law 19 (1983) (citing NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345-46 (1938) (holding that employees engaged in an economic strike that is "protected" by section 7 are nonetheless subject to permanent replacement by their employer)); Matthew W. Finkin, Labor Policy and the Enervation of the Economic Strike, 1990 U. III. L. Rev. 547, 549-67 (describing changes in doctrine).
(65.) Nelson Lichtenstein, A Contest of Ideas: Capital, Politics, and Labor 80-84 (2013); Lichtenstein, supra note 61, at 124.
(66.) Lichtenstein, supra note 61, at 124; Wachter, supra note 53, at 610-13.
(67.) Lichtenstein, supra note 61, at 124-33.
(68.) Lichtenstein, supra note 65, at 84-89; Lichtenstein, supra note 61, at 134.
(69.) Lichtenstein, supra note 61, at 134; see James A. Gross, The Reshaping of the National Labor Relations Board: National Labor Policy in Transition, 1937-1947 (1981) (describing conditions that gave rise to the enactment of Taft-Hartley); Tomlins, supra note 30, at 148-50 (describing divisions within the labor movement, as well as opposition from the business community).
(70.) Labor Management Relations (Taft-Hartley) Act, 29 U.S.C. [section] 141 (2012) (amending the National Labor Relations Act of 1935); see Archibald Cox, The Evolution of Labor-Management Relations, in Law and the National Labor Policy 13-14 (1960); Kim Phillips-Fein, Invisible Hands: The Businessmen's Crusade Against the New Deal 31-32 (2010).
(71.) Labor historians disagree over whether Taft-Hartley was a codification and consolidation of preexisting legal restriction or a turning point. See Tomlins, supra note 30, at 250-51 (discussing the extent to which reorientation was present in prior NLRB and Supreme Court decisions); Nelson Lichtenstein, Taft-Hartley: A Slave-Labor Laiv?, 47 Cath. U. L. Rev. 763, 763-65 (1998) (reviewing the debate).
(72.) 29 U.S.C. [section] 151 (2012).
(73.) Id. [section] 158(b)(4).
(74.) Id. [section] 158(a)(3), 164(b).
(75.) Id. [section] 158(c).
(76.) Id. [section] 152(3).
(77.) 29 U.S.C. [section] 159(h) (1958), repealed by Labor-Management Reporting and Disclosure (Landrum-Griffin) Act of 1959 [section] 201(d), Pub. L. No. 86-257, 73 Stat. 525. The Taft-Hartley Act also made a number of changes in the administration of the Act. For a discussion of the Taft-Hartley Act's changes and their effect on the contemporary labor movement, see Rich Yeselson, Fortress Unionism, 29 Democracy (Summer 2013), http:// democracyjournal.org/magazine/29/fortress-unionism [http://perma.cc/RP3P-HZ8Z].
(78.) Lichtenstein, supra note 71, at 766 (describing labor's denunciation of the law as a "Slave-Labor Act").
(79.) Lichtenstein, supra note 65, at 96-98 (describing union contract victories that covered multiple employers but noting that pattern bargaining never spread beyond core, highly organized manufacturing industries); Nelson Lichtenstein, The Most Dangerous Man in Detroit 271-98 (1995) [hereinafter Lichtenstein, Most Dangerous Man] (describing "The Treaty of Detroit"); Mark Anner, Jennifer Bair & Jeremy Blasi, Learning from the Past: The Relevance of Twentieth-Century New York Jobbers' Agreements for Twenty-First-Century Global Supply Chains, in Achieving Workers' Rights in the Global Economy 239 (Richard P. Appelbaum & Nelson Lichtenstein eds., 2013) (describing jobbers' agreements negotiated among workers, garment manufacturers, and purchasers in the U.S. garment sector in the early- and mid-twentieth century, negotiated at a time when the garment industry was less mobile). Industry-wide bargaining persists in some industries, including the arts and professional sports. See, e.g., Catherine Fisk, Writing for Hire: Unions, Hollywood, and Madison Avenue (2016) (describing industry-wide bargaining in Hollywood). But while permitted, these arrangements are not required by law.
(80.) Lichtenstein, supra note 65, at 96-98. For example, between 1947 and 1960, during the heyday of the United Automobile Workers, average wages in the automobile industry nearly doubled. Lichtenstein, Most Dangerous Man, supra note 79, at 288.
(81.) Union density and pattern bargaining were by no means the only drivers of this relative economic equality. A range of other factors, including a growing economy, technological changes, the enactment of the GI Bill, comparatively low executive pay, robust financial regulation, a progressive tax system, and the entrance of women into the workforce all contributed to the rise of the American middle class and the period of relative economic egalitarianism. See Cowie, supra note 52, at 153; Jacob S. Hacker & Paul Pierson, Winner-Take-All Politics: How Washington Made the Rich Richer-And Turned Its Back on the Middle Class 88-90 (2010); Michael Lind, Land of Promise 329-62 (2012); Suzanne Mettler, Soldiers to Citizens: The G.I. Bill and the Making of the Greatest Generation (2007).
(82.) Rosenfeld, supra note 1, at 2.
(83.) Steve Fraser, The 'Labor Question, ' in Rise and Fall of the New Deal Order, supra note 6, at 55 (arguing that workers came to seek personal satisfaction not in labor's control of politics or the economy, but in access to the consumer marketplace); Lichtenstein, supra note 61, at 143-44 (describing a transformation in the 1940s from a social democratic insurgency to an interest group content with a private, depoliticized system of collective bargaining).
(84.) For a discussion of the relationship of the white labor movement to black workers and the emerging civil rights movement, see SOPHIA Z. Lee, WORKPLACE CONSTITUTION: From THE New Deal to the New Right (2014); for a discussion of the labor movement's relationship to immigrants, see Janice Fine & Daniel J. Tichenor, A Movement Wrestling: American Labor's Enduring Struggle with Immigration, 1866-2007, 23 STUD. Am. Pol. Dev. 84 (2009).
(85.) See Elizabeth Tandy Shermer, "Is Freedom of the Individual Un-American?" Right-to-Work Campaigns and Anti-Union Conservatism, 1943-1958, in The Right and Labor in America: Politics, Ideology, and Imagination 114 (Nelson Lichtenstein & Elizabeth Tandy Shermer eds., 2012) [hereinafter The Right and Labor] (describing right-to-work referenda campaigns in the South and Southwest during the post-war period).
(86.) Tami J. Friedman, Capital Flight, "States' Rights," and the Anti-Labor Offensive After World War II, in The Right and Labor, supra note 85, at 81-83.
(87.) Leon Fink, Upheaval in the Quiet Zone (1989) (describing the history of the health care union and its connection to the civil rights movement); Joseph E. Slater, Public Workers: Government Employee Unions, the Law and the State, 1900-1962, at 193-95 (2004) (documenting the creation of new state public sector bargaining laws and the rise of public sector unions).
(88.) In more recent years, Republican governors and legislators in formerly pro-union states like Ohio, Michigan, Indiana, Wisconsin, West Virginia, and Illinois have sought, and in most cases won, new legislation that reduces public employee pensions and benefits; defunds public sector unions by eliminating dues check-off and agency-fee payments; and narrows the scope of public sector bargaining. See Nelson Lichtenstein, State of the Union: A Century of American Labor 286-89 (2013).
(89.) Weil, supra note 10, at 3, 11, 52.
(90.) See generally James C. Cobb, The Selling of the South : The Southern Crusade for Industrial Development, 1936-1990, at 96-121, 209-28 (1993) (describing the shift of manufacturing from the unionized north to the nonunion and low-wage southern states); COWIE, supra note 10, at 127-51 (documenting the shift of the Radio Corporation of America's production from the Midwest to Mexico and its impact on U.S. workers).
(91.) Craig Becker, Labor Law Outside the Employment Relation, 74 TEX. L. REV. 1527, 1527 & n.1 (1996) (noting that by 1996 the service sector employed over three-quarters of the nonagricultural workforce).
(92.) Weil, supra note 10, at 3-4 (describing Assuring as splitting off business and labor functions that were once managed internally).
(93.) Id. at 25, 125, 172, 174, 191, 292.
(94.) Id. at 160; Becker, supra note 91, at 1528-30; Lawrence F. Katz & Alan B. Krueger, The Rise and Nature of Alternative Work Arrangements in the United States, 1995-2015, at 3, 17 (Mar. 29, 2016) (unpublished manuscript), http://scholar.harvard.edu/files/lkatz/files/katz _krueger_cws_v3.pdf [http://perma.cc/8SBR-YCBG]. The use of contingent work arrangements, such as freelance and contract work, is sometimes referred to as the "gig" economy. See Emily Hong, Making It Work: A Closer Look at the Gig Economy, PAC. STANDARD (Oct. 23, 2015), http://www.psmag.com/business-economics/making-it-work-a -closer-look-at-the-gig-economy [http:/Zperma.ee/5JRJ-PJ3H].
(95.) Weil, supra note 10, at 3-4, 10-12.
(96.) See Jefferson Cowie, Stayin' Alive: The 1970s and the Last Days of the Working Class 362-64 (2010) (describing an "assault" against unions and other working class institutions after President Reagan's crackdown on air traffic controllers); Joseph A. McCartin, COLLISION Course: Ronald Reagan, the Air Traffic Controllers, and the Strike that Changed America (2011) (analyzing President Reagan's firing of air traffic controllers and its impact on the labor movement).
(97.) Rosenfeld, supra note 1, at 86-88.
(98.) Phillips-Fein, supra note 70, at 89-90 (describing corporations' decisions to move south to nonunionized areas); Becker, supra note 91, at 1528-30 (discussing the use of subcontracting to bypass collective bargaining arrangements).
(99.) See Kate L. Bronfenbrenner, Employer Behavior in Certification Elections and First-Contract Campaigns: Implications for Labor Law Reform, in Restoring the Promise of American Labor Law 75 (Sheldon Friedman et al. eds., 1994); Kate Bronfenbrenner, No Holds Barred: The Intensification of Employer Opposition to Organizing, E.P.I. Briefing Paper No. 235, 1, 10 tbl.3 (2009) [hereinafter Bronfenbrenner, No Holds Barred].
(100.) See, e.g., First Nat'l Maint. Corp. v. NLRB, 452 U.S. 666 (1981) (holding that employers had no duty to bargain over decisions to terminate contracts); Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263 (1965) (holding that an employer's decision to close his entire business, even if due to antiunion animus, is not an unfair labor practice); see also Becker, supra note 91, at 1527 (arguing that legal doctrine "decisively promote[d] the deployment" of subcontracting and other strategies to fissure the employment relationship); Terry Collingsworth, Resurrecting the National Labor Relations Act--Plant Closings and Runaway Shops in a Global Economy, 14 Berkeley J. Emp. & Lab. L. 72, 76, 101-04 (1993) (critiquing the Supreme Court's decisions for allowing for the displacement of American workers); Katherine Van Wezel Stone, Labor and the Corporate Structure: Changing Conceptions and Emerging Possibilities, 55 U. Chi. L. Rev. 73, 90-91 (1988) (describing how the NLRB's efforts to allow bargaining over capital decisions were undercut by the federal courts of appeals and eventually by the Supreme Court).
(101.) See Rosenfeld, supra note 1, at 96. The Hormel strike also illustrates the failure of some unions to mount a vigorous, effective, industry-wide response to demands for concessions. American Dream (Miramax Films 1990) (documenting the Hormel strike of 1985).
(102.) See, e.g., Dale L. Belman & Kristen A. Monaco, The Effects of Deregulation, De-Unionization, Technology, and Human Capital on the Work and Work Lives of Truck Drivers, 54 Indus. & Lab. Rel. Rev. 502, 508 (2001) (concluding that deregulation accelerated the de-unionization of the trucking industry and contributed to a significant drop in earnings).
(103.) See, e.g., Stone, supra note 9; Weil, supra note 10, at 4; Mark Barenberg, Widening the Scope of Worker Organizing: Legal Reforms To Facilitate Multi-Employer Organizing, Bargaining, and Striking, ROOSEVELT INST. 1, 3 (Oct. 1 2015), http://rooseveltinstitute.org /wp-content/uploads/2015/10/Widening-the-Scope-of-Worker-Organizing.pdf [http:// perma.cc/JWN2-DS57].
(104.) Lawrence Mishel, Elise Gould & Josh Bivens, Wage Stagnation in Nine Charts, Econ. Pol'y Inst. (Jan. 6, 2015), http://www.epi.org/files/2013/wage-stagnation-in-nine -charts.pdf [http:/Zperma.ee/R2C5-QAH5].
(105.) Katz & Krueger, supra note 94, at 2-3.
(106.) Richard B. Freeman & Joel Rogers, What Workers Want 41 (1999) (finding that over sixty percent of workers desired greater influence in the workplace); Lichtenstein, supra note 88, at 213. The losses were concentrated in the manufacturing sectors of the economy.
(107.) Julius G. Getman, Explaining the Fall of the Labor Movement, 41 St. Louis U. L.J. 575, 578-84 (1997); Michael H. Gottesman, In Despair, Starting Over: Imagining a Labor Law for Unorganized Workers, 69 Chi.-Kent L. Rev. 59, 61-62 (1993); Weiler, supra note 7, at 1769-70, 1774-1804.
(108.) H. SUBCOMM. ON LABOR-MGMT. RELATIONS OF THE H. COMM. ON EDUC. & LABOR, 98TH Cong., The Failure of Labor Law-A Betrayal of American Workers i (Comm. Print 1984).
(109.) Weiler, supra note 7, at 1770 (writing, in the early 1980s, that "[i]n the last decade or so, there has been an increasing appreciation that American labor law has failed to make good on its promise to employees that they are free to embrace collective bargaining if they choose"). For additional accounts by legal scholars, see sources cited supra notes 116-126; for human rights organizations' and political accounts, see, for example, Lance Compa, Human Rights Watch, Unfair Advantage: Workers' Freedom of Association in the United States Under International Human Rights Standards (2002); Dunlop Comm'n on the Future of Worker-Mgmt. Relations, U.S. Dep't of Labor, Final Report (1995); for an historian's perspective, see, for example, Cowie, supra note 52, at 25-26.
(110.) See, e.g., Michael L. Wachter, The Striking Success of the National Labor Relations Act, in Research Handbook on the Economics of Labor and Employment Law 427 (Cynthia L. Estlund & Michael L. Wachter eds., 2012) (arguing that the NLRA has achieved its most important goal: industrial peace).
(111.) Hacker & Pierson, supra note 81, at 57-58; Thelen, supra note 24, at 35-37; cf. Jonas Pontusson et al., Comparative Political Economy of Wage Distribution: The Role of Partisanship and Labour Market Institutions, 32 Brit. J. Pol. Sci. 281, 307 (2002) ("While market forces have tended to generate more inequality, there is nonetheless no uniform or universal trend towards more overall wage inequality among full-time employees across the OECD.").
(112.) 29 U.S.C. [section] 159 (2012).
(114.) See id. (establishing that recognition without an election, though not mandated, is permitted).
(115.) Id. [section] 158.
(116.) See, e.g., James J. Brudney, Reflections on Group Action and the Law of the Workplace, 74 Tex. L. Rev. 1563 (1996); Gottesman, supra note 107; Sachs, supra note 20, at 2694-2700; Weiler, supra note 7, at 1769-70; see also Kate Bronfenbrenner, Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages, and Union Organizing 43 (Cornell U. ILR Collection 2000), http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1002&context =reports [http://perma.cc/74LQ-NQJ3] (noting that managerial opposition is "extremely effective in reducing union election win rates" and documenting the trends in such opposition).
(117.) See Kate E. Andrias, Note, A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections, 112 Yale L.J. 2415, 2433-44 (2003); see also Becker, supra note 58, at 516-23 (1993) (describing employers' influence on election timing as a tactic to deter unionization).
(118.) Neither of these rules was foreordained by the statute's text. The Act was initially interpreted as affording union organizers access to nonwork areas of the employer's facility; but that interpretation was reversed by the Supreme Court in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113-14 (1956). The Court has since reaffirmed its interpretation. See Lechmere, Inc. v. NLRB, 502 U.S. 527, 536-37 (1992). For further discussion, see Cynthia L. Estlund, Labor, Property, and Sovereignty After Lechmere, 46 Stan. L. Rev. 305, 311-25 (1994). For discussion of the doctrine that allows employers to compel employees to attend antiunion meetings, see Andrias, supra note 117, at 2439-41.
(119.) Weiler, supra note 7, at 1777 & n.24.
(120.) See Gottesman, supra note 107, at 73.
(121.) Bronfenbrenner, No Holds Barred, supra note 99.
(122.) See Weiler, supra note 7, at 1789-95 (describing the weaknesses of NLRA remedies).
(123.) 74 NLRB Ann. Rep. 152 (2009).
(124.) Catherine L. Fisk & Adam R. Pulver, First Contract Arbitration and the Employee Free Choice Act, 70 La. L. Rev. 47,56 (2009).
(125.) Estlund, supra note 7, at 1538 (citing ATLESON, supra note 64, at 19-34). The federal courts and the Board have limited the right to strike in numerous other ways as well. See Craig Becker, "Better Than a Strike": Protecting New Forms of Collective Work Stoppages Under the National Labor Relations Act, 61 U. CHI. L. Rev. 351, 353 (1994).
(126.) See First Nat'l Maint. Corp. v. NLRB, 452 U.S. 666 (1981); Textile Workers v. Darlington Mfg. Co., 380 U.S. 263 (1965). Employer rights are particularly strong if the employer is making a change in the nature of its business or closing operations altogether. In such cases, employers typically need only bargain about the effect of the closure. Id.; see also sources cited supra note too.
(127.) For a summary of reform failures, see Benjamin I. Sachs, Despite Preemption: Making Labor Law in Cities and States, 124 Harv. L. Rev. 1153, 1163-64 (2011); and Estlund, supra note 7, at 1612. There was one significant reform in the post-Taft-Hartley era: The Landrum-Griffin Act of 1959 imposed a regime for the regulation of internal union affairs and union democracy, while tinkering with some elements of Taft-Hartley. See Labor-Management Reporting and Disclosure (Landrum-Griffin) Act of 1959, Pub. L. No. 86-257, 73 Stat. 519 (codified as amended in scattered sections of 29 U.S.C.).
(128.) Employee Free Choice Act of 2007, H.R. 800, 110th Cong. (2007).
(129.) Id. Although the House of Representatives passed the Employee Free Choice Act in 2007, the bill died after a threatened senatorial filibuster. See, e.g., Steven Greenhouse, Democrats Drop Key Part of Bill To Assist Unions, N.Y. TIMES (July 17, 2009), http://www .nytimes.com/2009/07/17/business/17union.html [http://perma.cc/6QAN-UWNT]; Alec MacGillis, Executives Lay Out Compromise to "Card Check" Labor Bill, Wash. Post (Mar. 22, 2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/03/21 /AR2009032101449.html [http://perma.cc/9S8Y-BM4K]. In 2007, the bill died in the Senate after a cloture vote failed 51-48. See 153 Cong. Rec. S8398 (daily ed. June 26, 2007).
(130.) Harold Meyerson, Under Obama, Labor Should Have Made More Progress, Wash. Post (Feb. 10, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/02 /09/AR2010020902465.html [http://perma.cc/M8T2-YAR2] (describing the Senate's inability to pass EFCA as "devastating and galling" for the unions).
(131.) For similar reasons, recent regulatory changes promulgated by the NLRB, which would shorten the election period and adjust other procedures, while important, are unlikely to be game changing. See Representation--Case Procedures, 79 Fed. Reg. 74308 (Dec. 15, 2014) (to be codified at 29 C.F.R. pts. 101-03). These rules recently survived legal challenge in the Fifth Circuit and the District of Columbia. Associated Builders & Contractors of Tex. v. NLRB, 826 F.3d 215 (5th Cir. 2016); Chamber of Commerce of U.S. v. NLRB, 118 F. Supp. 3d 171 (D.D.C. 2015).
(132.) See Stone, supra note 9; Samuel Estreicher, Labor Law Reform in a World of Competitive Product Markets, 69 Chi.-Kent L. Rev. 3, 5 n.5 (1993); Wachter, supra note 53, at 581.
(133.) For a detailed description and analysis of the various ecosystems of disintegrated employers, see generally Weil, supra note 10; and Barenberg, supra note 103.
(134.) See Weil, supra note 10, at 58-59, 68-69, 160; Barenberg, supra note 103.
(135.) Weil, supra note 10, at 26, 170.
(137.) See id. at 128, 159-68, 173-77 (discussing the pervasiveness of temporary workers and independent contractors in various industries, including retail).
(138.) Id. at 102. Moreover, the retailer's supply chain is likely interwoven with others to form a complex production and distribution network. Goods sold by one big-box retailer may be produced in the same factories as those of other big-box retailers, transported by some of the same logistics companies to some of the same ports, unloaded by some of the same stevedoring companies, transported by some of the same trucking companies, and stored in some of the same warehouses, before ultimately arriving to the stores. See Barenberg, supra note 103, at 3.
(139.) McDonald's, for example, has more than 35,000 restaurants but less than a fifth of them are actually operated by the McDonald's corporation. Oswalt, supra note 42, at 622.
(140.) Brishen Rogers, Employment Rights in the Platform Economy: Getting Back to Basics, 10 Harv. L. & Pol'y Rev. 479, 480 (2016) (defining the "platform economy" as "companies such as Uber, Lyft, TaskRabbit, Postmates, and Handy, all of which provide online platforms that match consumers with workers for short-term tasks").
(141.) But see, e.g., Berwick v. Uber Techs. Inc., No. 11-46739 EK, slip op. at 10 (Cal. Labor Comm'r June 3, 2015) (holding that Uber drivers qualify as employees under California law).
(142.) National Labor Relations (Wagner) Act [section] 2(3), 29 U.S.C. [section] 152(3) (2012).
(143.) On February 2, 2016, the International Brotherhood of Electrical Workers, Local 1430 filed a formal petition with the NLRB to represent 600 Uber drivers who serve New York City's LaGuardia Airport, which they subsequently withdrew. See Uber USA, LLC, N.L.R.B., 29RC-168855 (2016). State agencies are divided on the status of Uber divers. The California Labor Commissioner has ruled that they are employees. See Berwick, slip op. at 10. Authorities in eight states have concluded that they are not employees. See Tom Risen, Employee or Contractor? Uber Ruling Could Affect Other Companies, U.S. News (June 18, 2015), http://www.usnews.com/news/articles/2015/06/18/employee-or-contractor-uber -ruling-could-affect-other-companies [http://perma.cc/JQ3E-2MSM] ("Labor authorities in Georgia, Pennsylvania, Texas, Colorado, Illinois and New York have upheld Uber's classification that its drivers are independent contractors."). Though Uber has settled several major class actions without conceding that its drivers are employees, there are numerous additional lawsuits pending. See Mike Isaac & Noam Scheiber, Uber Settles Cases with Concessions, but Drivers Stay Freelancers, N.Y. Times (Apr. 21, 2016), http://www.nytimes.com/20 16/04/22/technology/uber-settles-cases-with-concessions-but-drivers-stay-freelancers.html [http://perma.cc/6RLL-X92X]; Heather Kelly, Uber's Never-Ending Stream of Law Suits, CNN Money (Aug. 11, 2016), http://money.cnn.com/2016/08/11/technology/uber -lawsuits [http://perma.cc/8JR9-TBXZ]. In addition, the NLRB continues to investigate complaints that Uber illegally bars drivers from discussing working conditions; the outcome of these will turn, in part, on whether the drivers are statutory employees. Daniel Wiessner, Uber Drivers' Employment Status Is in NLRB's Hands After Settlement, Reuters Legal (Apr. 25, 2016), http://www.reuters.com/article/uber-settlement-nlrb-idUSL2N17S0CJ [http://perma.cc/Q6DW-KX5R].
(144.) FedEx Home Delivery v. NLRB, 563 F.3d 492, 498 (D.C. Cir. 2009) (emphasizing the presence of entrepreneurial opportunity in determining whether a worker is an independent contractor). The Obama Board has resisted the D.C. Circuit's interpretation. See FedEx Home Delivery, 361 N.L.R.B. No. 55, at 10, 16 (Sept. 30, 2014) (declining to adopt the D.C. Circuit's holding insofar as it treats entrepreneurial opportunity as the primary inquiry without sufficient regard for all of the common law factors and holding FedEx drivers to be employees). In other circumstances, FedEx has successfully resisted efforts to have its workers covered under the NLRA instead of the Railway Labor Act. See Kevin Bogardus, FedEx Bests UPS in Lobbying Skirmish, The Hill (Feb 2, 2011, 11:24 AM), http://thehill.com/business-a-lobbying/141625-fedex-triumphs-over-ups-in -faa-labor-lobbying-skirmish# [http://perma.cc/2PN7-6283].
(145.) But see sources cited infra notes 211-217 (describing some exceptional organizing campaigns by unions and worker centers).
(146.) Barenberg, supra note 103.
(147.) See, e.g., National Labor Relations (Wagner) Act [section] 9(b).
(148.) For example, the NLRB lacks authority to sanction or punish lawmakers or business-funded antiunion organizations for retaliating against workers for organizing. See Amanda Becker, Legal Challenge to VW Union Election Could Be "Uncharted Territory," Reuters (Feb. 14, 2014), http://uk.reuters.com/article/autos-vw-legal-idUKL2N0LJ1IT20140214 [http:// perma.cc/J8RT-A7KZ] (describing efforts of Tennessee elected officials to dissuade Volkswagen workers from unionizing, including by threatening retaliation).
(149.) The Board's position changed with Browning-Ferris Indus, of California, Inc., 362 N.L.R.B. No. 186, at 2 (Aug. 27, 2015).
(150.) TLI, Inc., 271 N.L.R.B. 798 (1984), overruled by Browning-Ferris, 362 N.L.R.B. No. 186; Laerco Transp., 269 N.L.R.B. 324 (1984), overruled by Browning-Ferris, 362 N.L.R.B. No. 186.
(151.) Browning-Ferris, 362 N.L.R.B. No. 186. For additional analysis, see infra notes 302-317 and accompanying text.
(152.) Browning-Ferris, 362 N.L.R.B. No. 186, at 2, 15 (quoting NLRB v. Browning-Ferris Indus, of Pa., Inc., 691 F.2d 1117,1123 (3d Cir. 1982)).
(153.) Miller & Anderson, Inc., 364 N.L.R.B. No. 39 (July 11, 2016) (overruling H.S. Care, L.L.C., 343 N.L.R.B. 659 (2004)).
(154.) See id. at 6-7 (emphasizing the limits of the Board's holding).
(155.) The formation of a multi-employer bargaining unit must be entirely voluntary; the Board will not approve the creation of such a unit over the objection of any party. Artcraft Displays, Inc., 262 N.L.R.B. 1233 (1982), clarified by, 263 N.L.R.B. 804 (1982); see Barenberg, supra note 103, at 11.
(156.) See sources cited supra note 79.
(157.) National Labor Relations (Wagner) Act [section] 8(b)(4), 29 U.S.C. [section] 158(b)(4) (2012).
(158.) See Int'l Longshoremen's Ass'n v. Allied Int'l, Inc., 456 U.S. 212, 226 (1982); NLRB v. Retail Store Emps. Union, Local 1001, 447 U.S. 607, 616 (1980).
(159.) See, e.g., National Labor Relations (Wagner) Act [section] 8(e) (prohibiting so-called "hot cargo" agreements except in the garment and construction industries); Gimrock Constr., Inc., 344 N.L.R.B. 934 (2005). For further discussion, see Barenberg, supra note 103, at 21. As a result of these restrictions, some successful tactics used by agricultural employees, like the Coalition of Immokalee Workers, are off limits to most private-sector workers.
(160.) See Rosenfeld, supra note 1, at 159-81.
(161.) See Rosenfeld, supra note 1, at 168-73, 180-81; Benjamin I. Sachs, The Unbundled Union: Politics Without Collective Bargaining, 123 Yale L.J. 148,153-54,178-79 (2013).
(162.) See, e.g., Air Line Pilots Ass'n v. O'Neill, 499 U.S. 64, 66 (1991) (applying a duty of fair representation to contract negotiations); Conley v. Gibson, 355 U.S. 41, 46-47 (1957) (holding that the duty of fair representation requires unions to pursue grievances in good faith).
(163.) See Sachs, supra note 161, at 155 (noting the worksite collective-bargaining focus of labor law and proposing an alternative that would bifurcate unions' political function and their economic function, allowing workers at a worksite to form a "political union" instead of a collective bargaining union); cf. Alan Hyde, Economic Labor Law v. Political Labor Relations: Dilemmas for Liberal Legalism, 60 Tex. L. Rev. 1 (1981) (critiquing the effort of labor law to distinguish between the economic and the political functions of unions).
(164.) Vaca v. Sipes, 386 U.S. 171 (1967). The duty runs to non-members who decline to pay full union dues, as well as to dues-paying members.
(165.) For example, the duty of fair representation has played an important role in eliminating discrimination by unions, see Steele v. Louisville & Nashville R.R., 323 U.S. 192 (1944), while the enterprise focus of labor law has helped create well-funded workplace organizations and facilitated workplace voice, see infra Sections III.A, IV.B.
(166.) The nation's history of privately provided health and pension benefits and the two-party political system, with no tradition of a labor party, also help explain, and are in part explained by, the comparatively apolitical orientation of labor unions. See Lichtenstein, supra note 88, at 126, 143-44, 146.
(167.) See id. at 185-86.
(168.) See id. at 187-88.
(169.) See Commc'ns Workers of Am. v. Beck, 487 U.S. 735, 738-42 (1988) (interpreting the NLRA not to allow compulsory payment of the portion of union fees used for matters of public concern); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235-36 (1977) (finding a First Amendment right of public-sector workers not to pay for the portion of union fees used for matters of public concern); Int'l Ass'n of Machinists v. Street, 367 U.S. 740, 762 (1961) (reaching the same result under the Railway Labor Act). The Supreme Court recently expanded the rights of objecting workers by prohibiting unions from collecting funds even for collective bargaining purposes from "quasi" public employees. Harris v. Quinn, 134 S. Ct. 2618, 2644 (2014). The Court was widely expected to extend Harris's holding to all public sector employees in Friedrichs v. California Teachers Ass'n, but instead, after the death of Justice Scalia, the Court divided evenly on the question and existing precedent stands. 136 S. Ct. 1083 (2016).
(170.) Cf. Street, 367 U.S. at 801 (Frankfurter, J., dissenting) (arguing that "what is loosely called political activity of American trade unions ... [is] activity indissolubly relating to the immediate economic and social concerns that are the raison d'etre of unions").
(171.) Benjamin I. Sachs, Unions, Corporations, and Political Opt-Out Rights After Citizens United, 112 COLUM. L. Rev. 800, 802-03 (2012) (objecting to the asymmetry).
(172.) Wachter, supra note 53, at 598, 606; see also supra notes 52-56, 66-69 and accompanying text.
(173.) See Steven J. Silvia, Holding the Shop Together 38-41 (2013) (discussing the involvement of German trade unions in managing all important aspects of the welfare state); Clyde W. Summers, Worker Participation in the U.S. and West Germany: A Comparative Study from an American Perspective, 28 Am. J. Comp. L. 367, 385-88 (1980) (critiquing both American and German unions for obstructing union member participation in union decision making but concluding that American unions are comparatively more democratic).
(174.) Thelen, supra note 24, at 58.
(175.) Id. at 65-67.
(176.) Id. at 67.
(177.) Franz Traxler & Martin Behrens, Collective Bargaining Coverage and Extension Procedures, EurWORK (Dec. 17, 2002), http://www.eurofound.europa.eu /observatories/eurwork/comparative-information/collective-bargaining-coverage-and-extension-procedures [http://perma.cc/2PWM-4HHP]; see also Silvia, supra note 173, at 27-28 (discussing the German system of contract extension and its limitations).
(178.) Eastex, Inc. v. NLRB, 437 U.S. 556 (1978); see also Memorandum from Ronald Meisburg, Gen. Counsel, NLRB to All Reg'l Dirs., Officers-in-Charge, and Resident Officers, Memorandum GC 08-10 (July 22, 2008) [hereinafter Memorandum from Ronald Meisburg] (providing guidelines for how to handle unfair labor practice charges involving political activity arising out of immigration rallies). As discussed previously, however, penalties for violations of section 7 are minimal, and the law imposes a host of restrictions on the kinds of concerted activity in which workers can engage. See supra notes 120-125 and accompanying text.
(179.) See Citizens United v. FEC, 558 U.S. 310 (2010) (declaring unconstitutional restrictions on independent corporate and union political expenditures).
(180.) But see James J. Brudney, Collateral Conflict: Employer Claims of RICO Extortion Against Union Comprehensive Campaigns, 83 S. Cal. L. Rev. 731 (2010) (describing how unions' ability to pressure employers to enter organizing framework agreements through the use of political pressure has been somewhat chilled by RICO suits brought by employers).
(181.) See Rosenfeld, supra note 1, at 170-73; Sachs, supra note 161, at 152, 168-71 (describing some successful political efforts of unions).
(182.) See Rosenfeld, supra note 1, at 159-81; Sachs, supra note 161, at 152-54.
(183.) See, e.g., Lichtenstein, supra note 88, at 58-59, 76-85, 262-64. But see Alice Kessler-Harris, In Pursuit of Equity 17-18,100-11, 141-43, 171-77 (2001) (detailing how a deeply embedded set of gender beliefs shaped even seemingly neutral social legislation to limit the freedom and equality of women).
(184.) See LICHTENSTEIN, supra note 88, at 186 (describing the structure of unions and its relationship to their political activity); Kate Andrias, Separations of Wealth: Inequality and the Erosion of Checks and Balances, 18 J. CONST. L. 419, 436-56 (2015) (summarizing research on government's responsiveness to the wealthy's interests); Sachs, supra note 161, at 153-54 (emphasizing how the decline in union membership reduces workers' influence in politics).
(185.) Brudney, supra note 116, at 1570. For an account of how the division between labor law and employment law breaks down, see Estlund, supra note 118, at 329; and Sachs, supra note 20, at 2688-89.
(186.) See, e.g., Age Discrimination in Employment Act, 29 U.S.C. [section][section] 621-34 (2012); Civil Rights Act of 1964, 42 U.S.C. [section][section] 2000e to 2000e-17 (2012); Americans with Disabilities Act, 42 U.S.C. [section][section] 12101-12213 (2012).
(187.) Fair Labor Standards Act of 1938, 29 U.S.C. [section][section] 201-219 (2012); Occupational Safety and health Act of 1970, 29 U.S.C. [section][section] 651-678 (2012); Family Medical Leave Act of 1993, 29 U.S.C. [section] 2601 (2012).
(188.) For one synthesis of employment law, see Samuel R. Bagenstos, Employment Law and Social Equality, 112 Mich. L. Rev. 225 (2013).
(189.) See Sachs, supra note 20, at 2688.
(190.) As one treatise declared in 1994, "a mere thirty years ago, there was no such thing as employment law." Rothstein et al., Employment Law, at al., (1994); see also Estlund, supra note 29, at 52-74 (describing the fall of collective bargaining and the proliferation of substantive mandates); St. Antoine, supra note 20, at 526-27 (explaining, in 2004, that the preceding "two decades have continued the shift of emphasis from labor law to employment law" and expressing regret at the diminishment of "private initiative and the voluntary arrangements that have made collective bargaining such a uniquely valuable American institution").
(191.) See Nancy MacLean, Freedom Is Not Enough: The Opening of the American Workplace 67-113 (2006) (tracing the struggle to pass and implement Title VII and analyzing the statute's impact).
(192.) See Bagenstos, supra note 188, at 230 & nn.18-21, 231 nn.22-24 (arguing that social equality is the normative justification for employment law and collecting similar arguments for labor law). Indeed, employment law and labor law were not always treated as distinctly as they are today. For example, a leading labor law casebook published in 1968 identified the wide range of new social legislation and the 1964 Civil Rights Act as areas of increasing interest and significance to labor relations law, without positing them as in conflict with the NLRA. See Russell A. Smith et al., Labor Relations Law: Cases and Materials 53 (4th ed. 1968); see also Morris D. Forkosch, A Treatise on Labor Law 2-4, 18-22, 513-16 (2d ed. 1965) (arguing that economic and social security is the key to labor law and treating minimum standards legislation as well as collective bargaining law as part of the subject).
(193.) See generally Sachs, supra note 20, at 2687-93 (showing how the Fair Labor Standards Act and Title VII can provide a legal architecture to facilitate organizational and collective activity).
(194.) For leading accounts of the tension between collective and individual rights, see, for example, Lichtenstein, supra note 88, at 141,171; Brudney, supra note 116; Cynthia Estlund, Rebuilding the Law of the Workplace in an Era of Self-Regulation, 105 COLUM. L. Rev. 319 (2005); Reuel E. Schiller, From Group Rights to Individual Liberties: Post-War Law, Liberalism, and the Waning of Union Strength, 20 Berkeley J. Emp. & Lab. L. 1, 4 (1999); and Katherine Van Wezel Stone, The Legacy of Industrial Pluralism: The Tension Between Individual Employment Rights and the New Deal Collective Bargaining System, 59 U. Chi. L. Rev. 575 (1992).
(195.) See Daryl J. Levinson, Rights and Votes, 121 Yale L.J. 1286, 1319 (2012).
(196.) LICHTENSTEIN, supra note 88, at x (arguing that as the concept of rights became "a near hegemonic way of evaluating the quality of American citizenship," the concept of solidarity "atrophied"); see also id. at 171 ("By advocating state protection as opposed to collective action, liberals implicitly endorsed the idea, long associated with antiunion conservatism, that the labor movement could not be trusted to protect the individual rights of its members."); Reuel Schiller, Forging Rivals: Race, Class, Law and the Collapse of Post War Liberalism 3, 5, 12 (2015) (arguing that labor law and fair employment law contradicted one another in ways that helped facilitate the demise of liberalism). Other historians trace the conflict between individual rights and collectivism to an earlier point. See WILLIAM J. Novak, The People's Welfare: Law and Regulation in Nineteenth Century America 244 (1996) (describing the American political philosophy that emerged after the Civil War as one emphasizing "individual freedoms and personal autonomy rather than the duties incumbent upon members of organized and regulated communities" and "the common good").
(197.) See Lee, supra note 84, at 5-6, 73-75 (describing how the national right-to-work movement sought to align itself with the civil rights movement).
(198.) See Stone, supra note 194, at 577-78, 593-605.
(199.) For a contrary perspective, see Charles Fried, Individual and Collective Rights in Work Relations: Reflections on the Current State of Labor Law and Its Prospects, 51 U. Chi. L. Rev. 1012, 1040 (1984) (arguing that employment law better serves workers than labor law).
(200.) See Annette Bernhardt et al., Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America's Cities 50 (2009); Kim Bobo, Wage Theft in America: Why Millions of Working Americans Are Not Getting Paid-And What We Can Do About It 6-22 (rev. ed. 2011); Weil, supra note 10, at 214-22.
(201.) See Weil, supra note 10, at 190-201.
(202.) See Alexander J.S. Colvin, Mandatory Arbitration and Inequality of Justice in Employment, 35 Berkeley J. Emp. & Lab. L. 71 (2014); Judith Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale L.J. 2804 (2015); see also Rachel Arnow-Richman, Cubewrap Contracts: The Rise of Delayed Term, Standard Form Employment Agreements, 49 Ariz. L. Rev. 637 (2007) (describing employer-imposed arbitration and noncompete agreements, both of which require the employee to give up critical background rights to the advantage of the employer).
(203.) See Rachel Arnow-Richman, Just Notice: Re-Reforming Employment at Will, 58 UCLA L. Rev. 1, 4 n.9, 5 n.10, 8 (2010) (noting that employment at will remains the default regime in all states but Montana and collecting scholarship critiquing the at-will rule); Cynthia L. Estlund, How Wrong Are Employees About Their Rights, and Why Does It Matter?, 77 N.Y.U. L. Rev. 6, 8 (2002) ("[Ajbsent a contractual provision for job security or a prohibited discriminatory or retaliatory motive, it remains true in every American jurisdiction, except Montana, that employees are subject to discharge without justification.").
(204.) See Cong. Budget Office, Pub. No. 4856, The Effects of a Minimum Wage Increase on Employment and Family Income 11 (2014); Kathryn J. Edin & H. Luke Shaefer, $2.00 a Day: Living on Almost Nothing in America (2015); David Cooper, The Minimum Wage Used To Be Enough To Keep Workers out of Poverty--It's Not Anymore, Econ. Pol'y Inst. (Dec. 4, 2013), http://www.epi.org/publication/minimum-wage-workers-poverty -anymore-raising [http://perma.cc/MT9L-ZVFR].
(205.) Lichtenstein, supra note 88, at 12-16; Mishel et al., supra note 104, at 4 fig.2,7 fig.5.
(206.) See Barry T. Hirsch & David A. Macpherson, Union Membership and Coverage Database from the Current Population Survey: Note, 56 Indus. & Lab. Rel. Rev. 349,352 tbl.1 (2003).
(207.) See Steven Greenhouse, Man in the News: John Joseph Sweeney; New Fire for Labor, N.Y. Times (Oct. 26, 1995), http://www.nytimes.com/1995/10/26/us/man-in-the-news -john-joseph-sweeney-new-fire-for-labor.html [http://perma.cc/X4BS-SQ55].
(208.) Vanessa Tait, Poor Workers' Unions: Rebuilding Labor from Below 192 (2005).
(209.) See supra notes 127-129 and accompanying text.
(210.) See Sachs, supra note 127 (describing "tripartite lawmaking" strategies); Sachs, supra note 14, at 376 (locating labor law's "new dynamism" in private agreements, state government action, and reliance on employment law).
(211.) See James J. Brudney, Neutrality Agreements and Card Check Recognition: Prospects for Changing Paradigms, 90 IOWA L. Rev. 819, 837-38 (2005) (describing the increased use of quasi-private, contractually based "neutrality" agreements that establish a set of ground rules for union recognition and usually a private mode of dispute resolution in place of, or in addition to, the rules and machinery of the NLRA); Cesar F. Rosado Marzan, Organizing with International Framework Agreements: An Exploratory Study, 4 U.C. Irvine L. Rev. 725, 770-71 (2014) (examining the use of privately negotiated "International Framework Agreements" that commit employers to neutrality concerning unionization across multiple countries). Unions' ability to pressure employers to enter neutrality agreements has been chilled somewhat by employers' use of RICO suits. See Brudney, supra note 180.
(212.) See Sachs, supra note 127, at 1155-57.
(213.) See, e.g., Linda Delp & Katie Quan, Homecare Worker Organizing in California: An Analysis of a Successful Strategy, 27 Lab. Stud. J. 1, 6 (2002).
(214.) See Janice Fine, Worker Centers : Organizing Communities at the Edge op the Dream (2006). For further discussion of the worker-center movement, see, for example, Jennifer Gordon, Suburban Sweatshops: The Fight for Immigrant Rights (2005); and Ruth Milkman, Introduction to Working for Justice: The L.A. Model of Organizing and Advocacy 1 (Ruth Milkman et al. eds., 2010) [hereinafter Working for Justice].
(215.) Fine, supra note 214, at 2, 12, 72-77; Janice Fine, New Forms To Settle Old Scores: Updating the Worker Centre Story in the United States, 66 Indus. Rel. 604, 606-09 (2011). In 1985, there were five organizations identifying as worker centers; by 2014 there were more than 200. Kati L. Griffith, Worker Centers and Labor Law Protections: Why Aren't They Having Their Cake?, 36 Berkeley J. Emp. & Lab. Law 331, 331 (2015); see also Milkman, supra note 214, at 8-10 (describing the rise of worker centers in Los Angeles).
(216.) Fine, supra note 215, at 606-09. Tactics include systematically filing wage claims against employers who violate the wage and hour laws, picketing employers who violate the law, organizing economic boycotts against particular companies, and passing legislation designed to strengthen labor standards in the lowest wage sectors. Through these mechanisms, worker centers have provided a vehicle for collective voice and leadership development among low-wage immigrant workers. Id.; see also Sachs, supra note 20, at 2687 (documenting how workers centers' use of employment statutes like FLSA and Title VII of the Civil Rights Act of 1964 facilitated their efforts to organize and act collectively).
(217.) Fine, supra note 215, at 609-11. Many worker centers have a focus on internal democracy and leadership development, but they derive most of their funding from foundations, to which they are accountable, rather than from their members. Id. The worker centers that are industry-specific (for example, taxi drivers and domestic workers) have demonstrated more interest in acquiring collective bargaining rights, id. at 623, and in certain geographic locations, worker centers have worked closely with unions, see Milkman, supra note 214, at 2-3.
(218.) Cynthia L. Estlund, The Death of Labor Law?, 2 Ann. Rev. L. & SOC. SCI. 105,117 (2006).
(220.) See, e.g., Benjamin I. Sachs, Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing, 123 Harv. L. Rev. 655, 713-27 (2010) (urging a system of confidential phone and internet voting or continuous in-person and mail ballot voting).
(221.) See Samuel Estreicher, "Easy In, Easy Out": A Future for U.S. Workplace Representation, 98 Minn. L. Rev. 1615, 1615 (2014) (proposing that "every two or three years ... employees ... after an initial minimal required showing of interest, would have an opportunity to vote in a secret ballot whether they wish to continue the union's representation, select another organization, or have no union representation at all"); Michael M. Oswalt, Automatic Elections, 4 U.C. Irvine L. Rev. 801 (2014) (proposing automatically or annually scheduled elections for workers to select bargaining representatives).
(222.) See Richard D. Kahlenberg & Moshe Z. Marvit, Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice (2012).
(223.) See, e.g., Ellen Dannin, Taking Back the Workers' Law: How To Fight the Assault on Labor Rights (2006) (arguing for a long-term litigation campaign to overturn decades of judicial precedent that distorts the NLRA's meaning).
(224.) See Estlund, supra note 118.
(225.) See Catherine L. Fisk & Benjamin I. Sachs, Restoring Equity in Right-To-Work Law, 4 U.C. Irvine L. Rev. 857, 858-59 (2014) (arguing for a reinterpretation of the relationship between federal and state law on the ability of unions to collect money from the employees they represent to defray the cost of services they provide).
(226.) See Charles J. Morris, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace (2005) (urging a reinterpretation of the NLRA that would support the practice of nonexclusive members-only bargaining).
(227.) Crain & Matheny, supra note 42, at 605. In a somewhat more significant departure, Benjamin Sachs has recently argued for "political unions" that would mirror NLRA unions but would engage not in collective bargaining but in political action. See generally Sachs, supra note 161.
(228.) See Marion Crain & John Inazu, Re-Assembling Labor, 2015 U. III. L. Rev. 1791 (arguing that freedom of assembly should be a source of legal protection for labor unions and worker advocacy efforts); Charlotte Garden, Citizens, United and Citizens United: The Future of Labor Speech Rights?, 53 Wm. & MARY L. Rev. 1 (2011) (arguing that recent First Amendment doctrine in the campaign finance context calls into question the validity of cases limiting protections for labor speech); Charlotte Garden, Labor Values Are First Amendment Values: Why Union Comprehensive Campaigns Are Protected Speech, 79 Fordham L. Rev. 2617, 2617 (2011) (arguing that "labor speech--which plays a unique role in civil society--should be on equal footing with civil rights speech").
(229.) Estlund, supra note 29, at 77-128.
(230.) James J. Brudney, Envisioning Enforcement of Freedom of Association Standards in Corporate Codes: A Journey for Sinbad or Sisyphus?, 33 Comp. Lab. & Pol'y J. 555, 555-56, 598 (2012).
(231.) See Ian Ayres & John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992); Estlund, supra note 29; see also Paul C. Weiler, Governing the Workplace: The Future of Labor and Employment Law 218-24 (1990) (calling for expansion of nonunion forms of worker participation); Estlund, supra note 194, at 319, 324 (arguing for a hybrid model of "monitored self-regulation"); Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 Minn. L. Rev. 342 (2004) (documenting and applauding the turn toward new governance).
(232.) Estlund, supra note 29; Cynthia Estlund, Just the Facts: The Case for Workplace Transparency, 63 Stan. L. Rev. 351 (2011) (arguing for mandatory information disclosure to improve employers' compliance with statutory minimums; to make more efficient the operation of labor markets; and to strengthen the factual foundation for the reputational rewards and sanctions). Allowing employer-established worker committees would require a change to section 8(a)(2) of the NLRA or its interpretation. See Electromation Inc., 309 N.L.R.B. 990 (1992), enforced, 35 F.3d 1148, 1161 (7th Cir. 1994) (holding that employer's decision to establish "action committees" violated section 8(a)(2)'s prohibition on an employer dominating or interfering "with the formation or administration of any labor organization"). For some tentative thoughts on how new forms of workplace organization could serve as vehicles for worker voice, in a system that also includes social bargaining, see infra Section IV.B.3.
(233.) See Brudney, supra note 38.
(234.) Weil, supra note 10, at 262-64; Brudney, supra note 230, at 567-74.
(235.) Brudney, supra note 230, at 567-74.
(236.) Id. at 573.
(237.) For the most famous of the many recent accounts of the rise in inequality, see Piketty, supra note 5.
(238.) Unions now represent about seven percent of the private-sector workforce. Bureau of Labor Statistics, supra note 2.
(239.) GlLENS, supra note 6; Phillips-Fein, supra note 70; Hacker & Pierson, supra note 3.
(240.) For example, several states have undertaken to limit collective rights of workers and to prevent organized labor from requiring fair share fees. See, e.g., Monica Davey, Unions Suffer Latest Defeat in Midwest with Signing of Wisconsin Measure, N.Y. Times (Mar. 9, 2015), http://www.nytimes.com/2015/03/10/us/gov-scott-walker-of-wisconsin-signs-right -to-work-bill.html [http://perma.cc/DQ7B-62SA]; see also supra notes 127-129 and accompanying text.
(241.) Gupta, supra note 22; see also Oswalt, supra note 42, at 622-26 (describing the origins of the fast-food movement); William Finnegan, Dignity, New Yorker (Sept. 15, 2014), http://www.newyorker.com/magazine/2014/09/15/dignity-4 [http://perma.cc /TB7H-EN3A] (describing the fast-food movement from an individual worker's perspective).
(242.) Gupta, supra note 22.
(245.) Steven Greenhouse, With Day of Protests, Fast Food Workers Seek More Pay, N.Y. Times (Nov. 29, 2012), http://www.nytimes.com/2012/u/30/nyregion/fast-food-workers-in-new -york-city-rally-for-higher-wages.html [http://perma.cc/X8J7-59R9]; Josh Eidelson, In Rare Strike, NYC Fast-Food Workers Walk Out, SALON (Nov. 29, 2012), http://www .salon.com/2012/11/29/in_rare_strike_nyc_fast_food_workers_walk_out [http://perma.cc /5BWG-4JW6].
(246.) Steven Greenhouse, How To Get Low-Wage Workers into the Middle Class, Atlantic (Aug. 19, 2015), http://www.theatlantic.com/business/archive/2015/08/fifteen-dollars -minimum-wage/401540/ [http://perma.cc/UK3A-QNG6].
(247.) Brown, supra note 21; Steven Greenhouse, Strong Voice in 'Fight for if Fast-Food Wage Campaign, N.Y. TIMES (Dec. 4 2014), http://www.nytimes.com/2014/12/05/business /in-fast-food-workers-fight-for-15-an-hour-a-strong-voice-in-terrance-wise.html [http:// perma.cc/H74T -E7JQ].
(248.) See, e.g., Leslie Patton, McDonald's Workers Arrested at Protest near Headquarters, Bloomberg (May 22, 2014), http://www.bloomberg.com/news/articles/2014-05-21/mcdonald-s -tells-employees-to-stay-home-as-protests-loom [http://perma.cc/QE6E-A3TG].
(249.) Oswalt, supra note 42, at 623.
(250.) Erika Eichelberger, How Those Fast-Food Strikes Got Started, MOTHER Jones (Dec. 5, 2013), http://www.motherjones.com/politics/2013/12/how-fast-food-strikes-started [http://perma.cc/HM2X-2XZA]. For an excellent analysis of the legality of the strikes, see Oswalt, supra note 42.
(251.) DePillis, supra note 22.
(252.) Id.; see also Greenhouse, supra note 247.
(253.) Steven Greenhouse, Movement To Increase McDonald's Minimum Wage Broadens Its Tactics, N.Y. Times (Mar. 30, 2015) (emphasis added), http://www.nytimes.com /2015/03/31/business/movement-to-increase-mcdonalds-minimum-wage-broadens-its-tactics.html [http://perma.cc/468W-XM8F].
(254.) Id. The movement has worked closely with Black Lives Matter; there is considerable overlap among participants in certain cities. See, e.g., JP Massar, Black Lives Matter Joins Fight for $15 Today in the Bay Area, Daily Kos (Nov. 10, 2015), http://www.dailykos.com/story/2015/11/10 /1448366/-Black-Lives-Matter-Joins-Fight-for-15-Today-in-the-Bay-Area [http://perma.cc /6FUQ-42SK]; The #Fightfong and the Black Lives Matter Movement March Together, Fight for $15, http://fightfor15.org/apri114/main/the-fight-for-15-and-the-black -lives-matter-movement-march-together [http://perma.cc/DQgX-UBEV].
(255.) Notably, at SEIU's subsequent convention, following a decision of fast-food workers to formally join SEIU, the union adopted as a key pillar of its work, a commitment "to end anti-Black racism because everybody deserves the opportunity to participate, prosper and reach their full potential." Tyler Downey, We Won't Have Economic Justice Without Racial Justice, SEIU Healthcare Can., http://www.seiu.org/blog/2016/5/we-wont-have-economic -justice-without-racial-justice [http://perma.cc/7L6A-MSED]; see also Call to Action, SEIU, http://seiu2001.org/2016/06/28/seiu-international-convention [http://perma.cc/MU9T -LQYJ].
(256.) Noam Scheiber, In Test for Unions and Politicians, a Nationwide Protest on Pay, N.Y. Times (Apr. 15, 2015), http://www.nytimes.com/2015/04/16/business/economy/in -test-for-unions-and-politicians-a-nationwide-protest-on-pay.html [http://perma.cc/DN78 -MXHF].
(257.) See, e.g., Justin Miller, The Fight for 15 Descends on the GOP Debate, Am. Prospect (Jan. 29, 2016), http://prospect.org/article/fight-15-descends-gop-debate [http://perma.cc /37RK-YWCK].
(258.) See, e.g., Daniel Moore, Fight for $15 Demonstration Attracts Hundreds from Pitt, Worker Unions, Pittsburg Post-Gazette (Feb. 26, 2016), http://www.post -gazette.com/local/city/2016/02/26/Fight-for-15-draws-hundreds-of-demonstrators-in-Oak land/stories/201602270028 [http://perma.cc/59WD-UGR7] (describing involvement by the students, staff, and faculty at the University of Pittsburgh).
(259.) See, e.g., Khorri Atkinson, Walmart Workers Lend Voices to Fight for $15, MSNBC (Nov. 13, 2015), http://www.msnbc.com/msnbc/walmart-workers-lend-voices-fight-15 [http:// perma.ee/KPU2-FIG4U] (describing OUR Walmart's involvement with the movement); Dave Kreisman, Cab Drivers Among Thousands "Fighting for 15," Am. Fed'n St., County & Municipal Employees (Apr. 16, 2015), http://www.afscme.org/blog/cab-drivers-among -thousands-fighting-for-15 [http://perma.cc/MQG3-FTRS] (describing the involvement of AFSCME Cab Driver organization); Why the Fight for $15 Is Our Fight, Too, Comm. WORKERS OF Am. (Nov. 12, 2015), http://www.cwa-union.org/news/entry/why _the_fight_for_15_is_our_fight_too [http://perma.cc/Z49Y-78D9] (describing the involvement of the CWA with Fight for $15 demonstrations).
(260.) Telephone Interview with Judy Scott, Gen. Counsel, SEIU (Apr. 10, 2016). On the relationship between social movements and social media, see generally VICTORIA Carty, Wired and Mobilizing: Social Movements, New Technology, and Electoral Politics (2011).
(261.) How To Go on a One-Day Strike, Fight for $15, http://fightfor15.org/for-workers [http:// perma.cc/G5VX-EZAZ].
(262.) Oswalt, supra note 42, at 626.
(263.) Extrinsic factors, like the end of the economic slowdown and the decrease in unemployment, also help explain the success of $15 an hour statutes in various cities.
(264.) McGeehan, supra note 21; see also sources cited supra note 16 (detailing new laws).
(265.) Brown, supra note 21.
(266.) Jillian Jorgensen, De Blasio Calls for Higher NYC Minimum Wage than Cuomo Proposal, Observer (Feb. 3, 2015), http://observer.com/2015/02/de-blasio-calls-for-higher-nyc -minimum-wage-than-cuomo-proposal [http://perma.cc/J2ZA-HCXF].
(267.) For a history of minimum wage organizing in Seattle, see Rolf, The Fight for Fifteen, supra note 32, at 97-164.
(268.) Harold Meyerson, Seattle's $15 Minimum Wage Agreement: Collective Bargaining Reborn?, Am. Prospect (May 7, 2014), http://prospect.org/article/seattles-15-minimum-wage -agreement-collective-bargaining-reborn [http://perma.cc/G772-Z3SH].
(269.) Marianne Levine & Timothy Noah, Minimum Wage Hikes Win, Politico (Nov. 5, 2014), http://www.politico.com/story/2014/11/minimum-wage-increase-wins-in-four -red-states-112565 [http://perma.cc/73HT-3G82]; Seth Freed Wessler, Minimum Wage Hikes: Where Voters Gave Themselves a Raise, NBC News (Nov. 5, 2014), http://www.nbcnews.com/feature/in-plain-sight/minimum-wage-hikes-where -voters-gave-themselves-raise-n241616 [http://perma.cc/M56Z-23LW]. On November 4, 2014, voters in South Dakota approved a ballot initiative that increased the minimum wage from $7.25 per hour to $8.50 per hour beginning January 1, 2015. The measure also guarantees an increase in the minimum wage each year after to account for inflation and sets tipped employees' wages at half that of the minimum wage. South Dakota Increased Minimum Wage, Initiated Measure 18 (2014), BALLOTPEDIA, http://ballotpedia.org/South_Dakota_Increased _Minimum_Wage,_Initiated_Measure_18_(2014) [http://perma.cc/YU9W-HEEZ].
(270.) See Wessler, supra note 269 (observing that "[e]ven as Republicans gained control of the U.S. Senate and Republican governors comfortably won elections in Arkansas, Nebraska and South Dakota, significant majorities of voters in these states threw their weight behind the wage hikes").
(271.) Tiffany Camhi, Oakland Minimum Wage Increases by 36 Percent Monday, KQED News (Mar. 2, 2015), http://ww2.kqed.org/news/2015/03/02/oakland-minimum-wage-measure -ff [http://perma.cc/A5WJ-2EBD]; Ben Rooney, San Francisco Votes in $15 Minimum Wage, CNN Money (Nov. 5, 2014), http://money.cnn.com/2014/11/05/news/san-francisco -increased-minimum-wage [http://perma.cc/866C-ZXJG].
(272.) Alison Griswold, Facebook Is Raising Wages for Contractors to $15 an Hour, Slate (May 15, 2015), http://www.slate.com/blogs/moneybox/2015/05/15/facebook_increases_contractor_wages_to_15_an_hour.html [http://perma.cc/B9LF-WJX6]; Sruthi Ramakrishnan, Wal-Mart To Raise Wages for 100,000 U.S. Workers in Some Departments, REUTERS (June 2, 2015), http://www.reuters.com/article/wal-mart-stores
-wages-idUSL3NoY042Q20150602 [http://perma.cc/S865-2JDW]; Samantha Sharf, McDonalds To Raise Wages: Will It Be Enough To Please Employees, Shareholders?, FORBES (Apr. 1, 2015), http://www.forbes.com/sites/samanthasharf/2015/04/01/mcdonalds-to -raise-wages-will-it-be-enough-to-please-employees-shareholders [http://perma.cc/H3QM -UL5D].
(273.) David Klepper & Deepti Hajela, Fast Food Workers Celebrate Plan for $15 Wage in New York, News 12 Westchester (July 23, 2015), http://westchester.news12.com/fast -food-workers-celebrate-plan-for-15-wage-in-new-york-1.10669526 [http://perma.cc/S2FK -AWDH]; Patrick McGeehan, New York Plans $15-an-Hour Minimum Wage for Fast Food Workers, N.Y. Times (July 22, 2015), http://www.nytimes.com/2015/07/23/nyregion/new -york-minimum-wage-fast-food-workers.html [http://perma.cc/VDX9-6FV2].
(274.) Ian Lovett, University of California System Set To Raise Minimum Wage to $15 an Hour, N.Y. Times (July 22, 2015), http://www.nytimes.com/2015/07/23/us/university-0f -california-system-set-to-raise-minimum-wage-to-dollar15-an-hour.html [http://perma.cc /785R-PCV3].
(275.) Steven Greenhouse, How the $15 Minimum Wage Went from Laughable to Viable, N.Y. Times (Apr. 1, 2016), http://www.nytimes.com/2016/04/03/sunday-review/how-the -15-minimum-wage-went-from-laughable-to-viable.html [http://perma.cc/Q58V-HHBB] (discussing the New York and California plans to raise wages to $15 an hour); Kristena Hansen, Oregon Lawmakers Approve Landmark Minimum Wage Increase, Associated Press (Feb. 19, 2016), http://www.bigstory.ap.org/article/d5e9bb6d3e4a47a b84098fdbef5f55f2/oregon-lawmakers-approve-landmark-minimum-wage-increase [http:// perma.cc/W6MT-DXGK] (describing the Oregon plan, which imposes a series of gradual increases, such that, by 2022, the state's current $9.25-an-hour minimum will increase to $14.75 in Portland, $13.50 in smaller cities, and $12.50 in rural areas).
(276.) Aaron C. Davis, D.C. Lawmakers Approve $15 Minimum Wage, Joining N.Y., Calif, WASH. POST (June 7, 2016), http://www.washingtonpost.com/local/ dc-politics/deal-reached-for-15-minimum-wage-in-dc-unions-say/2016/06/07/cff3dd66-2C2a -11e6-9de3-6e6e7a14000c_story.html [http://perma.ee/95XP-XD65] (describing Washington, D.C.'s minimum wage hike).
(277.) See Charlotte Alter & Zeke Miller, Obama Supports $10 Minimum Wage, Time (Nov. 7, 2013), http://nation.time.com/2013/n/07/Obama-supports-10-minimum -wage [http://perma.cc/3L98-G7AR] (describing Democratic support for a $10 hourly wage in 2013).
(278.) See, e.g., Mara Liasson, Shifting Stance, Some GOP Candidates Back State Minimum Wage Hikes, NPR (Sept. 24, 2014), http://www.npr.0rg/2014/09/24/351246893/subtle-sea -change-on-minimum-wage-as-gop-candidates-back-state-hikes [http://perma.cc/W4MJ -XYG7] (noting that "[a]s free-market conservatives, Republicans are philosophically opposed to raising the minimum wage").
(279.) See Greenhouse, supra note 275.
(280.) See Ned Resnikoff, How Low-Wage Strikes Helped Change the Conversation in Washington, MSNBC (Dec. 7, 2013), http://www.msnbc.com/all-2 [http://perma.cc/D5YK-AWVS]. In his 2013 State of the Union Address, President Obama proposed a modest increase in the minimum wage. President Barack Obama, Remarks by the President in the State of the Union Address (Feb. 12, 2013), http://www.whitehouse.gov/the-press-office/2013/02/12 /remarks-president-state-union-address [http://perma.cc/S93Z-EL3T]. In December of the same year, the President described income inequality as the "defining challenge of our time" and called for legislation that would raise the federal minimum wage to $10.10, more than the $9.00 he originally suggested. Paul Lewis, Obama Throws Support to Minimum Wage Movement in Economy Speech, GUARDIAN (Dec. 4, 2013), http://www.theguardian.com/world/2013/dec/04/obama-support-minimum-wage -inequality-speech [http ://perma.cc/AH7X-VX9L].
(281.) Editorial, New Minimum Wages in the New Year, N.Y. Times (Dec. 26, 2015), http://www.nytimes.com/2015/12/27/opinion/sunday/new-minimum-wages-in-the -new-year.html [http://perma.cc/W7HE-VB8Z] (arguing that "[s]ooner or later, Congress has to set an adequate wage floor for the nation as a whole" and that "the new minimum should be $15").
(282.) See Kristin East & Daniel Strauss, Sanders Claims Victory on $15 Minimum Wage in Party Platform, but Is Defeated on TPP, POLITICO (July 9, 2016), http://www.politico.com/story/2016/07/bernie-sanders-minimum-wage-party -platform-225325 [http://perma.cc/B7DL-BSVY].
(283.) See, e.g., Wesley Lowery, Senate Republicans Block Minimum Wage Increase Bill, Wash. Post (Apr. 30, 2014), http://www.washingtonpost.com/news/post-politics/wp/2014/04 /30/senate-republicans-block-minimum-wage-increase-bill [http://perma.cc/GCF4-H3LN] (noting the bill's unclear path to approval given Republican obstruction).
(284.) See Exec. Order No. 13,658, 79 Fed. Reg. 9,851 (Feb. 12, 2014); Mike DeBonis, National Push for $15 Minimum Wage Hits Home for U.S. Senate Workers, Wash. Post (July 21, 2015), http://www.washingtonpost.com/politics/national-push-for-15-minimum -Wage-hits-home-for-us-senate-workers/2015/07/21/54dd7e14-2fco-11e5-8f36-18d1d501920d _story.html [http://perma.cc/XCM2-6C7Q]; Sam Frizell, Bernie Sanders Joins Striking Government Workers Ahead of Pope's Visit, Time (Sept. 22, 2015), http://time.com/4044632/bernie-sanders-pope-francis-strike [http://perma.cc /LH3N-DWQM]; Good Jobs Nation, http://goodjobsnation.org [http://perma.cc/4P26 -S4XB].
(285.) Proponents included organizations such as the Economic Policy Institute and the National Employment Law Project. See Noam Scheiber, White House Increases Overtime Eligibility by Millions, N.Y. Times (May 17, 2016), http://www.nytimes.com/2016/05 /18/business/white-house-increases-overtime-eligibility-by-millions.html [http://perma.cc /T7R2-Z6JH]; Rachel Gillett, Experts Weigh In on How Obama's Overtime Rule Change Could Benefit Millions of Workers and Employers, Bus. Insider (July 1 2015), http://www.business insider.com/what-new-overtime-law-means-for-everyone-2015-6 [http://perma.cc/9AVM -9Y3T].
(286.) See Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 29 C.F.R. [section] 541 (2016); Scheiber, supra note 285.
(287.) See, e.g., Hector Figueroa, Paid Sick Days Legislation a Victory for People of Color and Working New Yorkers, 32BJ SEIU, http://www.seiu32bj.org/blogs/paid-sick-days-legislation-a -victory-for-people-of-color-and-working-new-yorkers [http://perma.cc/KM3V-SZUK]; Eli Magana, Finally! $15 an Hour and Paid Sick Leave for IHSS Providers, AFSCME (Mar. 29, 2016), http://www.afscme.org/blog/finally-15-an-hour-and-paid-sick-leave-for-ihss -providers [http://perma.cc/69SN-USKS].
(288.) See State and Local Action on Paid Sick Days, Nat'l Partnership for Women & Families 1 (July 2015), http://www.nationalpartnership.org/research-library/campaigns/psd/state -and-local-action-paid-sick-days.pdf [http://perma.cc/3TJN-S9DV].
(289.) See Establishing Paid Sick Leave for Federal Contractors, 81 Fed. Reg. 9592, 9592 (proposed Feb. 25, 2016) (to be codified at 29 C.F.R. pt. 13).
(290.) See Ann Belser, Irregular Work Schedules: Efficient for Employers, but Tough for Workers, Pittsburgh Post-Gazette (Apr. 26, 2015), http://www.post-gazette.com/business /career-workplace/2015/04/20/Irregular-work-schedules-efficient-for-employers-but-tough -for-workers/stories/201504260090 [http://perma.cc/7WF4-RK5Z]; Gillian B. White, The Very Real Hardship of Unpredictable Work Schedules, Atlantic (Apr. 15, 2015), http://www.theatlantic.com/business/archive/2015/04/the-very-real-hardship -of-unpredictable-work-schedules/390498 [http://perma.cc/TMA3-FGYK].
(291.) See Steven Greenhouse, A Push To Give Steadier Shifts to Part-Timers, N.Y. Times (July 15, 2014), http://www.nytimes.com/2014/07/16/business/a-push-to-give-steadier -shifts-to-part-timers.html [http://perma.cc/33EX-K7ZM].
(292.) See id.
(293.) See id.
(294.) See Ross Barkan, State Senator Pushing Bill To Regulate Unpredictable Work Schedules, Observer (Apr. 22, 2015), http://Observer.com/2015/04/state-senator-pushing-bill-to -regulate-unpredictable-work-schedules [http://perma.cc/8BYS-W925]; Lisa Jennings, California Lawmakers Introduce 'Fair Scheduling' Bill, Nation's Restaurant News (Feb. 18, 2015), http://nrn.com/government/california-lawmakers-introduce-fair-scheduling-bill [http://perma.cc/D7MJ-7F5Y].
(295.) See Katie Johnston, Bills Seek More Stable Hours for Low-Paid Workers, Bos. Globe (July 20, 2015), http://www.bostonglobe.com/business/2015/07/19/growing -movement-stabilize-work-schedules/VdXNFH3AQQ1D4oxaHuzaIN/story.html [http:// perma.cc/USG4-TF5D] (describing Senator Elizabeth Warren's introduction of a federal bill to "require employers to stabilize schedules, from posting work shifts several weeks in advance to giving additional pay to workers who are on call, or whose shifts are cut or changed on short notice").
(296.) See Rachel Abrams, Gap Says It Will Phase Out On-Call Scheduling of Employees, N.Y. Times (Aug. 26, 2015), http://www.nytimes.com/2015/08/27/business/gap-says-it-will -phase-out-on-call-scheduling-of-employees.html [http://perma.cc/U39M-3VXP]; Krystina Gustafson, On-Call Scheduling Debate: Where Retailers Stand, CNBC (Feb. 4, 2016), http://www.cnbc.com/2016/02/04/0n-call-scheduling-debate-where-retailers -stand.html [http://perma.cc/2GVR-YTHC].
(297.) Brown, supra note 21.
(298.) DePillis, supra note 22.
(299.) Lichtenstein, supra note 42; see also Crain & Matheny, supra note 42, at 563-64, 582 (noting that worker movements are faced with the "vexing challenge of how to leverage worker power to accomplish lasting change"); Oswalt, supra note 42 (characterizing the Fight for $15 and related movements as improvisational).
(300.) See Eidelson, supra note 22.
(301.) DePillis, supra note 22.
(302.) Browning-Ferris Indus, of Cal., Inc., 362 N.L.R.B. No. 186 (Aug. 27, 2015); see Brief of the Service Employees International Union as Amicus Curiae, Browning-Ferris, 362 N.L.R.B. No. 186 (No. 32-RC-109684).
(303.) See Browning-Ferris, 362 N.L.R.B. No. 186, at 2-6.
(304.) Id. at 18-20; see also supra Section I.A.2.
(305.) Under the agreement, many employment responsibilities are shared: both companies employ supervisors and lead workers at the facility. Leadpoint does the hiring, firing, and payroll of its own workers, while BFI exercises control over whom Leadpoint can hire, by setting employment standards and reserving the right to reject any personnel. BFI establishes the facility's work plan, its stream of work, the schedule of working hours, and the number of workers to be assigned to a particular task, while Leadpoint chooses the individual workers. The two companies share in training, though Leadpoint takes the lead. While the contract specifically provides that Leadpoint determines pay rates, it also prevents Leadpoint from paying employees more than comparable BFI employees. Browning-Ferris, 362 N.L.R.B. No. 186, at 18-20.
(306.) Id. at 6.
(307.) Brief of the Service Employees International Union as Amicus Curiae, supra note 302, at 1, 18-20.
(308.) See id. (citing 691 F.2d 1117 (3d Cir. 1982), enforcing 259 N.L.R.B. 148 (1981)). The standard was adopted by the Board in Laerco Transportation & Warehouse, 269 N.L.R.B. 324 (1984).
(309.) 691 F.2d at 1123 (emphasis omitted).
(310.) Brief of the Service Employees International Union as Amicus Curiae, supra note 302, at 18.
(311.) See Brief of the Chamber of Commerce of the United States of America as Amicus Curiae, Browning-Ferris, 362 N.L.R.B. No. 186 (No. 32-RC-109684), http://www .chamberlitigation.com/sites/default/files/cases/files/2014/U.S.%2oChamber%20Amicus%2 oBrief%2o--%2oBrowning%2oFerris%2oIndustries%2oof%2oCalifornia%20%28NLRB%29.pdf [http://perma.cc/7PM9-GQBR]; Brian Mahoney, Rubio Slams "Joint Employer," Politico: Morning Shift (Aug. 21, 2015), http://www.politico.com/tipsheets/morning -shift/2015/08/nlrb-speaks-on-bargaining-units-bellhops-rubio-slams-joint-empIoyer-seius -air-traffic-controllers-moment-019723 [http://perma.cc/YJ8Q-A2T5] (describing remarks by Marco Rubio).
(312.) Brief of the Chamber of Commerce of the United States of America as Amicus Curiae, supra note 311, at 9-10.
(313.) See Browning-Ferris, 362 N.L.R.B. No. 186, at 8 (summarizing the parties' arguments).
(314.) McDonald's USA, LLC v. Fast Food Workers Comm., 363 N.L.R.B. No. 144 (Mar. 17, 2016); see also McDonald's Fact Sheet, Nat'l Lab. Rel. Board, http://www.nlrb.gov/news -outreach/fact-sheets/mcdonalds-fact-sheet [http://perma.cc/2TE3-P9D7].
(315.) McDonald's Fact Sheet, supra note 314. In early August, the NLRB denied McDonald's request for a more detailed explanation of the NLRB's new definition of what it means to be a joint employer or to dismiss the case. Two members of the Board dissented, arguing that McDonald's was being denied due process.
(316.) Browning-Ferris, 362 N.L.R.B. No. 186. The Board criticized the earlier restrictive approach, writing that it "has resulted in findings that an entity is not a joint employer even where it indirectly exercised control that significantly affected employees' terms and conditions of employment" or where it directly exercised control over employees in ways deemed "limited and routine." Id. at 10-11. It noted that millions of American workers work in contingent employment relationships and concluded that, "to the extent permitted by the common law," the statute should be read to "encompass the full range of employment relationships wherein meaningful collective bargaining is, in fact, possible." Id. at 13; see also id. at 21 ("It is not the goal of joint-employer law," the Board concluded, "to guarantee the freedom of employers to insulate themselves from their legal responsibility to workers, while maintaining control of the workplace. Such an approach has no basis in the Act or in federal labor policy."); supra notes 149-152 and accompanying text; infra notes 425-432 and accompanying text.
(317.) Browning-Ferris, 362 N.L.R.B. No. 186, at 15. Essential terms include not only wages and hours, but also the number of workers to be supplied, scheduling, seniority and overtime, work assignments, and the manner and method of work performance. Id. Joint employment may exist when an entity reserves the right to exercise control over such details of work, even if control is not in fact exercised. Joint employment also may exist when an entity controls such terms in a way that is indirect or attenuated. Id.
(318.) See infra notes 425-432 and accompanying text.
(319.) SEIU's successful Justice for Janitors movement of the 1990s employed a similar strategy, focusing on building owners as well as the janitorial contractors who employed the workers. See Catherine L. Fisk et al., Union Representation of Immigrant Janitors in Southern California: Economic and Legal Challenges, in Organizing Immigrants : The Challenge for Unions in Contemporary California 199, 199 (Ruth Milkman ed., 2000). UNITE HERE has used similar tactics in the hospitality industry, as have former UNITE HERE and allied worker centers against garment sweatshops. See Scott L. Cummings, Hemmed in: Legal Mobilization in the Los Angeles Anti-Sweatshop Movement, 30 Berkeley J. Emp. & Lab. L. 1, 17 (2009) (discussing how the anti-sweatshop movement in Los Angeles sought "to make legal responsibility follow economic power by rupturing the legal fiction that protected profitable manufacturers and retailers from the labor abuses committed by their contractors").
(320.) The Fight for $155 efforts to shift responsibility higher up the fissured employment chain has also led it to support organizing efforts of franchisees themselves. On April 30, 2015, SEIU launched a website designed to build a national network of fast -food franchisees that want stronger protections for their businesses against franchisors. Candace Choi, Labor Organizers Seek Unusual Ally in Fast-Food Franchisees, Chi. Trib. (Apr. 30, 2015), http://www.chicagotribune.com/business/ct-fast-food-franchisees-0501 -biz-20150430-story.html [http://perma.cc/U74J-J9V5]. The union has supported legislative efforts of franchise owners designed to protect them from retaliation by brands. For example, a California bill passed by the legislature but vetoed by Governor Brown would have made it harder for franchisors to terminate contracts with franchise owners. Kate Taylor, California Governor Vetoes Bill That Would Expand Franchisee Rights, ENTREPRENEUR (Sept. 30, 2014), http://www.entrepreneur.com/article/237951 [http://perma.cc/D4A8 -3NP6] (describing SEIU's support for the California bill). At the behest of parent companies, Governor Brown vetoed the bill and urged franchise owners and parent companies to come up with a solution both sides could agree on. Jeremy B. White, Gov. Jerry Brown Vetoes Franchise Bill, Sacramento Bee (Sept. 30, 2014), http://www.sacbee.com/news/politics -government/capitol-alert/article2615644.html [http://perma.cc/7L6E-XJ74]. A similar bill was under consideration in Pennsylvania and has been referred to committee. See H.R. 1346, 2014-2015 Leg., Reg. Sess. (Pa. 2015).
(321.) Part IV, infra, discusses possible legal frameworks that could support this broader ambition.
(322.) NW. Univ. & Coll. Athletes Players Ass'n, 362 N.L.R.B. No. 167 (Aug. 17, 2015).
(324.) Id. at 3.
(325.) Id. at 6; see also id. at 3 (explaining that a bargaining unit of a single team's players "would not promote stability in labor relations"). No doubt the novelty of the football players' arguments and the ramifications of intervention for college sports played a role in the Board's decision--indeed, the Board so acknowledged. Id. at 3 ("We emphasize that this case involves novel and unique circumstances.").
(326.) See supra Sections II.A-B.
(327.) Lichtenstein, supra note 88, at 185-86.
(328.) Id. at 186 (noting that although unions supported the enactment of the civil rights bills, Medicare and Medicaid, and OSHA, the 1960s and 1970s "were barren of virtually any legislative or ideological payoff for organized labor as an institution or ... as a social movement with the kind of aura necessary to set the political and social agenda").
(329.) See supra Sections II.A-B.
(330.) See supra note 59 and accompanying text.
(331.) See, e.g., Greenhouse, supra note 247 (quoting an activist's belief that "[t]he way to achieve [the $15 hourly wage] is to get all types of low-wage workers involved"); Ned ResnikofF, Fast Food Convention Portends Escalation in Strikes, MSNBC (July 28, 2014), http://www.msnbc.com/msnbc/fast-food-convention-portends-escalation-strikes [http:// perma.cc/JWA6-LRVM] (noting fast-food convention organizers' openness to more radical methods in response to popular desire for such methods).
(332.) This is labor tripartism in the traditional sense, where unions, the state, and business work together to set wages and other conditions for the labor market. It is distinct from the form of tripartism Benjamin Sachs describes, in which unions use tripartite bargaining to achieve alternate mechanisms to replace the NLRA's process. See generally Sachs, supra note 127 (describing how government actions in areas unrelated to labor but of importance to employers are traded for private agreements between unions and employers that reorder the rules of organizing and bargaining).
(333.) Andrew M. Cuomo, Opinion, Fast Food Workers Deserve a Raise, N.Y. Times (May 6, 2015), http://www.nytimes.com/201s/05/07/Opinion/andrew-m-cuomo-fast-food -workers-deserve-a-raise.html [http://perma.cc/DD3Q-53CZ]. As Cuomo noted, the New York Legislature had rejected his proposal to raise the minimum wage statutorily. Id.
(334.) Id.; N.Y. Lab. Law [section] 654 (McKinney 2016).
(335.) Cuomo, supra note 333. Cuomo noted that the average fast-food CEO earned $23.8 million in 2013, while entry-level fast-food workers earned only $16,920 a year, qualifying many for public assistance. Id.
(336.) Mario J. Musolino, Acting Comm'r of Labor, Determination Regarding Adequacy of Wages, N.Y. Dep't Lab. (May 7, 2015), http://www.governor.ny.gov/sites/governor.ny.gov/files /atoms/files/Determination_wages_050715.pdf [http://perma.ee/8QRV-VYGT].
(337.) N.Y. Lab. Law [section] 655(1) (McKinney 2016) ("A wage board shall be composed of not more than three representatives of employers, an equal number of representatives of employees and an equal number of persons selected from the general public.").
(338.) Fast Food Wage Board, N.Y. Dep't Lab., http://labor.ny.gov/workerprotection /laborstandards/wageboard2015.shtm [http://perma.cc/5JGM-9PTU].
(339.) Fast Food Wage Bd., N.Y. Dep't of Labor, Report of the Fast Food Wage Board to the NYS Commissioner of Labor 10-11 (2015).
(340.) Id. at 11.
(341.) See, e.g., Rick Karlin, New York Fast Food Wage Board Hears Testimony About Potential Mandate of Higher Minimum Wage, Alb. Times Union (June 22,
2015), http://www.timesunion.com/tuplus-local/article/New-York-fast-food-wage-board -hears-testimony-6343045.php [http://perma.cc/7HT2-THSF].
(342.) McGeehan, supra note 273.
(343.) Steven Greenhouse, Fight for $15: The Strategist Going to War to Make McDonald's Pay, The Guardian (Aug. 30, 2015), http://www.theguardian.com/us-news/2015/aug/30/fight -for-15-strategist-mcdonalds-unions [http://perma.cc/WYP5-S7BW].
(344.) Notably, the wage board's wage powers were suspended under the new state-wide law raising the minimum wage to $15. See infra Section IV.B.
(345.) Allen Young, Here's the List of Who's on the Mayor's Minimum Wage Task Force, SACRAMENTO Bus. J. (June 25, 2015, 2:34 PM), http://www.bizjournals.com/sacramento/news/2015/06 /25/heres-the-list-of-whos-on-the-mayors-minimum-wage.html [http://perma.cc/3WEN -C5HK] (describing the Sacramento mayoral task force with representatives from business, labor, and non-profits); Mayor Johnson Convenes Task Force To Make Recommendation on Potential Minimum Wage Increase, City of Sacramento (July 25, 2015), http://www.cityofsacramento.org/City-Manager/Media-Releases/Mayor -convenes-Income-Inequality-Task-Force [http://perma.cc/UDW8-VL9X].
(346.) See Josh Feit, What Do We Want? $15! When Do We Want It? In a Little While!, Seattle Metropolitan (July 30, 2014), http://www.seattlemet.com/articles/2014/7/30/history -of-seattles-minimum-wage-law-august-2014 [http://perma.cc/K28B-WWFB] (describing Seattle's minimum wage fight and the work of the Mayoral Income Inequality Advisory Committee, which included leading business and labor leaders); Kate Martin, Tacoma Mayor Picks Minimum Wage Task Force Members, News Trib. (May 12, 2015), http:// www.thenewstribune.com/news/local/politics-govemment/article26288548.html [http:// perma.cc/QS59-6QGD] (describing the composition of Tacoma's new minimum wage task force, which includes representation from labor, business, grassroots activist groups, and clergy).
(347.) Chicago's new Working Families Task Force has a broad mandate and significant business representation, but minimal representation from unions. See Thomas A. Corfman, Emanuel Takes Step Toward Paid Leave for Sickness, Childbirth, Crain's (June 23, 2015), http://www.chicagobusiness.com/article/20150623/NEWS02/150629968/emanuel -takes-step-toward-paid-leave-for-sickness-childbirth [http://perma.cc/QR4R-JG24].
(348.) See Jana Kasperkevic, Good News: Overtime Pay May Finally Be Coming to a Paycheck near You, Guardian (Mar. 15, 2016), http://www.theguardian.com/busi ness/2016/mar/15/overtime-pay-labor-department-threshold-rule [http://perma.cc/D74Y -MZJL] (reporting that the proposed rule was "a long time coming"). The DOL received over 270,000 comments in response to its notice of proposed rulemaking. Wage & Hour Div., Final Rule: Overtime: Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees under the Fair Labor Standards Act, U.S. Dep't Lab., http://www.dol.gov/whd/overtime/final2016 [http://perma.cc/JF7M -ZFFJ].
(349.) See About CLW, COALITION IMMOKALEE WORKERS (2012), http://www.ciw-online.org/about [http://perma.cc/LZY9-WVXY].
(350.) See Brudney, supra note 38.
(351.) See supra notes 253-259 and accompanying text.
(352.) Eileen Boris & Jennifer Klein, Caring for America: Home Health Workers in the Shadow of the Welfare State (2012); David Bornstein, A Living Wage for Caregivers, N.Y. Times: Opinionator (July to, 2015), http://opinionator.blogs.nytimes.com/2015/07/10 /organizing-for-the-right-to-care/ [http://perma.cc/2L4.M-GJQL].
(353.) See History & Mission, Domestic WORKERS UNITED (Apr. 20, 2016) http://www.domesticworkersunited.org/index.php/en/about [http://perma.cc/Z7T6-ACMZ]. For examples of new laws urged by DWA, see Domestic Workers Bill of Rights, ch. 481, 2010 N.Y. Sess. Laws 1315 (McKinney) (codified at N.Y. Exec. Law [section][section] 292, 296-b (McKinney 2014)); for new federal regulations, see 29 C.F.R. [section] 552 (2015). For a history of this movement, see, for example, Boris & Klein, supra note 352; and Hina Shah & Marci Seville, Domestic Worker Organizing: Building a Contemporary Movement for Dignity and Power, 75 Alb. L. Rev. 413, 413-14 (2012).
(354.) Jacqueline Leavitt & Gary Blasi, The Los Angeles Taxi Worker Alliance, in Working for Justice, supra note 214, at 109-24; see also Fine, supra note 215, at 615 (describing efforts of taxi worker organizations to create a federated structure); Milkman, supra note 214, at 17 (describing taxi workers' efforts as a mix between worker center and union approaches).
(355.) See supra notes 300-301 and accompanying text.
(356.) See infra Section IV.B.1.
(357.) See infra Section IV.B.2.
(358.) See infra Section IV.B.3.
(359.) As previously noted, this Article assumes that realizing greater societal equality, both economic and political, is an important goal of law generally, and of labor law in particular. Accordingly, this Part does not take on critics who object to using labor law as a tool to achieve greater equality or, relatedly, as a tool to augment the political and economic power of workers. It also leaves for another day important design concerns relating to efficiency, union democracy, and industrial peace. See supra note 41 and accompanying text.
(360.) Eric Morath & Alejandro Lazo, Minimum-Wage Waivers for Union Members Stir Standoff, Wall St. J. (Aug. 17, 2015), http://www.wsj.com/articles/minimum-wage-waivers-for -union-members-stir-standoff-1439857915 [http://perma.cc/LQ77-HBEH].
(361.) Peter Jamison et al., L.A. Labor Leaders Seek Minimum Wage Exemption for Firms with Union Workers, L.A. Times (May 27, 2015), http://www.latimes.com/local/lanow/la-me-ln-los -angeles-minimum-wage-1mions-20150526-story.html [http://perma.cc/E9EA-DJ6Z].
(363.) Id. Notably, while some economists believe that an increased minimum wage would result in job loss among low-wage workers, see David Neumark et al., More on Recent Evidence on the Effects of Minimum Wages in the United States, 3 IZA J. Lab. Pol'y 1 (2014) (discussing studies which reach conflicting conclusions about the effects of a minimum wage on job loss), labor leaders have not voiced this concern.
(364.) David Zahniser & Emily Alpert Reyes, Labor Leaders' Credibility Slips in Minimum-Wage Debate, L.A. Times (June 15, 2015), http://www.latimes.com/local/cityhall/la-me-wage -exemption-20150615-story.html [http://perma.cc/GJW6-VUK6].
(365.) Peter Jamison, Why Union Leaders Want L.A. To Give Them a Minimum Wage Loophole, L.A. Times (July 27, 2015), http://www.latimes.com/local/cityhall/la-me-union-exemption -20150726-story.html [http://perma.cc/5AGP-495N].
(366.) Id. ('"Unions in America, obviously we're in decline,' said Dave Regan, president of SEIUUHW, the union that represents home healthcare workers and is leading the campaign for a California ballot measure to raise the statewide minimum wage to $15. T don't think we help ourselves by taking positions where we don't hold ourselves to the same standards as every body else.'"); see also Morath & Lazo, supra note 360 (describing rank-and-file opposition to the exemption).
(367.) See Morath & Lazo, supra note 360 ("Behind the scenes, labor leaders who worked with lawmakers on the provision were divided [on whether to include a waiver for unionized shops], said Pat 'Duke' Dujakovich, president of Greater Kansas City AFL-CIO.").
(368.) Id.; Sean Hackbarth, Where Have Unions Gotten Minimum Wage 'Escape Clauses:", U.S. Chamber Com.: Above the Fold (June 3, 2015), http://www.uschamber.com/above-the -fold/where-have-unions-gotten-minimum-wage-escape-clauses [http://perma.ee/7LTYF -ZFZA].
(369.) See, e.g., Am. Hotel & Lodging Ass'n. v. City of Los Angeles, 119 F. Supp. 3d 1177, 1179 (C.D. Cal. 2015) (denying a motion for a preliminary injunction against a Los Angeles hotel wage statute exempting unionized hotels), aff'd, No. 13-55909, 2016 WL 4437618 (9th Cir. Aug. 23, 2016). In Lodge 76, International Ass'n of Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132 (1976), the Supreme Court held that states may not regulate conduct if it is within a zone of activity that Congress intended to leave open to the free play of economic forces. For further discussion of preemption law, see infra Section IV.A.2.
(370.) Greenhouse, supra note 246. This criticism has abated somewhat with the campaign's success.
(371.) Id. (quoting a former NLRB official for the proposition that "[i]f you want to start organizing, you can start methodically at corporate-owned stores in big cities like New York, Chicago, and L.A.").
(372.) Bob Kastigar, Comment to Emanuel To Launch Task Force on Paid Leave, Worker Issues, Progress III. (Mar. 16, 2015), http://www.progressillinois.com/news/content/2015/03 /16/emanuel-launch-task-force-paid-leave-worker-issues [http://perma.cc/BDD4-UGR3]. These arguments echo the early twentieth century AFL position. See Tait, supra note 208, at 5 (describing the early AFL-CIO strategy of favoring internal, contractual means of resolving disputes).
(373.) See Harold Meyerson, The Seeds of a New Labor Movement, Am. Prospect (Oct. 30, 2014), http://prospect.org/article/labor-crossroads-seeds-new-movement [http://perma.cc/AP2Y -FHU9].
(374.) See Forbath, Law and the Shaping of the American Labor Movement, supra note 27, at 128-66.
(375.) Id.; Tomlins, supra note 30.
(376.) Cf. Barenberg, supra note 43, at 1427-28 (describing Wagner's vision of labor relations).
(377.) For an analysis of how the framework of labor relations has encouraged unions to hold fast to strategies of self-help, see Rogers, supra note 11, at 6, 9.
(378.) See Kate Andrias, Building Labor's Constitution, 94 Tex. L. Rev. 1591,1611 (2016) (describing court rulings against collective action by workers and the labor movement's response).
(379.) See Seymour Martin Lipset, American Exceptionalism 22-23 (1996).
(380.) Compa, supra note 7, at 610.
(381.) Id. at 612.
(382.) Id. at 611 (listing the various reforms unions hope for but cannot enact); cf. Estlund, supra note 7, at 1531 (detailing the extent to which "American labor law has been ... insulated from both internal and external sources of renovation").
(383.) Compa, supra note 7, at 612.
(384.) Cf. DiSalvo, supra note 41, at 3, 13 (arguing that existing dues mechanisms give unions a "privileged position" compared to other interest groups).
(385.) See infra Section TV.B for further discussion of this problem.
(386.) For emphasizing this point, I thank Bob Master, Communication Workers of America. Cf. Clyde Summers, Worker Participation in Sweden and the United States: Some Comparisons from an American Perspective, 133 U. Pa. L. Rev. 175, 215-17 (1984) (comparing Swedish and U.S. regimes and concluding that because of the firm-based system of bargaining in the United States, "the union member's voice in . . . union decisions and policies on economic issues is much more direct and effective in the United States than in Sweden"); Summers, supra note 173 (comparing American and German unions).
(387.) Compa, supra note 7, at 610.
(388.) Id. (citing Irving Bernstein, The Lean Years: A History of the American Worker, 1920-1933 (1960) (describing the weakness of the American labor movement in the 1920s); and Irving Bernstein, Turbulent Years: A History of the American Worker, 1933-1941 (1970) (highlighting the labor movement's eventual gains under the New Deal)).
(389.) For a discussion of how to mitigate these concerns, see infra Section IV.B.
(390.) See supra Section I.C.2.
(391.) See supra note 41 and accompanying text. Notably, those opposing the move toward more sectoral bargaining, including in the modest form embraced by Browning-Ferns, include some supporters of corporate social responsibility. These corporations argue that an expanded bargaining obligation on employers who influence terms and conditions of employment would disincentivize companies from requiring subcontractors to adopt good labor practices. See Brief for Microsoft Corp. & HR Policy Ass'n as Amici Curiae Supporting Petitioner at 27, Browning-Ferris Indus, of Cal., Inc. v. NLRB, No. 16-1028 (D.C. Cir. June 14, 2016). The argument, however, is premised on the resistance of the company at the top of the supply chain to collective bargaining.
(392.) See Meyerson, supra note 373; Growth (2), http://www.growth2llc.com [http://perma.cc /L4MU-8XMR] (describing the group, a partnership of Andrew Stern, former SEIU president, and Chris Chafe, former labor organizer and political and legislative director, as "unlocking] value by creating new relationships between capital, labor, and entrepreneurs, to deliver shared success for workers, investors, companies, and customers").
(393.) See Nick Hanauer & David Rolf, Shared Security, Shared Growth, Democracy (Summer 2015), http://www.democracyjournal.org/37/shared-security-shared-growth.php [http:// perma.cc/S9ET-WSA3] (urging the adoption of "a twenty-first-century social contract" that endows every American worker with a new "Shared Security Account," accompanied by a new set of "Shared Security Standards," without mention of new forms of unions or new collective labor guarantees); see also Meyerson, supra note 373 (reporting that Rolf argues that "labor should focus its remaining energies on bequeathing its resources to start-up projects that may find more effective ways to advance workers' interests than today's embattled unions can").
(394.) Lichtenstein, supra note 42 (discussing union efforts at political coalition building in place of worker organizing); see also Meyerson, supra note 373 (describing AFL-CIO's Working America as "a community-based campaign that until recently hadn't dealt with its members' workplace concerns or had a presence in those workplaces").
(395.) See Meyerson, supra note 373; see also supra notes 392-394 and accompanying text (describing the post-union approach).
(396.) See sources cited supra note 37.
(397.) See, e.g., Freeman & Medoff, supra note 1; Rosenfeld, supra note 1; What Do Unions Do?: A Twenty-Year Perspective (James T. Bennett & Bruce E. Kaufman eds., 2007); Hacker & Pierson, supra note 3, at 186; see also Judith A. Scott, Why a Union Voice Makes a Real Difference for Women Workers: Then and Now, 21 Yale J.L. & FEMINISM 233 (2009) (discussing the role of unions in advancing gender equality); David Vogel, The "New" Social Regulation in Historical and Comparative Perspective, in Regulation in Perspective: Historical Essays 182 (Thomas K. McCraw ed., 1981) (noting that in nations with strong trade unions, occupational safety and health standards tend to be stringent).
(398.) Hacker & Pierson, supra note 3, at 186 (citing Peter Alexis Gourevitch & James J. Shinn, Political Power and Corporate Control: The New Global Politics of Corporate Governance (2005)).
(401.) Pontusson et al., supra note 111, at 282 (discussing the ways in which different labor market institutions, including centralized wage bargaining, affect the distribution of income in a country and concluding that unions promote the relative wages of poorly paid workers); Michael Wallerstein, Wage-Setting Institutions and Pay Inequality in Advanced Industrial Societies, 43 AM. J. Pol. Sci. 649, 669 (1999).
(402.) Evelyne Huber & John D. Stephens, Development and Crisis of the Welfare State 1, 104, 115-16 (2001); Kathleen Thelen, Critical Dialogue: What Unions No Longer Do, 13 Persp. ON Pol. 155, 155 (2015) (reviewing Rosenfeld, supra note 1).
(403.) See Jonas Pontusson, Unionization, Inequality and Redistribution, 51 Brit. J. Indus. Rel. 797, 807-08 (2013); Thelen, supra note 402, at 155; see also Harold Meyerson, Get Out the Union Vote, Am. Prospect (Nov. 9, 2012), http://prospect.org/article/get-out-union-vote [http:// perma.cc/NA3N-EXHV] (documenting voting patterns in the 2012 election).
(404.) See Barenberg, supra note 43, at 1422-27 (describing the aspiration that unions serve as vehicles for democratic consent and cooperation in the workplace and in the polity).
(405.) Cynthia Estlund, Working Together: How Workplace Bonds Strengthen a Diverse Democracy (2003); Freeman & Medoff, supra note 1, at 7-11.
(406.) Freeman & Medoff, supra note 1, at 7-11; Barenberg, supra note 43, at 1493 n.482 (collecting literature suggesting that unions can increase productivity by giving employees a voice). The data supporting this point are somewhat dated, but the theoretical case remains strong.
(407.) See, e.g., Estlund, supra note 405, at 162-81.
(408.) See supra Section I.A.2.
(409.) See supra Section I.A.3.
(410.) See Traxler & Behrens, supra note 177.
(411.) Dimick, supra note 34, at 699 ("Overall, centralized bargaining reduces income inequality to a dramatically greater extent than decentralized bargaining.").
(412.) Freeman & Medoff, supra note 1, at 79-82.
(413.) Dimick, supra note 34, at 699.
(414.) See Pontusson et al., supra note 111, at 289-90, 301 (concluding that bargaining centralization has an egalitarian effect on overall distribution of wages); Wallerstein, supra note 401, at 649, 669, 672-76 (concluding that an important factor in explaining pay dispersion is whether wage-setting occurs at an individual, plant, industrial, or sectoral level). For further discussion, see Dimick, supra note 34.
(415.) Rogers, supra note 11, at 40-43.
(416.) Id. Indeed, as Matthew Dimick has argued, moving to a more centralized bargaining system could shift incentives for unions in ways that address many efficiency-based objections to collective bargaining as well. Dimick, supra note 34, at 692. When union structures are highly decentralized and firm-based, the rational response of unions is to advocate for "seniority-based layoff policies, job definitions and demarcations, internal labor markets, rules limiting employer discretion over technology, manning and staffing requirements, and so forth." Id.
(417.) See supra note 155 and accompanying text.
(418.) Thelen, supra note 24 (examining contemporary changes in labor market institutions in the United States, Germany, Denmark, Sweden, and the Netherlands); Wolfgang Streeck &
Anke Hassel, Trade Unions as Political Actors, in International Handbook op Trade Unions 335 (John T. Addison & Claus Schnabel eds., 2003) (discussing the importance of centralized or industrial bargaining and affirmative state support for unions); cf. Dimick, supra note 34 (arguing for centralization).
(419.) Thelen, supra note 24, at 5, 9-10,194, 203-07.
(420.) Comparing the Nordic countries, Germany, and the United States, Thelen concludes that a range of market economies and labor law systems can produce egalitarian results. The key factors are encompassing unions and a strong, active state. Id. at 204-05. The organization of employers is also key but tends to follow from the power and organization of labor, supported by the state. Id. at 207; see also Silvia, supra note 173, at 41 (emphasizing the central role that the law and state institutions play in sustaining the German industrial relations system).
(421.) See Andrias, supra note 378, at 1610-11 (summarizing court interventions); Cynthia Estlund, Are Unions a Constitutional Anomaly?, 114 Mich. L. Rev. 169, 174 (2015) (exploring how "[l]abor law both restricts and empowers labor unions").
(422.) See Federico Fabbrini, Europe in Need of a New Deal: On Federalism, Free Market, and the Right To Strike, 43 Geo. J. Int'l L. 1175, 1185-89 (2012) (describing the more extensive rights of unions to engage in strikes in France, Italy, and the Nordic countries, all of which vest unions with significant power to engage in sectoral bargaining); Clyde Summers, Comparisons in Labor Law: Sweden and the United States, 7 Indus. Rel. L.J. 1, 17-22 (1985) (comparing the United States, where "legal intervention in internal union processes is substantial," to Sweden, where there is almost a "total void of legal rules concerning the internal process of unions"). But cf. Fabbrini, supra, at 1195-1236 (exploring how EU law is beginning to erode the nationally protected rights to sectoral bargaining).
(423.) See supra notes 386-388 and accompanying text.
(424.) Barenberg, supra note 32, at 961.
(425.) Browning-Ferris Indus, of Cal., Inc., 362 N.L.R.B. No. 186, at 7 (Aug. 27, 2015); see supra notes 149-152, 302-318 and accompanying text.
(426.) Browning-Ferris, 362 N.L.R.B. No. 186, at 11 (quoting NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975)). The Board also criticized its predecessors for narrowing the joint employment standard beyond what was statutorily necessary. Id. at 10.
(427.) The case is on appeal. Browning-Ferris, 362 N.L.R.B. No. 186, appeal filed, No. 16-1064 (D.C. Cir. Feb. 17, 2016). Republican lawmakers, joined by a few Democrats, have introduced legislation to reverse the Board's decision, see Protecting Local Business Opportunity Act, H.R. 3459, 114th Cong. (2015), and have held oversight hearings, see, e.g., Who's the Boss? The "Joint Employer" Standard and Business Ownership: Hearing Before the S. Comm, on Health, Educ., Labor & Pensions, 114th Cong. (2015), http://www.help.senate.gov/hearings/whos -the-bossd-the-joint-employer-standard-and-business-ownership [http://perma.cc/5ETZ -5ZEZ]. The House Appropriations Committee also has advanced a bill that would block spending on many of the NLRB's initiatives. See Staff of H. Comm, on Appropriations, 114TH Cong., Making Appropriations for the Departments of Labor, Health and Human Services, and Education, and Related Agencies for the Fiscal Year Ending Sept. 30, 2017 (Comm. Print 2016), http://appropriations.house.gov/uploadedfiles/bills-114hr-fc -ap-fy2017-apoo-laborhhsed.pdf [http://perma.cc/GT3W-P7EJ].
(428.) See supra notes 148-157 and accompanying text (explaining the law on employer liability for unfair labor practices and the law on multi-employer bargaining).
(429.) An administrative law judge is now considering the application of Browning-Ferris to McDonald's. See McDonald's USA, LLC v. Fast Food Workers Comm., 363 N.L.R.B. No. 144 (Mar. 17, 2016); John Herzfeld, Sides Clash at McDonald's Joint Employer Hearing, Daily Lab. Rep. (Mar. 10, 2016), http://www.bna.com/sides-clash-mcdonalds-n57982068447 [http://perma.cc/U3Z9-QL62].
(430.) Miller & Anderson, Inc., 364 N.L.R.B. No. 39 (July 11, 2016) (overruling H.S. Care L.L.C., 343 N.L.R.B. 659 (2004)).
(431.) See supra notes 157-159 and accompanying text (explaining law on secondary boycotts and strikes).
(432.) See supra notes 311-313; see also FedEx Home Delivery, 361 N.L.R.B. No. 55, at 10, 16 (Sept. 30, 2014) (declining to adopt the D.C. Circuit's holding insofar as it treats entrepreneurial opportunity as the primary inquiry without sufficient regard for all of the common law factors and holding FedEx drivers to be employees).
(433.) Professor Mark Barenberg, in a recent paper published with the Roosevelt Institute, argues for more fundamental statutory reform of the definition of "employer" and the existing concept of bargaining units in order to enable industrial bargaining within the existing NLRA framework. His proposals would allow workers to define the scope of their bargaining unit across employers, though they would not mandate sectoral bargaining or provide a mechanism for extending the fruits of collective bargaining throughout an industry. See Barenberg, supra note 103.
(434.) For example, "as a result of the Fight for $15's prodding, Brazilian prosecutors are investigating alleged wage theft, child labor and unsafe conditions at McDonald's franchised operations, while the European Union is investigating it for more than $1bn in alleged tax evasion." Greenhouse, supra note 343.
(435.) See supra note 143. But cf. Seattle, Wash., Ordinance 124968 (Dec. 23, 2015) (allowing drivers to unionize and adopting a local rate-setting mechanism).
(436.) Greenhouse, supra note 343. Courtney further stated, "If we had a vehicle or mechanism where people could join the organization and fund those fights, I think many people would happily join." Id.
(438.) For a discussion of such regimes, see, for example, Thelen, supra note 24, at 24; Estreicher, supra note 132, at 27-33 (evaluating German and Canadian styles of labor law reform); Streeck & Hassel, supra note 418 (analyzing the role of modern trade unions in a variety of countries); and supra notes 172-177 and accompanying text.
(439.) See supra notes 52-53, 172 and accompanying text.
(440.) For example, any federal law would need to contain statutory standards that limit executive discretion and do not excessively delegate legislative power to private groups. See Carter v. Carter Coal Co., 298 U.S. 238, 238-42 (1936) (striking down the Bituminous Coal Conservation Act of 1935 in part because it unconstitutionally delegated public power to private groups); A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537, 541-42 (1935) (striking down the NIRA on the ground that the unbound code-making authority given to the President, with input from trade and industry groups, impermissibly delegated legislative power). The validity of these cases has been questioned, but the Court has had few opportunities to revisit the private nondelegation doctrine in recent years. See, e.g., Dep't of Transp. v. Ass'n of Am. R.Rs., 135 S. Ct. 1225, 1228 (2015) (holding that Amtrak is a governmental entity, rather than an autonomous private entity, and therefore not reaching the private nondelegation question).
(441.) See supra notes 127-130 and accompanying text.
(442.) See supra notes 280-284 and accompanying text.
(443.) S. 6406C, 239th Leg., Reg. Sess. (N.Y. 2016). Existing wage orders remain in effect and New York law still allows the Commission to act regarding hours. See id. [section] 5; Nat'I Rest. Assoc. v. Comm'r of Labor, 34 N.Y.S.3d 232, 235-36 (App. Div. 2016) (discussing the legislative history surrounding the enactment of the law).
(444.) E.g., Mass. Gen. Laws Ann. ch. 151 [section] 7 (West 2013); N.D. Cent. Code Ann. [section][section] 34-06-01 to -08 (West 2014); see also sources cited infra note 446 (describing statutes creating tripartite commissions).
(445.) See, e.g., Cal. Lab. Code [section] 1178.5 (West 2011); Colo. Rev. Stat. [section][section] 8-6-108 to-109 (2013); N.D. Cent. Code Ann. [section] 34-08-01 (West 2014).
(446.) See Cal. Lab. Code [section][section] 70-74, 1173, 1178 (West 2011) (authorizing an Industrial Welfare Commission, appointed by the Governor, and composed of two representatives of employers, two from recognized labor organizations, and one from the general public; requiring commission to review adequacy of minimum wage every two years; and providing for industry-specific wage boards); Colo. Rev. Stat. [section] 8-6-109 (2011) (authorizing a wage board comprised of an equal number of employer, employee, and public representatives); N.J. Stat. Ann. [section] 34:11-5634.7 (West 2011) (establishing the "New Jersey Minimum Wage Advisory Commission" with "five members as follows: the Commissioner of Labor and Workforce Development, ex officio, who shall serve as chair of the commission, and four members appointed by the Governor as follows: two persons who shall be nominated by organizations who represent the interests of the business community in this State and two persons who shall be nominated by the New Jersey State AFL-CIO); id. [section] 34:11-5638, a9 (providing that the Commissioner may establish a wage board to set minimum rates for employees in particular occupations; such boards shall be composed of equal numbers of employer, employee, and public representatives). Arizona law also permits the establishment of a tripartite wage board, but only to address wages of minors. Az. Rev. Stat. Ann. [section] 23314 (2012). Meanwhile, reflecting the approach when wage boards were first enacted, Illinois law authorizes boards to address the wages of women and children. 820 III. Comp. Stat 125/5.1 (2011) (allowing wage boards "composed of not more than 2 representatives of the employers in any occupation or occupations, an equal number of representatives of the employees in such occupation or occupations and of one disinterested person representing the public, who shall be designated as chairman"). Other states previously had wage boards but have since repealed them. See, e.g., N.H. Rev. Stat. Ann. [section] 279:5 (1987) (repealed 1995) (authorizing a wage board).
(447.) Cal. Lab. Code. [section] 70.1 (West 2011). The labor representatives must be drawn from "members of recognized labor organizations." Id. IWC dates to 1913, but until the 1970s applied to women and child workers only. See Indus. Welfare Comm'n v. Superior Court, 613 R2d 579, 583-84 (Cal. 1980).
(448.) Cal. Lab. Code. [section] 1178.5 (West 2011).
(449.) Id. [section][section] 1178, 1178.5.
(450.) Id. [section] 1178.5(c).
(451.) See Cal. Code Regs. tit. 8, [section][section] 11000-11170 (2016); Indus. Welfare Comm'n, Wage Orders, Cal. Dep't Indus. Rel. (July 2014), http://www.dir.ca.gov/IWC/WageOrderIndustries.htm [http://perma.cc/RU26-PQDP] (listing a series of minimum wage and industry wage orders); see also Tiffanny Brosnan, California's Wage Orders: Landmines and Goldmines, ORANGE County L., June 2012, at 12 (reporting that "[a] 11 California employers must comply with a multitude of wage and hour laws that go well beyond setting minimum wages and calculating overtime pay" and describing the IWC's seventeen different Wage Orders, "each one applicable to a particular industry" ranging from "Manufacturing to Mercantile" with "fine distinctions made between them"); Shah & Seville, supra note 353, at 425-28 (discussing the history of the IWC's role in regulating domestic work). Although the IWC is not in operation now, its existing orders are still enforced. See Industrial Welfare Commission (IWC), Cal. Dep't Indus. Rel., http://www.dir.ca.gov/iwc/iwc.html [http:// perma.cc/8RHP-RQ2Y].
(452.) N.J. Stat. Ann. [section][section] 34:11-5634.7 et seq. (West 2016).
(453.) Id. [section] 34:11-5634.7.
(454.) Id. [section] 34:11-5634.8(3); see also Minimum Wage Advisory Commission, N.J., Dep't Lab. & Workforce Dev., http://lwd.dol.state.nj.us/labor/lwdhome/MinWageCommission.html [http://perma.cc/S8PR-8DZT] (describing the mission of the Commission and collecting annual reports).
(455.) N.J. Stat. Ann. [section] 34:11-5648 (West 2016).
(456.) Id. [section] 34:11-56416 (West 2016).
(457.) See supra note 446.
(458.) But see supra Section II.C.2 (describing recent New York activity).
(459.) Max Zahn, Can the Fight for $15 Replicate Its New York Wage Board Victory Around the Country?, In These Times (Oct. 15, 2015), http://inthesetimes.com/working/entry/18516/fight -for-15-wage-board-minimum-wage [http://perma.cc/6CD7-5E4X] (quoting Mary Kay Henry, President of SEIU, stating that the movement would seek "to set up wage boards everywhere in the country").
(460.) See supra note 178 and accompanying text.
(462.) See supra notes 116-125 and accompanying text.
(463.) See Memorandum from Ronald Meisburg, supra note 178, at 10-11 (citing Eastex, Inc. v. NLRB, 437 U.S. 556, 568 n.18 (1978) (stating, in dicta, that "[t]he argument that the employer's lack of interest or control affords a legitimate basis for holding that a subject does not come within 'mutual aid or protection' is unconvincing. The argument that economic pressure should be unprotected in such cases is more convincing.")).
(464.) Id. at 12; cf. Oswalt, supra note 42, at 658-69 (describing the law on intermittent strikes and arguing that the Fight for $15 strikes do not qualify).
(465.) See, e.g., Becker, supra note 125, at 377-78 (critiquing the doctrine on collective labor action and intermittent strikes for failing to "set forth any ... standard by which to judge whether particular strikes are indefensible"); Seth Kupferberg, Political Strikes, Labor Law, and Democratic Rights, 71 Va. L. Rev. 685, 752 (1985) (arguing that both the NLRA and the Constitution afford greater protection for political strikes). For recent scholarship arguing that workers' collective activity deserves greater protection than it currently receives, either under the NLRA or under the Constitution, see, for example, Crain & Inazu, supra note 228; Catherine Fisk & Jessica Rutter, Labor Protest Under the New First Amendment, 36 Berkeley J. Emp. & Lab. L. 277 (2015); and Rogers, supra note 32.
(466.) Oswalt, supra note 42, at 658-69.
(467.) As the New York Appellate Division recently explained, the Dormant Commerce Clause is not violated when '"there is no differential treatment of identifiable, similarly situated instate and out-of-[s]tate interests' on the face of the wage order" and there is no evidence that "the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits." Nat'l Rest. Ass'n v. Comm'r of Labor, 34 N.Y.S.3d 232, 239-40 (App. Div. 2016) (quoting Tamagni v. Tax Appeals Trib. of N.Y., 695 N.E.2d 1125, 1133 (N.Y. 1998)). Equal protection challenges have been dismissed as the employers have failed to show the legislatures acted without a rational basis. See, e.g., Int'l Franchise Ass'n, Inc. v. City of Seattle, 803 F.3d 389, 407 (9th Cir. 2015) (holding, with respect to the Seattle $15 minimum wage law, that "[t]he district court did not clearly err in finding a legitimate purpose in the classification and a rational relationship between franchisees and their classification as large employers;" a "reasonably conceivable state of facts" could support the classification based on "the economic benefits flowing to franchisees" and franchisees' ability to "handle the faster phase-in schedule"), cert, denied, 136 S. Ct. 1838 (2016).
(468.) Nat'l Rest. Ass'n, 34 N.Y.S.3d at 238 (noting that "the Commissioner is tasked with making complex economic assessments in issuing a wage order, but has special expertise to do so in the form of investigative powers in the area of wages and leadership of an agency capable of providing expert guidance" and that "the basic policy decisions underlying wage orders were made and articulated by the Legislature" (internal citations omitted)).
(469.) The analysis for each locality and state would vary; for a brief review of some of the relevant federal law on private delegations, see supra note 440.
(470.) See Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907) ("Municipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them ... in the absolute discretion of the State."); Richard Briffault & Laurie Reynolds, State and Local Government Law 278-79 (2009).
(471.) See Zachary Roth, The Great Suppression 73-87 (2016) (describing how conservative state governments, often at the behest of industry groups, have enacted state laws to block progressive local legislation, but acknowledging that preemption can cut in favor or against progressive goals).
(472.) Cf. Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1841, 1908-09 (1994) ("A centralized regional authority that encompasses several localities leaves little opportunity for politically empowered cultural communities to form and thrive.").
(473.) See Teresa Tritch, The Backlash in Birmingham, N.Y. TIMES: TAKING Note (Feb. 29, 2016, 1:23 PM), http://taldngnote.blogs.nytimes.com/2016/02/29/the-bacldash-in -birmingham [http://perma.cc/6FWA-VMWK]. Notably, the legislature in Alabama is majority white; Birmingham is majority African-American. Id. Alabama is one of five states with no state minimum wage. Id. Workers in Birmingham, represented by the NAACP, filed suit challenging the Alabama law, arguing that the state effort to nullify the local wage violates the Fourteenth Amendment's Equal Protection Clause. According to the complaint, the decision was "racially motivated" and "disproportionately impacts African-American residents." Complaint at 3, Lewis v. Bentley, No. 16-CV-00690 (N.D. Ala. Apr. 28, 2016).
(474.) 29 U.S.C. [section] 218(a) (2012).
(475.) Michael H. Gottesman, Rethinking Labor Law Preemption: State Laws Facilitating Unionization, 7 Yale J. on Reg. 355, 374-94 (1990). For a summary of labor preemption doctrine and its origins, see Sachs, supra note 127, at 1164-69.
(476.) 359 U.S. 236, 245-46 (1959).
(477.) 427 U.S. 132 (1976).
(478.) Id. at 141 (citing NLRB v. Ins. Agents' Int'l Union, 361 U.S. 477, 488-89 (i960); and Hanna Mining Co. v. Dist. 2, Marine Eng'rs Beneficial Ass'n, 382 U.S. 181, 187 (1965)).
(479.) Id. at 140 (quoting NLRB v. Nash-Finch Co., 404 U.S. 138, 144 (1971)).
(480.) Id. at 149.
(481.) Id. at 144, 149-50.
(482.) The question of the proper scope of federal preemption doctrine in the labor context, which has cut both for and against unions, is the subject of much scholarly attention. See, e.g., Henry H. Drummonds, Reforming Labor Law by Reforming Labor Law Preemption Doctrine To Allow the States To Make More Labor Relations Policy, 70 La. L. Rev. 97, 163-88 (2009); Estlund, supra note 7, at 1530-31, 1569-79; Gottesman, supra note 475; Sachs, supra note 127.
(483.) See, e.g., Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 618 (1986) (preempting Los Angeles's decision to condition the award of a taxi franchise on the taxi company's agreement to settle a strike).
(484.) N.Y. Tel. Co. v. N.Y. State Dep't of Labor, 440 U.S. 519, 532 (1979) (plurality opinion); see also Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756 (1985) ("It would turn the policy that animated the Wagner Act on its head to understand it to have penalized workers who have chosen to join a union by preventing them from benefiting from state labor regulations imposing minimal standards on nonunion employers."). The California Supreme Court has rejected a labor law preemption challenge to its state's wage commission. Indus. Welfare Comm'n v. Superior Court, 613 P.2d 579, 600-01 (Cal. 1980) (emphasizing states' authority to go beyond the federal legislation in adopting more protective regulations for the benefit of employees). For similar reasons, under current doctrine, a First Amendment challenge should fail. Any effect on the expressive interests of employers or objecting workers would be indirect. See Lyng v. Int'l Union, UAW, 485 U.S. 360, 360-61 (1988) (holding that a statute denying food stamps to striking workers does not directly and substantially interfere with First Amendment rights).
(485.) Cf. Sachs, supra note 127 (discussing preemption arguments with respect to tripartite negotiations that result in privately negotiated agreements).
In addition to the legal challenges discussed above, to the extent local law permits independent contractors to engage in bargaining, antitrust law could also pose an obstacle. The antitrust laws contain a labor exemption, see Clayton Act [section] 6, 15 U.S.C. [section] 17 (2012) (making clear that labor unions are not combinations or conspiracies in restraint of trade within the meaning of section 1 of the Sherman Act, 15 U.S.C. [section] 1 (2012)); Clayton Act [section] 20, 29 U.S.C. [section] 52 (2012) (restricting the use of injunctions against union activity); Connell Constr. Co. v. Plumbers Local Union No. too, 421 U.S. 616, 621-26 (1975) (discussing the origins and scope of the "nonstatutory" labor exemption that extends to concerted activities and agreements between labor and non-labor parties), but many commentators believe that the labor exemption, at least under current doctrine, would not apply to concerted action among low-wage independent contractors, see, e.g., Sanjukta M. Paul, The Enduring Ambiguities ofAntitrust Liability for Worker Collective Action, 47 Loy. U. Chi. L.J. 969, 977-79 (2016); Elizabeth Kennedy, Comment, Freedom from Independence: Collective Bargaining Rights for "Dependent Contractors," 26 Berkeley J. Emp. & Lab. L. 143, 168-74 (2005). But cf. id. (explaining that when independent contractors engage in concerted action in conjunction with an employee labor union, in order to eliminate unfair competition between themselves and regular employees, the exemption may apply).
Seattle Ordinance 124968, which provides for collective bargaining and rate setting for drivers of hired cars, including Uber cars, has been challenged on antitrust grounds, as well as labor preemption grounds. See Chamber of Commerce v. City of Seattle, No. C160322RSL (W.D. Wash. Aug. 9, 2016) (unpublished order) (dismissing suit for lack of standing). Assuming the drivers are independent contractors who do not qualify for the labor exemption, a likely issue will be whether the ordinance qualifies for Parker immunity, which allows states to enact anticompetitive regulation when acting in their sovereign capacities. See Parker v. Brown, 317 U.S. 341 (1943). Parker immunity does not apply directly to local and municipal governments, but local law can be immune if it restricts competition in a manner authorized by state law. See City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S. 365, 370 (1991). In order for Parker immunity to apply, the regulatory restraint of trade must be "clearly articulated and affirmatively expressed as state policy" and the scheme must be '"actively supervised' by the State." Cal. Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 103, 105 (1980) (quoting City of Lafayette v. La. Power & Light Co., 435 U.S. 389, 410 (1978)). Any social bargaining statutes that apply to independent contractors would have to be designed with these requirements in mind.
(486.) Alejandra Cancino, Union Spent at Least $2 Million Last Year on Fight for $15 Movement, Chi. Trib. (May 29, 2014), http://www.chicagotribune.com/business/chi-union-spending -fight-for-15-20140529-story.html [http://perma.cc/5KK9-S3MC].
(487.) The immediacy of unions' loss of funding has receded. Prior to Justice Scalia's death, the Supreme Court was widely anticipated to rule in Friedrichs v. California Teachers Ass'n, No. 14-915 (argued Jan. 11, 2016), that mandatory agency fees in the public sector are unconstitutional, or that workers must affirmatively opt-in to paying fees. Unions like SEIU would likely have faced a substantial decline in their revenue. On March 29, 2016, however, the Supreme Court issued a one sentence four-four per curiam opinion affirming the lower court and maintaining the existing doctrine. 136 S. Ct. 1083 (2016) (mem.); see also supra note 169 (detailing the Supreme Court's restrictions on union fee collecting).
(488.) Telephone Interview with Judy Scott, Gen. Counsel, SEIU (Apr. 10, 2016).
(489.) David Wenner, Thousands of Pa. Nursing Home Workers Will Get $15 an Hour, PennLive (Apr. 5, 2016), http://www.pennlive.com/news/2016/04/seiu.html [http://perma.cc/2EFC -N6QE],
(490.) Tripp Baltz, Denver Janitors Ratify Deal Paying $15 an Hour in Fourth Year, 134 Daily Lab. Rep., at A-6 (July 13, 2016), http://news.bna.com/dlln /DLLNWB/split_display.adp?fedfid=93885587&vname=dlrnotallissues [http://perma.cc /W3BJ-UVDJ]; Rhonda Smith, SEIU Members OK Pact for 2000 Janitors in Oregon, Washington, 133 Daily Lab. Rep (BNA), at A-2 (July 12, 2016), http://news.bna.com/dlln/DLLNWB /split_display.adp?fedfid=93797426&vname=dlrnotallissues [http://perma.cc/4C5J-F3Q8].
(491.) See Wachter, supra note 53, at 631-32; sources cited supra note 421.
(492.) Wachter, supra note 53, at 631-32; see Lichtenstein, supra note 61, at 122-23; supra notes 65-68 and accompanying text.
(493.) See supra notes 112-113, 115, 162 and accompanying text.
(494.) See Right-to-Work Resources, Nat'l Conf. St. Legislatures, http://www.ncsl .org/research/labor-and-employment/right-to-work-laws-and-bills.aspx [http://perma.cc /ADK3-P44P]. West Virginia approved right-to-work legislation in February 2016. Id.
(495.) Labor Management Relations (Taft-Hartley) Act [section] 14(b), 29 U.S.C. [section] 164(b) (2012).
(496.) Fisk & Sachs, supra note 225, at 880. In recent months, a few judges have concluded that this system constitutes an unconstitutional taking. Sweeney v. Pence, 767 F.3d 654, 671-84 (7th Cir. 2014) (Wood, J., dissenting); IAM v. Wisconsin, No. 2015CV00628 (Wis. Cir. Ct. Apr. 8, 2016). Professors Catherine Fisk and Benjamin Sachs argue that the NLRA does not permit the current inequity. In their view, a better reading of section 14(b) would conclude that federal law permits states to ban mandatory payments that are the equivalent to the full cost of membership, but that states cannot ban lesser mandatory payments to cover the cost of services. Fisk & Sachs, supra note 225, at 874-79.
(497.) See supra notes 169, 487 (discussing the movement by the then-five-Justice conservative majority on the Supreme Court toward constitutionalizing right-to-work doctrine in the public sector).
(498.) Fisk & Sachs, supra note 225, at 860 (discussing section 8(b)(1)(A), which makes it an unfair labor practice for a union to "restrain or coerce employees in the exercise of the rights guaranteed" in section 7); see, e.g., NLRB v. North Dakota, 504 F. Supp. 2d 750, 757 (D.N.D. 2007); Columbus Area Local, 277 N.L.R.B. 541, 543 (1985).
(499.) Fisk & Sachs, supra note 225, at 860.
(500.) Cf. NLRB v. Gen. Motors Corp., 373 U.S. 734, 743-44 (1963) (prohibiting a union from requiring membership).
(501.) Daniel Hemel & David Louk, Is Abood Irrelevant?, 82 U. Chi. L. Rev. Dialogue 227, 229 (2015); Aaron Tang, Public Sector Unions, the First Amendment, and the Costs of Collective Bargaining, 91 N.Y.U. L. Rev. 144,144 (2016) (urging this approach in the public sector as a solution to the perceived First Amendment problem with check offs of mandatory dues).
(502.) Janice Fine & Jennifer Gordon, Strengthening Labor Standards Enforcement Through Partnerships with Workers' Organizations, 38 Pol. & Soc'y 552, 558-60 (2010) (discussing existing efforts at tripartite enforcement).
(503.) In Europe, unions frequently have a role in the administration of social insurance. Streeck & Hassel, supra note 418, at 347.
(504.) The hiring hall used by the Culinary Union in Las Vegas may provide a model. See Harold Meyerson, Las Vegas as a Workers' Paradise, Am. PROSPECT (Dec. 11, 2003), http://prospect .org/article/las-vegas-workers-paradise [http://perma.cc/88JQ-8UDF].
(505.) See Peter Chomko et al., Union-Management Training that Works, Persp. ON WORK 42 (2014), http://1199ctraining.org/docs/POW_Vol18_Rnd4.pdf [http://perma.cc/XZ5C -SLB3] (discussing the success of District 1199's training fund).
(506.) See 29 U.S.C. [section][section] 158(a)(2), 186 (2012); Mulhall v. UNITE HERE Local 355, 667 F.3d 1211 (nth Cir. 2012), cert, granted, 133 S. Ct. 2849, cert, dismissed as improvidently granted, 134 S. Ct. 594 (2013); Dana Corp., 356 N.L.R.B. No. 49 (Dec. 6, 2010); cf. Tang, supra note 501, at 172225 (analyzing the legality of employer-funded, that is government-funded, unions in public sector and advocating this approach).
(507.) See Harris v. Quinn, 134 S. Ct. 2618, 2649 n.4 (2014) (Kagan, ]., dissenting) (describing the relationship between employees and those who receive government funding).
(508.) Cf. Fine, supra note 215, at 610 (discussing the challenges of worker center funding); supra note 421 and accompanying text (discussing the contingent relationship between statism in labor relations and union independence).
(509.) See supra Part II.
(510.) See Fisk & Sachs, supra note 225, at 870-72 (discussing, for example, Charleston Nursing Center, 257 N.L.R.B. 554, 555 (1981); and Dick's Sporting Goods Advice Memorandum from Barry J. Kearney, Assoc. Gen. Counsel, Div. of Advice, Office of the Gen. Counsel, NLRB, to Gerald Kobel, Reg'l Dir., Region 6, NLRB 13 (June 22, 2006)).
(511.) Morris, supra note 226; see also Catherine Fisk & Xenia Tashlitsky, Imagine a World Where Employers Are Required To Bargain with Minority Unions, 27 A.B.A. J. Lab. & Emp. L. x, 10-19 (2011) (assessing the advantages and risks of members-only bargaining); Clyde Summers, Unions Without Majority--A Black Hole?, 66 Chi.-Kent L. Rev. 531, 534 (1990) (arguing that the NLRA allows non-majority unions and describing how unions without majorities can represent and serve the interests of workers in the workplace).
(512.) Morris, supra note 226, at 99-101,156-57; see also 29 U.S.C. [section] 157 (2012) (granting employees the rights to organize and to engage in collective bargaining without limiting these rights to workplaces where a majority of employees have voted to unionize).
(513.) 29 U.S.C. [section] 159 (2012).
(514.) Labor Management Relations Act of 1947 [section] 301, 29 U.S.C. [section] 185 (2012); Retail Clerks Int'l Ass'n, Local Union 128 v. Lion Dry Goods, Inc., 369 U.S. 17, 29 (1962).
(515.) See Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 844-45 (1984) (quoting United States v. Shimer, 367 U.S. 374, 383 (1961)) (discussing the principle of judicial deference to administrative interpretation where such choices "represent a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute").
(516.) See Rogers, supra note 32 (discussing the range of alt-labor models that could be combined with corporatism); supra notes 349-350 and accompanying text.
(517.) See Jack Ewing & Bill Vlasic, VW Plant Opens Door to Union and
Dispute, N.Y. Times (Oct. 10, 2013), http://www.nytimes.com/2013/10/11/business/vw-plant -opens-door-to-imion-and-dispute.html [http://perma.cc/9PPW-CLDY] (describing Volkswagen's willingness to experiment with the works council model, within the confines of American labor law, which prohibits company-established unions). But see Neal E. Boudette, Volkswagen Reverses Course on Union at Tennessee Plant, N.Y. TIMES (Apr. 25, 2016), http://www.nytimes.com/2016/04/26/business/volkswagen-reverses-courseon -union-at-tennessee-plant.html [http://perma.cc/832V-EEXL].
(518.) See Rolf, Toward a 21st Century Labor Movement, supra note 32 (offering Kaiser Permanente and its twenty-eight unions as an example of co-determination; Home Care Associates in the Bronx as an example of a worker-owned cooperative; and the Publix grocery chain as an example of an Employee Stock Ownership Programs).
(519.) See Rogers, supra note 32.
(520.) William Novak, A New Democracy: Law and the Creation of the Modern American State 64-65 (forthcoming 2017).
(521.) See K. Sabeel Rahman, Democracy Against Domination (forthcoming 2016); Andrias, supra note 184.
(522.) Existing efforts to address the imbalance of power fall short of remedying these problems. Campaign finance regulation, for example, has been moderately successful at best, as have efforts to insulate the regulatory process. See Andrias, supra note 521, at 446-52, 496-97 (discussing mechanisms of agency "capture" and problems with seeking to insulate agencies from such capture); Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77 Tex. L. Rev. 1705 (1999) (showing how political actors adjust to campaign finance regulation by reorganizing and redirecting political spending in ways not reached by existing law); Michael S. Kang, The End of Campaign Finance Law, 98 Va. L. Rev. 1 (2012) (showing how Citizens United v. FEC, 558 U.S. 310 (2010), led to the near complete deregulation of independent expenditures).
(523.) See Novak, supra note 520.
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|Title Annotation:||III. The Case for the New Labor Law B. A Qualified Defense through Conclusion, with footnotes, p. 76-100|
|Publication:||Yale Law Journal|
|Date:||Oct 1, 2016|
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