Chicago-Kent Law Review

Volume 95 Issue 1 The State of the Law of the New Labor Article 42 Movement

9-15-2020

Alt Labor? Why We Still Need Traditional Labor

Martin H. Malin Chicago-Kent College of Law

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Recommended Citation Martin H. Malin, Alt Labor? Why We Still Need Traditional Labor, 95 Chi.-Kent L. Rev. 157 (2020). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol95/iss1/42

This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. 42394-ckt_95-1 Sheet No. 83 Side A 06/12/2020 13:18:38 , ,U.S. ELEASE R note2, at4. EWS VIDENCE ON THE supra ., N E EW EW TATS S :N Kochan, OB J * See ABOR L . 3, 3. 3, (2019). There is also strong evidence also strong There is evidence UST A EV 1 J ALIN .R OT EL ,N UREAU OF .R H. M 157 157 AB Unions, Norms and the Rise in U.S. Wage Inequality Wage in U.S. Rise the and Norms Unions, .&L RABTREE NTRODUCTION ) 5/8/2020) 10:43 PM I ARTIN C (2019), https://www.gallup.com/file/education/267650/Not M NDUS ELETE D TEVEN TATES Worker Voice in America: Is There a Gap between What Workers Workers What between a Gap There Is America: in Voice Worker Of course, union representation and collective and collective representation union Of course, OT OT , 72 , 72 I S 3 N &S O In a major study of workers’ perceptions of their their of perceptions workers’ of study a major In 2 NITED U OTHWELL 1 EIC 5.5 (D R . 513,513 (2011). ACRO ACRO ORK IN THE M EV , https://www.bls.gov/news.release/pdf/union2.pdf [https://perma.cc/XJ79-7CDZ]. Union Bruce Western & Jake Rosenfeld, Rosenfeld, Jake & Western Bruce W .R ONATHAN attention has turned to alternatives to traditional unions and and unions to traditional to alternatives has turned attention ALIN See 4 OC ALT LABOR? WHY WE STILL NEED TRADITIONAL WHY WE ALT LABOR? LABOR ABOR L 7M The United States’ workplace is characterized by income inequality, inequality, income by characterized is workplace States’ The United .S As traditional unions have increasingly come under attack over the past past over the attack come under have increasingly unions traditional As – emerged have labeled “alt labor” new organizations decades, several struc- different but goals have similar that organizations rights workers’ T M ’ UALITY OF EP collective bargaining. Labor Educator Steven Ashby describes the devel- the describes Ashby Steven Educator Labor bargaining. collective opment: bargaining have been the traditional methods for providing workers a voice voice a workers providing for methods traditional the been have bargaining percent- the jobs. As their of quality the improving and workplaces in their de- has steadily unions labor by represented workers age of American clined, that U.S. workers are experiencing a significant voice gap, i.e., a significant significant a i.e., gap, voice significant a experiencing are workers U.S. that have should they believe they influence of level the between difference influence of level the and workplaces their at conditions to respect with have. do actually they and there is strong evidence that the decline of collective bargaining has has bargaining of collective the decline that evidence is strong and there phenomenon. that in role a significant played D Q * Professor and Co-director, Institute for Law and the Workplace, Chicago-Kent College of Law, Law, of College Chicago-Kent Workplace, the and Law for Institute Co-director, and Professor * 2. ThomasKochan A. etal., Expect and What They Experience? They What and Expect density peakedat around 35% in1945 andhasdeclined ever since. %20Just%20a%20Job%20New%20Evidence%20on%20the%20Quality%20of%20Work%20in%20the [https://perma.cc/2KP6-8TUC]. %20United%20States.pdf representedby unions, down0.2% by from 2017. B were 11.7% and unions of 4. members were workforce salaried and wage the of 10.5% 2018, In 3. J 3. Illinois Institute of Technology. I gratefully acknowledge helpful comments from Robert Bruno and and Bruno Robert from comments helpful acknowledge gratefully I Technology. of Institute Illinois Mandy librarian reference Chicago-Kent from assistance research helpful and Marzán, Rosado Céasar Lee. 1. jobs, only 40% reported they were in good jobs, where job quality was was job quality where jobs, good in were they reported 40% only jobs, as qualities cite generally employees that characteristics ten by measured jobs. their in they desire 76 A 76 42394-ckt_95-1 Sheet No. 83 Side A 06/12/2020 13:18:38 A 06/12/2020 83 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 83 Side B 06/12/2020 13:18:38 , 43 , 43 , has , has AND THE AND THE , OLICIES AND P Labor Law Labor Law 8 this chap- CTIVISTS A UBLIC ?P AITH ,F ORKERS le answer to [Vol 95:1 [Vol W ORKERS What Do Unions Do? What W al civil rights organizations. organizations. al civil rights 6 ORKS FOR recognition that the traditional un- traditional recognition that the 50, 50 (Stephanie Luce et al. eds. 2014). 2014). eds. al. et Luce (Stephanie 50 50, W Rosenblum cites four reasons for his his for reasons four cites Rosenblum MMIGRANT 7 HAT $15: I ) 5/8/2020) 10:43 PM ORKERS W W in ELETE , D AGE AGE EYOND EYOND 174 (2017). (2017). 174 OT OT -W 5 CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT N , B O What Can Labor Organizations Do for U.S.Workers When Unions OW L OVEMENT “Traditional” and “Alt” Labor: Comparisons, Critiques and Perspectives and Critiques Comparisons, Labor: “Alt” and “Traditional” M OSENBLUM 1 EIC 5.5 (D R ABOR L ACRO ACRO M TRATEGIES FOR J. 101, 101 (2018). 101 101, J. S at 174–75. at 174–75. ONATHAN ALIN Id. 158 158 7M TUDIES ion model of organizing workers through representation elections and and elections representation through workers organizing of model ion With end. a dead reached has management with collectively bargaining private-sector public sector uniondigits single and density falling in and The starting point for any realistic assessmentThe starting realistic any point of for what labor organiza- is workers can do for American tions tures and methods than organized labor. At the core of alt-labor are more are more alt-labor of the core labor. At organized than and methods tures than more for active been have which centers, worker than two hundred and workers immigrant of mostly rights the championing decades two it. fight to how and wage theft about conversation a national launching formationsinclude Other labor-community alt-labor immi- coalitions, worker faith-based organizations, workers’ grant community-based ter’s title question [what can labor organizations do for U.S. workers U.S. workers for do labor organizationster’s title question [what can ac- not will unions that do?] is to used unions do what can’t when unions on economic have an impact to ways find they much unless complish bargaining. of collective outside outcomes collective bargaining under attack, the only sensib the attack, collective bargaining under As well, the Fight for Fifteen movement, while funded and staffed by a a by staffed and funded while movement, for Fifteen Fight the well, As EmployeestraditionalInternational Service has Union), (the union built and tac- the characteristics that embodies movement a low-wage worker groups. of alt-labor tics rights organizations, and worker-based raci worker-based and organizations, rights .S EVIVAL OF THE AB NNOVATIVE 7. J 7. dire analysis: the continuing decline in union density, the limited vision and and vision limited the density, in union decline the continuing analysis: dire bargaining collective a model, unionism business the of structure outmoded work- the of portion growing a of needs the meets longer no that model issues. to workplace limited focus union and narrow force, scholars Marion Crain and Ken Matheny reacted to the Supreme Court’s Court’s Supreme the to reacted Ken Matheny and Crain Marion scholars 8. 8. 5. Steven Ashby, Steven 5. I R written: written: hour per a $15 gain to action successful first the campaign, Airport Sea-Tac SEIU’s of director as served who Rosenblum, Jonathan Similarly, exists it currently as movement union “the that written has wage, minimum to- in power needed of kind the sustaining and building of capable isn’t reality.” political and economic day’s Free- Richard economist Labor bargaining. collective and unionism ness busi- traditional up on given have simply many that appears it Indeed, influential enormously of the man, coauthor L Can’t Do What They Usedto Do? 6. Freeman, B, Richard 42394-ckt_95-1 Sheet No. 83 Side B 06/12/2020 13:18:38 B 06/12/2020 83 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 84 Side A 06/12/2020 13:18:38 . MP .&E TS .R MP They view the the view They , 22 E 11 ? EPRESENTATION AND EPRESENTATION 10 R OOTS R 12 by calling for the rejection of of rejection the for by calling 9 159 159 XCLUSIVE OLITICAL E P Unions, Solidarity, and Money ) 5/8/2020) 10:43 PM TS I ALT LABOR? SCHEW ELETE D E OT OT N O ETURN TO ABOR L R 1 EIC 5.5 (D HOULD ACRO ACRO Janus v. AFSCME Council 31 Council AFSCME v. Janus S M at 265–66. 265–66. at at 268–73. at 268–73. II. ALIN Id. Id. 2020] 7M J. 259,263–64 (2018). This article is a plea to not abandon traditional business unionism. I I unionism. business traditional abandon to not a plea is This article Crain and Matheny decry that labor has become molded into a role of of role a into molded has become labor that decry and Matheny Crain Y ’ OL 12. 12. there is a way forward. forward. a way is there 11. 11. argue that traditional business unionism produces significant benefits for for benefits significant produces unionism business traditional that argue unable are representation labor of forms alternate that society and workers on focus to unions for call Matheny’s and Crain on focus I II, Part In to do. the argue that I unionism. to business as opposed activism political overtly the in workers that disadvantages inherent the address not does approach Part In remedies. unionism business traditional that and face sector public so- and for workers brings labor traditional that benefits I focus on the III, centers. worker particularly labor, alt so-called examine I Part IV, In ciety. I find that worker centers perform very important roles, particularly forthe traditional for a substitute are not but workers, immigrant lowest-wage current its in even labor, traditional need still we that conclude I labor. to how to as conversation the not abandon should and state weakened whether question the address Part V, I In unions. traditional strengthen the traditional model of business unionism, where unions negotiate and and negotiate unions where unionism, business of model traditional the in unit, bargaining a for agreement bargaining collective a administer they to what a return and representative, exclusive as they serve which identity. political overt historically labor’s view as transactional service provider by our system of labor law. They lament the the law. lament They of labor by our system provider service transactional World the of Workers the Industrial Labor and of the Knights of decline protect to organizing in and ideological political who were unabashedly system. capitalist the challenging directly by workers P 9. 138 10.S. Ct. 2448 (2018). MarrionCrain C.Ken Matheny, & Wagner Act as channeling unions into service models where they negotiate negotiate where they models service into unions channeling Act as Wagner vote, majority by have, who workers the to limited contracts and enforce those as and covering representatives exclusive their them opted to make conditions, working and in wages interests economic immediate workers’ justice. social in interests broader than rather decision in in decision 42394-ckt_95-1 Sheet No. 84 Side A 06/12/2020 13:18:38 A 06/12/2020 84 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 84 Side B 06/12/2020 13:18:38 L.J. L.J. , 18 , 18 ALE , 83 Y , 83 19 As Summers sub- Summers As 17 16 [Vol 95:1 [Vol They point to the successful to the successful They point 15 and suggest that the characteriza- the that suggest and They critique exclusive representa- exclusive They critique 13 14 ) 5/8/2020) 10:43 PM Court was correct in characterizing all public public all characterizing in correct was Court ELETE D OT OT CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT N O Janus PublicEmployee Bargaining: A Political Perspective Bargaining in the Government’s Business: Principles and Politics and Principles Business: Government’s the in Bargaining 1 EIC 5.5 (D ACRO ACRO . 265, 268 (1987). 268 (1987). . 265, A legal regime of exclusive representation and a duty to bar- and representation of exclusive A legal regime M 18 EV at 289–92. at 289–92. at 275. at 275. at 277. at 277. at 284–86. ALIN Id. Id. Id. Id. Id. L. R 160 160 7M They urge that the the that urge They The West Virginia teachers’ strike illustrates Summers’ points perfect- points Summers’ illustrates strike teachers’ Virginia West The Rather than illustrate that public sector unions’ route to success is to to is to success route unions’ sector public that illustrate than Rather OLEDO 17. Summers, W. Clyde 16. 16. sector collective bargaining as political as bargaining collective sector public are the people who consume and pay for the services provided by by provided services for the and pay consume who the people public are better and more desire public general the of Members employees. public and wages improved seeking employees Public costs. lower at services an inherent at are process political broader the through conditions working 18. Clyde Summers, Summers, Clyde 1156, 1159 (1974). 18. gain helps level that otherwise unequal playing field. Viewed in this con- this Viewed in field. playing unequal otherwise that level gain helps pay and who use parties the affects directly strike employee public a text, to reevalu- and payers users cause This can the services. for the employees’ in less workers by paying low taxes of keeping calculation the political ate services. workers’ those of loss the of effects direct the of light ly. For many years, elected officials were able to satisfy the public’s desire desire the public’s to satisfy able were officials elected many years, ly. For 14. 14. 15. 13. 13. sequently articulated it, “[p]ublic employees are always at risk that the the that risk at always are employees “[p]ublic it, articulated sequently political demandsfor low taxes andmore service will be placated at their expense.” operate outside the traditional labor relations legal framework, the West West the framework, legal relations labor the traditional outside operate As is needed. framework why that illustrates strike teachers’ Virginia general the of members ago, years forty-five articulated Summers Clyde whose public general the by are outnumbered they because disadvantage workers. to the contrary directly are interests economic T 2018 strike by teachers in West Virginia as evidence that unions can make make can unions that evidence as Virginia West in teachers by strike 2018 and overt self-mobilization through law the outside operating gains broad support. public scale large garner that appeals political tion, suggesting that members-only representation will result in a more more a in result will representation members-only that suggesting tion, inhibits representation exclusive that arguing and membership engaged pre- organizations worker of new establishment the prevents innovation, free exacerbates workers, of groups particular to interest of issues senting a getting from unions and prevents problems, action and collective rider support. majority gain they before foothold 19. tion is not limited to the public sector. to public the limited tion is not 42394-ckt_95-1 Sheet No. 84 Side B 06/12/2020 13:18:38 B 06/12/2020 84 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 85 Side A 06/12/2020 13:18:38 IMES IMES T Teacher Teacher , WTVQ 26 23 , N.Y. , N.Y. T In Oklahoma, 22 . (Oct. 11,2018) EV R (May8, 2018, 7:30 AM), L ’ IMES , NPR (Apr.25, 2018, 2:16 PM), AT T The threat of a strike pro- strike of a The threat Forced to confront the val- to confront Forced 24 20 EW , N N (Apr. 3, 2018), https://www.vox.com/ https://www.vox.com/ 2018), 3, (Apr. 161 161 Oklahoma Teachers Are Protesting Ten Years Years Ten Protesting Are Teachers Oklahoma OX , V HOENIX , P Oklahoma Teachers End Walkout After Winning Winning After Walkout End Teachers Oklahoma In Kentucky, a state-wide teacher strike strike teacher a state-wide Kentucky, In ) 5/8/2020) 10:43 PM 25 ALT LABOR? (Apr. 12, 2018), https://www.nytimes.com/2018/04/12 Moreover, how sustainable the mobilization mobilization the sustainable how Moreover, ELETE IMES 21 27 D T Year of the Strike the of Year OT OT N O , N.Y. in average teacher pay). teacher average in In West Virginia the Politicians Fail and the Teachers Rise the Teachers and Fail Politicians the Virginia West In The TeachersWon West Virginia Raises Teachers’ Pay to End State-wide Strike State-wide End to Pay Teachers’ Raises Virginia West th in the country at the time. the at country in the A Year After Teacher Strikes, Some LawmakersReady forFight th Teacher Walkouts: A State By State Guide State By State A Walkouts: Teacher 1 EIC 5.5 (D ACRO ACRO M Dana GoldsteinElizabeth & Dias, Lauren Peace, JessBidgood, Justin Roth, ALIN See See See See 2020] 7M Thus, the success of the strikes was uneven. They also resulted in con- in resulted also They was uneven. strikes the of success Thus, the Teacher strikes in other “red” states had varying success. In Arizona, a a Arizona, In success. varying had states “red” other in strikes Teacher policy-and-politics/2018/4/3/17191082/oklahoma-teachers-protest-pay [https://perma.cc/NFA9-24YE]. [https://perma.cc/NFA9-24YE]. policy-and-politics/2018/4/3/17191082/oklahoma-teachers-protest-pay Raises and Additional Funding elected officials cut taxes year after year resulting in reductions in school in school reductions in resulting year year after taxes cut officials elected school four-day to a move to districts school some caused that funding increase. a pay without years ten went who teachers and week https://www.nationalreview.com/magazine/2018/10/29/year-of-the-strike/ [https://perma.cc/MJW8- https://www.nationalreview.com/magazine/2018/10/29/year-of-the-strike/ ZWFA]. 25. siderable political backlash. political siderable 2018 threat to strike brought a promise by the governor of a 20% raise by by raise 20% of a governor by the a promise brought strike to 2018 threat more. gain to failed anyway but struck teachers 2020. The 26. Cory Turner, Cory [https://perma.cc/6KZN-SK62]. /us/oklahoma-teachers-strike.html 26. https://www.phoenixnewtimes.com/news/the-teachers-won-how-arizonas-strike-unfolded-10403354 https://www.npr.org/sections/ed/2018/04/25/602859780/teacher-walkouts-a-state-by-state-guide salaries ranked 50 ranked salaries 20. 20. to keep taxes low by making their teachers the fourth worst paid in the the in paid worst fourth the teachers their making low by taxes to keep 48 (ranking country (Mar.3, 2018), https://www.nytimes.com/2018/03/03/opinion/west-virginia-teachers-strike.html? https://www.nytimes.com/2018/03/06/us/west-virginia-teachers-strike-deal.html? 2018), 6, (Mar. ue of the teachers’ services, the state legislature and governor agreed to to agreed governor and legislature state the services, teachers’ ue of the by 5%. salaries teacher raise campaigns are, absent formal exclusive representation collective bargaining bargaining collective representation exclusive formal absent are, campaigns to be want employees most that likely is not It question. to is open rights, duced raises of $6,000 for teachers and $1,200 for support staff but the the but staff support for $1,200 and teachers for $6,000 of raises duced more. to gain failed strike actual action=click&module=RelatedCoverage&pgtype=Article®ion=Footer [https://perma.cc/PPL2- action=click&module=RelatedCoverage&pgtype=Article®ion=Footer GRXE]. 21. [https://perma.cc/6J6B-S3EF]. auth=login-email&login=email 24. Frederick M. Hess, Hess, M. Frederick 24. failed to reverse significant cuts to the teachers’ pension benefits. pension cuts to the teachers’ significant to reverse failed [https://perma.cc/4XMC-FPR9]. [https://perma.cc/4XMC-FPR9]. 27. (Mar.4, 2019), https://www.wtvq.com/2019/03/04/year-teacher-strikes-lawmakers-ready-fight/ 22. Joseph Flaherty, Flaherty, Joseph 22. [https://perma.cc/A7GG-E2WR]. [https://perma.cc/A7GG-E2WR]. 23. Alexia Fernandez CampbellKainaz & Amaria, of Low Pay: Here’s What Their Walkout Looked Like Looked Walkout Their What Here’s Pay: of Low [https://perma.cc/EP8U-2KCB]. [https://perma.cc/EP8U-2KCB]. 42394-ckt_95-1 Sheet No. 85 Side A 06/12/2020 13:18:38 A 06/12/2020 85 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 85 Side B 06/12/2020 13:18:38 29 HE HE T in , 28 64, 70 (Richard Bales & Char- & Bales (Richard 70 64, L.J. 903, 903 (2013); Martin H. H. Martin (2013); 903 903, L.J. [Vol 95:1 [Vol ALL H ENTURY (2010). (2010). C ST 21 . L.J.1369, 1370 (2009). SGOODE SGOODE ND RGANIZED Public Sector Innovations: Valuing Voice Valuing Innovations: Sector Public O , 50 , 50 O , 84 , 84 I ) 5/8/2020) 10:43 PM AW FOR THE AW FOR L ELETE D OT OT The Radical Guidebook Embraced by Google Workers and Uber Uber and Workers Google by Embraced Guidebook Radical The ABOR RGANIZING THE RGANIZING CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT N note2. O ,O U.S. L Examples of how public sector unions and employers and employers unions sector how public of Examples Elsewhere, I have proposed legal reforms that would would that reforms legal proposed have I Elsewhere, supra Collective Representation and Employee Voice in the United States Public Public States United the in Voice Employee and Representation Collective 31 33 note18, at272. RIOVICH 1 EIC 5.5 (D A (Oct. 10, 2019), https://www.nytimes.com/2019/10/10/business/economy/labor- supra Noam Scheiber, And workers place a high value on having vehicles for their their for vehicles on having value a high place And workers ACRO ACRO IMES AURA T ANDBOOK OF M 32 L Serving as a vehicle for worker voice in labor-management part- in labor-management voice worker for a vehicle as Serving Ann C. Hodges & Martin H. Malin, Malin, H. Martin & Hodges C. Ann Kochan et al., H at 70–72. at 70–72. 34 ALIN See But see But See Id. See , N.Y. The Paradox in Public Sector Labor Law Labor Sector in Public Paradox The 162 162 7M Many issues that affect the quality of day-to-day working life are are life working of day-to-day quality the affect that Many issues Unions add value to the provision of public services by serving as a a as by serving services public of the provision to value Unions add 30 AMBRIDGE AMBRIDGE 30. 30. simply not amenable to political mobilization. Indeed, a second reason for for reason a second Indeed, mobilization. political to amenable not simply protect “to is by Summers urged bargaining collective employee public work- disagreeable generate which controls bureaucratic against employees condi- action—essentially arbitrary oppressive and permit ing conditions unconcerned.” largely and is uninformed the electorate of which tions have partnered to bring about dramatic improvements in public services services public in improvements dramatic about to bring have partnered and libraries public education, public government, the federal abound in elsewhere. Malin, Malin, vehicle for employee voice. High performance workplaces, where workers workers where workplaces, performance High voice. employee for vehicle or artistic, the craft, and operations efficient employer’s their in have a say work- than traditional efficient more work are of their aspects professional non- their outperform workplaces high-performance and unionized places, voices to be heard. be to voices 29. Summers, Summers, book.html [https://perma.cc/XAB4-SAHA]. 29. C 28. 28. continuously mobilized for political or class-based fights. The Knights of of Knights The fights. class-based or political for mobilized continuously success. sustainable of models hardly are IWW and the Labor of the distribution days, personal of denials arbitrary alleged with Dealing the take who wish to employees among conflicts resolving and overtime business service-oriented of potatoes and meat the are days vacation same that is it Yet, from. away move a urge Matheny and Crain that unionism working daily employees’ improve significantly can that orientation service its of much too shifts union a when that evidence is there Indeed, lives. organizing toward and membership the servicing from away resources mem- its of trust the lose to tends union the unit, bargaining the outside bers. Drivers 31. 31. codify and institutionalize the exclusive bargaining representative’s role as as role representative’s bargaining exclusive the institutionalize and codify bar- of subjects mandatory traditional beyond voice worker for a vehicle gaining. lotte Garden eds. 2019). eds. Garden lotte 32. 34. Martin H. Malin, Malin, H. Martin 33. 34. union counterparts. Sector Workplace: Looking North for Solutions? for North Looking Workplace: Sector 42394-ckt_95-1 Sheet No. 85 Side B 06/12/2020 13:18:38 B 06/12/2020 85 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 86 Side A 06/12/2020 13:18:38 42 35 O D ? 20–22? (1985) (summa- O D Productivity suffers, suffers, Productivity , economists Richard Richard , economists TILL 44 S NIONS U O D NIONS U HAT HAT 163 163 ,W Unions increase productivity through through productivity increase Unions EDOFF 43 ) 5/8/2020) 10:43 PM In economic downturns, they replace ter- replace they downturns, economic In What Do Unions Do? What Do Unions ALT LABOR? By providing workers with an institutional institutional an with workers providing By L. M 39 RADITIONAL 38 Unions have had mixed success when it it success when Unions have had mixed ELETE T 45 D AMES AMES Overall, they reduce inequality in the distribu- in the inequality reduce they Overall, OT OT 37 N HAT &J O Unions shift the compensation package from cash cash from package the compensation Unions shift W 36 They negotiate for rules, such as seniority-based deci- such as seniority-based rules, for They negotiate III. 40 REEMAN 1 EIC 5.5 (D B. F ACRO ACRO M at 165-72. at at 176-79. at 176-79. at 136-49. at 136-49. at 122-33. at 122-33. at 78-93. at 78-93. 103-10. 95-96, at at 112-21. at 48-50. at 48-50. at 64. . at . at 150-61. ICAHRD ALIN Id. Id. Id Id. Id. Id. Id. Id. Id. Id. 2020] 7M In their classic 1984 work, 1984 their classic In The union-threat effect raises the wages of blue-collar workers in in workers of blue-collar the wages raises effect The union-threat 41 45. 45. 44. 44. 42. 42. 43. Freeman and James Medoff found twelve key effects of labor unions. of labor effects key twelve found Medoff James and Freeman 41. 41. lower turnover rates, improve managerial performance in response to union union to response in performance managerial improve rates, turnover lower relations. labor-management cooperative and effects, voice, unions reduce turnover. reduce unions voice, tion of wages among workers. tion of among wages minations with temporary layoffs, followed by recalls instead of new hires, of new hires, instead by followed recalls layoffs, with temporary minations improve. as times non-union firms but does not affect non-unionized white-collar workers. white-collar non-unionized not affect does but firms non-union 38. 38. 39. 40. Unions galvanize worker discontent to strengthen their positions in bar- positions their to strengthen discontent worker Unions galvanize than job satisfaction less reporting workers in unionized resulting gaining, counterparts. non-unionized their R 35. Unionization produces a union wage premium resulting from the union’s union’s the from resulting premium wage a union produces Unionization for particularly representative, bargaining the exclusive as status monopoly and organized in heavily and workers junior and younger, educated, less industries. regulated nerships is consistent with the traditional model of business unionism but but unionism business of model the traditional with consistent is nerships Publicizing membership. the engaging without successfully done be cannot help may services public improved have partnerships successful how such forward a path is It rights. bargaining collective on workers attacks defeat pursued. be should that wages to fringe benefits. to fringe wages however, when labor-management relations are poor. Unions reduce profit- reduce Unions poor. are relations labor-management when however, their than on capital of return rate a lower earn firms unionized as ability counterparts. non-unionized sions, that reduce management subjectivity but also management flexibil- management but also subjectivity management reduce that sions, ity. rizing findings). findings). rizing 36. 37. 42394-ckt_95-1 Sheet No. 86 Side A 06/12/2020 13:18:38 A 06/12/2020 86 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 86 Side B 06/12/2020 13:18:38 52 50 According to to According 48 Once recognized as as recognized Once 51 [Vol 95:1 [Vol (2014). (2014). O Union members are guaranteed are guaranteed members Union D 53 of their legislative success in en- success legislative their of ONGER ONGER L O ) 5/8/2020) 10:43 PM Low wage workers and workers lacking a a lacking workers and workers wage Low N 49 ELETE D NIONS OT OT U 47 CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT N O HAT Unions tend to be highly democratic institutions, es- institutions, democratic be highly tend to Unions ,W 46 1 EIC 5.5 (D OSENFELD ACRO ACRO R M at 191-206. at 191-206. at 210-13. at 74-79. at 74-79. at 163-81. AKE ALIN Id. Id. Id. Id. 164 164 7M Thirty years later, sociologist Jake Rosenfeld chronicled the decline in in the decline chronicled Rosenfeld Jake sociologist later, years Thirty When one views the dramatic decline in union density and its impact impact its and density in union decline dramatic the views one When the democratizing for vehicle dominant the remains labor Traditional 48. J 48. college education have been particularly hard hit in many ways. Opportuni- many in hit hard particularly been have education college the mediating no institution is and there eroded, have for advancement ties vulnerable most the on change technological and automation of effects en- civic of a decline in resulted has also of unions The decline workers. been has there Overall, workers. lower-paid educated less among gagement employers. toward and workers from away power in shift a dramatic 51. Int’l Ladies Garment Workers Unionv. NLRB,366 U.S.731,738 (1961). union density and the erosion of the union wage effect. union the of erosion the and union density exclusive representatives, unions have a duty to represent all workers in the the in workers all represent to a duty have unions representatives, exclusive representation. union who oppose those including fairly, unit bargaining Rosenfeld, unions no longer influence the compensation paid to non-union non-union to paid compensation the influence longer no unions Rosenfeld, wage to forestalling confined largely unions sector private with workers, members. their among declines pecially at the local level. local the at pecially on employees’ working lives, it is easy to understand the shift in attention in attention the shift to understand is easy it lives, working on employees’ of lose sight not should we However, unions. to traditional to alternatives functions important the of many perform still unions traditional that the fact state. weaker in their even chronicled, Medoff and Freeman that must unions representatives, bargaining as exclusive To serve workplace. in workers the of majority by a selected or designated fairly and be freely representa- exclusive to grant for employers illegal is It unit. the bargaining support. who lack majority to unions tion recognition 47. 47. 46. 46. Unions are legally required to run their organizations democratically. Un- democratically. organizations to run their required Unions are legally office, union for candidates nominate to rights equal have members ion meet- in membership and participate attend referenda, and in elections vote meetings. membership in and vote ings, comes to political influence with much with influence political to comes or unions just than rather a whole as workers benefit that laws of actment workers. unionized 49. 49. 50. 177 171, U.S. 386 Sipes, v. Vaca (1991); 75 65, U.S. 52. 499 O’Neill, v. Ass’n Pilots Line Air (1967); HumphreyMoore, v. 375335, U.S. 342 (1964); FordMotorCo. Huffman,v. 345 U.S. 330, 337 (1944). 202 192, U.S. 323 RR, Nashville & Louisville v. Steele (1953); 53. (2018). 411(a)(1) § U.S.C. 29 42394-ckt_95-1 Sheet No. 86 Side B 06/12/2020 13:18:38 B 06/12/2020 86 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 87 Side A 06/12/2020 13:18:38 . 55 . 2 . 2 AB L NST I Y Union ’ 60 T OL ’ Local un- Local The union The union EP .P . (May 2018), 2018), . (May 54 D 65 CON A wide varie- DUC 62 61 , E Nationals and inter- and Nationals .&E Candidates have the the have Candidates 56 ES 59 , U.S. .R Unions and employers are are and employers Unions AB 58 .L TR 165 165 C Union members have the right to to right have the Union members 57 How Unions Help All Workers ERKELEY ) 5/8/2020) 10:43 PM B ALT LABOR? The Union Effect in California #1: Wages, Benefits and Use Use and Benefits Wages, #1: California in Effect Union The ELETE D , UC OT OT Median Weekly Earnings of Full-time Wage and Salary Workers by N O A recent report from the UC Berkeley Center for Labor Labor for Center the UC Berkeley from report A recent 1 EIC 5.5 (D 64 ACRO ACRO The reduction in union representation rates since then has likely likely has then since rates representation union in reduction The M 63 § 481(c). § 481(c). § 501. § 481(a). § 481(a). § 481(e). § 481(e). § 481(g). § 481(g). § 481(d). § 481(d). § 411(a)(2). § 481(b). at 2–4. at 2–4. ALIN Id. Id. Id. Id. Id. Id. Id. Id. Id. 2020] 7M In the private sector, the union-wage effect may be weakened, but it it but weakened, be may effect union-wage the sector, private the In 62. LawrenceMishel Matthew & Walters, 60. 60. 61. 57. 57. 58. 58. 59. 59. right to have the union distribute their literature at their expense. their at literature their distribute the union to have right 56. 56. ions must elect their officers by secret ballot at least every three years. three every least at ballot secret by officers their elect must ions nominate candidates, run for office, and vote. and office, run for candidates, nominate ty of studies have estimated the union wage effect as being between 10% 10% between being as effect wage union the estimated have studies ty of and 20%. http://laborcenter.berkeley.edu/pdf/2018/Union-Effect-in-California-1.pdf [https://perma.cc/79WA- http://laborcenter.berkeley.edu/pdf/2018/Union-Effect-in-California-1.pdf officials owe fiduciary duties to the union and its members. its and union the to duties fiduciary owe officials effect continues to extend to fringe benefits. The California study found found study The California benefits. to fringe to extend continues effect cov- be to likely more 37.2% were workplaces unionized in workers that situated similarly than plan insurance health employment-based an by ered nationals must elect their officers at least every five years by secret ballot ballot secret by years five every least at officers their elect must nationals ballot. by secret selected or delegates 54. 54. 55. the freedom of speech and assembly in internal union affairs. union in internal assembly and of speech the freedom by years four every least at officers their elect must bodies Intermediate ballot. by secret elected by delegates or ballot secret prohibited from financing candidates’ campaigns. candidates’ financing from prohibited Union Affiliation and Selected Characteristics 64. U.S.Bureau Lab.Stats., Research and Education found that, in California, union-represented work- union-represented in California, that, found Education and Research similar with workers than non-union more 12.9% of average an ers earn industries. similar in and working characteristics demographic (Aug. 2003), epi.org/files/page/-/old/briefingpapers/143/bp143.pdf [https://perma.cc/6QEY-76R6]. [https://perma.cc/6QEY-76R6]. epi.org/files/page/-/old/briefingpapers/143/bp143.pdf 2003), (Aug. reduced the union wage effect, but it has not eliminated it. According to the to the According it. eliminated not has it but effect, wage the union reduced earned employees union-represented in 2018, Statistics, Labor of Bureau repre- for non-union $860 to $1,042 compared of wages weekly median workers. sented https://www.bls.gov/news.release/union2.t02.htm[https://perma.cc/HW98-GM7V]. 65. Thomason, Sarah & Jacobs Ken of Public Safety Net Programs Net Safety of Public WGMH]. 63. 63. remains. The Economic Policy Institute found in 2003 that unions raised raised unions that in 2003 found Institute Policy The Economic remains. 28%. by compensation overall and 20% by wages workers’ 42394-ckt_95-1 Sheet No. 87 Side A 06/12/2020 13:18:38 A 06/12/2020 87 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 87 Side B 06/12/2020 13:18:38 [Vol 95:1 [Vol 67 ) 5/8/2020) 10:43 PM ELETE D OT OT It also found that unionized workers were 51.5% were 51.5% workers unionized that It also found CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT N O 66 note18. 1 EIC 5.5 (D supra ACRO ACRO M at 3. at 3. at 4. As an example, consider scheduling. scheduling. consider an example, As ALIN Id. Id. 68 166 166 7M Service-oriented business unions continue to negotiate for rules that that for rules to negotiate continue unions business Service-oriented The collective bargaining agreement, however, did not allow man- allow not did however, agreement, bargaining The collective Several years ago, I presided in an arbitration between a hotel and the the and a hotel between an arbitration in presided I ago, years Several protect workers from management’s subjective decision-making and, by by and, decision-making subjective management’s from workers protect manage- incentivize and workers protect flexibility, management reducing resistance. least of path the taking of instead solutions creative to find ment employees protect “to continue unions Summers, Clyde of the words In condi- working disagreeable generate which controls bureaucratic against tions.” 68. Summers, Summers, 67. 68. 66. 66. non-unionized workers. non-unionized more likely than similarly situated non-union workers to have access to an to an access to have workers non-union situated similarly than likely more plan. retirement employment-based union that represented its employees. The arbitration was over management management was over arbitration The employees. its represented that union for demand greatest The service. room in work unit bargaining performing fluctuate can demand the Furthermore, breakfast. at by far is service room breakfast, serving hotel the in conferences occupancy, hotel on based daily, begins probably workers service room for need The weather. the and even 6:00 at begin probably that of orders the rush for up to set a.m. around 5:00 the and progresses morning the as increases for workers need a.m. The down to probably is need the a.m., but by 10:00 increase, of orders number workers to schedule is resistance path of least The if any. a few workers, for set-up, be they needed will anticipates as management for as few hours five for scheduled would be a worker At most, and clean-up. delivery, hours. fewer for be scheduled will and many a.m.) 10:00 to (5:00 hours may be home. Others sent be will workers unneeded declines, When need notice. little with very in if needed to on come call a for had negotiated The union resistance. least of path the take to agement management allow not did contract work. The of hours eight of guarantee man- allow however, did, It hours. eight than fewer for workers to schedule after Consequently, tasks. other workers service room to assign agement to the tended workers service room many rush, service room the morning for work did set-up lobby, in its guests offered hotel the refreshments in hotel holding they were meetings for ordered had guests that lunches man- Denying tasks. related and other suites, their and in rooms meeting effi- to find management incentivized resistance of least path the agement home. sent just have would it otherwise that personnel of uses cient an eight- resist strongly would the employer that recognition Moreover, 42394-ckt_95-1 Sheet No. 87 Side B 06/12/2020 13:18:38 B 06/12/2020 87 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 88 Side A 06/12/2020 13:18:38 69 167 167 (Feb. 21, 2017), https://prospect.org/labor/unions- ) 5/8/2020) 10:43 PM ALT LABOR? ROSPECT .P ELETE M D OT OT , A N Unions in the Precarious Economy: How Collective Bargaining Can Can Bargaining Collective How Economy: Precarious the in Unions O 1 EIC 5.5 (D ACRO ACRO M ALIN 2020] 7M As union density has declined, more workers are at the mercy of em- of mercy the at are workers more declined, has density As union The hotel used scheduling software to forecast how many room ser- many room how to forecast software The scheduling hotel used Another example comes from the airline industry. As related by Kath- by related As industry. airline the from comes example Another ployers taking the path of least resistance to scheduling. This has fueled a a fueled This has to scheduling. resistance of least path the taking ployers solu- one-size-fits-all Such statutes. and ordinances scheduling fair for call unions by traditional negotiated solutions the to inferior inherently are tions But workplace. the specific of needs to the tailored are that and employers to helpful to be very likely not are they enacted, are statutes such even if regu- work of aspects all In enforced. or respected not are they if workers their of aware be to likely more are workers unionized statute, by lated to likely more are employers and rights, those to assert rights, statutory rights. those respect precarious-economy/ [https://perma.cc/VK94-2AHE]. [https://perma.cc/VK94-2AHE]. precarious-economy/ 69. Katherine V.W. Stone, Help Gig and On-demand Workers On-demand and Gig Help hour work guarantee incentivized the union to agree on additional tasks that that tasks additional on to the agree union incentivized hour work guarantee break- morning the after workers service room to assign could management rush. fast contract (The schedule. the weekly day on each need would it vice workers the of day specified a by schedules weekly to post management required prior week.) The software worked well, but on occasion, management’s management’s occasion, on but well, worked software The week.) prior circum- those up. In backed orders service room and low, too was forecast to as- to called the kitchen over the hotel were all from managers stances, rooms. guest to delivery and trays service room of preparation with sist the because me before arbitrated was that grievance the prompted That work unit bargaining perform not could managers that provided contract shortages these whether was me before issue The in emergencies. except hotel the that awarded and not did they held I emergency. an to amounted not had management scheduled been have would who employees pay the unionism business service-oriented traditional Again, work. the performed resistance. of least path the management denied schedule negotiated have airlines and unions attendant flight Stone, erine schedule of rosters prepare Airlines 1940s. the to dating procedures bidding segments of flight series many containing each month, each assignments include assignments Some base. home attendant’s the at end and begin that Flight guarantee. hour a minimum on call with is attendant the that periods on seniority. based schedules the for bid attendants 42394-ckt_95-1 Sheet No. 88 Side A 06/12/2020 13:18:38 A 06/12/2020 88 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 88 Side B 06/12/2020 13:18:38 , The , The . 651,654 ILLIONS EL B .R 75 TEAL . 20, 34 (1991). 34 (1991). . 20, NDUS S A study found found A study EL 70 Workers’ Compensation Compensation Workers’ .R , 47 I . 213,213 (1997). and unemployment and unemployment EV 72 Traditional labor still still labor Traditional NDUS .R MPLOYERS 76 EL [Vol 95:1 [Vol ., E , 30 I .R : A New Approach New: A fromManagement NST AB I Terry Meginniss& Paul Salvatore Pyett As Mishel and Walters explain: explain: Walters and As Mishel See See .&L 74 OLICY 271 (2013). 271 e enforcement of regulations can- of regulations e enforcement .P or injury. In practice, the effective- practice, In or injury. NDUS reporting an abuse or filing a claim. a claim. filing or abuse an reporting Unionized workers are more likely to to likely more are workers Unionized CON . 478,478 (1997). 71 , 50 , 50 I The Effect of Unions on the Receipt of Unemployment of Unemployment Receipt the on Unions of Effect The ,E nd the necessary procedures, but also by by but also procedures, nd the necessary ) 5/8/2020) 10:43 PM 989, 994 (2016). (2016). 994 989, EV 27–28 (May 10, 2017), https://www.epi.org/files/pdf/ https://www.epi.org/files/pdf/ 2017), 10, (May 27–28 RBITRATORS .R , 556, U.S.247 (2009). Theparties maintainthat their systemof ELETE EL .A EALTH D ROEGER EAR .R K Y OT OT .H CAD note62,at 11. A significant example oftraditional business union- CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT N AB A UB O The Role of Labor Unionsin Creating Working Conditions ThatPro- ACH L ’ E ERESA supra .&L .J.P AT M &T Unionsas Facilitators ofEmployment Rights: AnAnalysis of Individuals’ .N NDUS TG Enforcing OSHA: The Role of Labor Unions of Labor Role The OSHA: Enforcing Enforcement of the Occupational Safety and Health Act Act Health and Safety Occupational the of Enforcement 1 EIC 5.5 (D 73 .M , 106 A , 106 AYCHECKS OOPER , 50 I C ACRO ACRO NN ’P M Barry Y. Hirsch, DavidMacpherson A. Michael & J. DuMond, 14 Penn Plaza, LLC v. Pyett LLC Plaza, Penn 14 AVID 66 A ALIN See See ORKERS 168 168 7M Collective bargaining agreements play a role in advancing public public advancing in role a play agreements bargaining Collective For example, unionized workers are half as likely as their non-union non-union their as likely as half are workers unionized For example, facilitating action by limiting employer correcting disinfor- reprisals, mation, aggregatinga multiple claims, providing to resources make workers. of behalf on disputes to solutions negotiating and claim, not monitor every workplace nor automate the issuance of insurance of insurance issuance the automate nor workplace every monitor not unemployment claims resulting from de- worker’s on the depends protections labor of of implementation ness by either done is to act. This cision relevant the workers giving by aspect this in crucial been have Unions a their rights about information Government agencies charged with th charged agencies Government W access to healthcare, workplace safety culture, training and mentorship, mentorship, and training culture, safety workplace healthcare, to access democratic family, and friends with time to ensure scheduling predictable management.” with and engagement participation Forum for Litigation of Statutory Employment Claims After After Claims Employment Statutory of Litigation for Forum Labor, and mote Public Health 76. Jenn Hagedorn etal., health. A recent study found “that union contract language advances many many advances language contract union “that found study A recent health. off, time security, income, including of health, determinants social of the counterparts to be victims of minimum wage violations. wage of minimum victims be to counterparts (2008). 72. that between 1996 and 2000, unionized workers were significantly more more significantly were workers unionized 2000, and 1996 between that Act Leave Medical and Family the under rights their of aware to be likely counterparts. non-union their than 70. D 70. ism working cooperativelymanagement with to provideeffective for enforcementofnon- discrimination rights is the system established by Local SEIU 32BJ and theRealty before Advisory issue Board at was that City) York New in managers and owners building unionized represents (which in Court the 75. Mishel & Walters, Walters, & Mishel 75. a forum provides claims, discrimination statutory workers’ arbitrating if necessary, and, mediating the in brought be never would which workers wage low these of claims resolves effectively which value. dollar low of their because system legal regular FROM take advantage of workers’ compensation benefits compensation of workers’ advantage take compensation. Insurance Benefits Insurance 73. McCall, P. Nrian & Budd W. John 71. Amit Kramer, Kramer, Amit [https://perma.cc/9RQR-BY6]. 125116.pdf 71. Awarenessof Parental Leavein the National Longitudinal Survey of Youth increases significantly with unionization. with significantly increases 74. Weil, David Recipiency in Union and Nonunion Workplaces Nonunion and Union in Recipiency 42394-ckt_95-1 Sheet No. 88 Side B 06/12/2020 13:18:38 B 06/12/2020 88 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 89 Side A 06/12/2020 13:18:38 2 79 .& OL REAM D , 33 P DGE OF THE DGE OF THE E (Jan. 29, 2013), 2013), 29, (Jan. 80 ? AP G ROSPECT Unpaid wages is by far the the far by is wages Unpaid .P 84 M ILL THE F OMMUNITIES AT THE 169 169 , A C ABOR Worker Centers: Labor Policy and a Carrot, Not a a Not a Carrot, and Policy Labor Centers: Worker L but see Worker Group that Took on Targetis Union, RGANIZING RGANIZING ) 5/8/2020) 10:43 PM Alt Labor Alt LT ALT LABOR? . (Nov. 19, 2019) (reporting that the U.S. Department of of Department the U.S. that (reporting 2019) 19, . (Nov. :O A EP ELETE D .R AN s” which led to the unionization of janitorial contractors is a labor labor a is contractors s” janitorial of unionization the to led which OT OT e AB C ENTERS (2018),https://www.arisechicago.org/history [https://perma.cc/BLF N . 601 (2019); L C O EV IV. R AILY Y HICAGO ’ When employers found liable refused to pay, Work- pay, to refused liable found employers When ORKER note 79. 79. note C , D 81 OL Community Unions and the Revival of the American Labor Movement ,W 1 EIC 5.5 (D , Josh Eidelson, Eidelson, , Josh RISE supra INE F , A ACRO ACRO .L.&P Janice Fine’s landmark study found that 56% of worker centers centers of worker 56% that found study landmark Janice Fine’s In 2013, it was reported that the Restaurant Opportunities Cen- Opportunities the Restaurant that reported was 2013, it In M 77 Kati L. Griffith & Leslie C. Gates, Gates, C. Leslie & L. Griffith Kati 82 at 20–21. at 20–21. ARV ANICE ALIN Worker centers have recovered unpaid wages for many low wage wage low many for wages unpaid recovered have centers Worker Arise Chicago reports that, in its existence, it has recovered more more has recovered it existence, its in that, reports Chicago Arise Id. Id. History See, e.g. See, See 78 83 2020] 7M When we think of alt labor, we think of worker centers that are at the the at are that centers worker of think we labor, alt of think When we For example, the Workplace Project in Hempstead, New York, in its its in York, New Hempstead, in Project Workplace the For example, 153, 165 (2005). (2005). 165 153, Y , 14 , 14 H ’ OC 81. Janice Fine, Janice organization). 81. core of alternatives to traditional labor unions. “Worker centers are com- are centers “Worker unions. labor traditional to alternatives core of to low support wage that provide institutions mediating munity-based workers.” place Project would picket them at their homes, a tactic that could be very very be could that tactic a homes, at their them would picket Project place effective. 5-773R]. Labor has determined that Centro de Trabajadores Unido en Lucha which pressured big box retailers to to retailers box big pressured which en Lucha Unido Trabajadores de Centro that determined has Labor adopt “responsible contractor polici were industry-specific, while 44% were focused on specific geographic geographic specific on focused were 44% while industry-specific, were areas. (2006). 78. 83. Eidelson, Eidelson, 83. 84. 82. 82. https://prospect.org/notebook/alt-labor/ [perma.cc/3TCS-8XPN] (describing actions of the Restaurant Restaurant of the actions (describing [perma.cc/3TCS-8XPN] https://prospect.org/notebook/alt-labor/ S 79. 79. 77. J 77. Because worker centers are not labor organizations, they are able to engage engage to able are they organizations, labor not are centers worker Because not. are unions that boycotts, secondary as such in tactics, plays a vital role in the well-being of American workers. The question aris- question The workers. American of well-being the in role vital a plays approximately the for way a similar in the gap fill can labor alt es whether the next in to this turn I union representation. who lack 90% of workers part. Labor Department Says than $6,300,000 for more than 4,000 workers. 4,000 than more for $6,300,000 than first seven years of existence recovered over $562,000 for workers in back back in workers for $562,000 over recovered existence of years seven first benefits. pay and workers. They have done so through litigation but also through demonstra- through also but litigation through so done have They workers. to the offender. applied and pressures other shaming, boycotts, tions, Opportunities Center). Center). Opportunities 80. ter (ROC) had recovered $6,500,000 in back wages since its inception in in inception its since wages back in $6,500,000 recovered had (ROC) ter 2001. Stick 42394-ckt_95-1 Sheet No. 89 Side A 06/12/2020 13:18:38 A 06/12/2020 89 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 89 Side B 06/12/2020 13:18:38 92 Such acts of small small of Such acts 87 [Vol 95:1 [Vol But even there, they seem to to seem they there, even But 90 . J. 104,110 (2018). And moving beyond enforcement of of enforcement beyond And moving TUD 91 .S Indeed, most worker centers operate on on operate centers worker most Indeed, s moving forward. They are stopgap are stopgap They forward. moving s 86 AB ) 5/8/2020) 10:43 PM already occurred. They are not about estab- about are not They already occurred. ELETE , 43 , 43 L D OT OT CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT N O 85 note 77, at 73 (reporting, for example, that at the Korean Immigrant Workers Workers Immigrant Korean the at that example, for (reporting, 73 at 77, note Constituting Challenges in Differing Arenas of Power: Worker Centers, the the Centers, Worker Power: of Arenas Differing in Challenges Constituting note 79. 79. note 1 EIC 5.5 (D note 77, at 77. 77. at 77, note supra supra , 88 ACRO ACRO (“‘When you have these agreements,’ [Cornell’s Kate Bronfenbrener] says, ‘they don’t don’t ‘they says, Bronfenbrener] Kate [Cornell’s agreements,’ these have you (“‘When supra INE M , F at 49. at 49. Some larger scale organizations like ROC have parlayed wage wage ROC have parlayed like organizations scale larger Some INE ALIN Id. 89 See Id. See id. See Id. 170 170 7M Worker center accomplishments in bringing wage thieves to justice justice to thieves wage in bringing accomplishments center Worker The demand for legal services can overwhelm a worker center, and and center, a worker overwhelm can services legal for The demand One way in which worker centers succeed is by fostering alliances alliances fostering is by succeed centers worker way in which One lishing contracts or rules for future work or altering power relations, nor nor relations, power or altering work future for or rules contracts lishing collective right are they about measures. Not to diminish what back pay means to an individual low-wage worker, worker, low-wage individual an to means pay back what diminish to Not resolu- short-term individualized, part, most the for are, solutions the but that have tion to violations 87. Tom Juravich, Juravich, Tom 87. Organizing Union and Fifteen for Fight enforcement actions into broader agreements with some employers that that employers some with agreements broader into actions enforcement procedures. grievance and benefits provide are impressive, but they cannot substitute for traditional labor unions. For For unions. labor traditional for substitute cannot they but are impressive, for demand the handle to capacity the lack centers worker most one thing, outreach the limit to have centers worker “Some theft. wage against action especially services, for demand the satisfy cannot they because they do claims.” wage unpaid with filing accumulate individual victories rather than sustained institutions for better- for institutions sustained than rather victories individual accumulate lives. working constituents’ ing their a work- raised you’ve “[o]nce because is difficult standards minimum politi- enlist to harder it’s to acceptable, outrageous from standards place’s progress.” for further in a campaign or consumers cians Advocates, 86% of the disputes that the center handled were wage-related). 86. some workers will not stay involved after their claims have been re- have been claims their after involved not stay will some workers solved. 85. 85. most common complaint that workers bring to worker centers and is often is often and centers to worker bring workers that complaint common most one. the predominant with public enforcement agencies. Such alliances, however, are at the mer- the at are however, alliances, Such agencies. enforcement public with 90. Eidelson, Eidelson, 90. 91. justice, although important, do not lead to sustainable vehicles for improv- for vehicles to sustainable lead do not important, although justice, observes, As Juravich lives. employment ing workers’ a much smaller scale than groups like Arise Chicago and ROC. They seek seek and ROC. They Chicago Arise like groups than scale smaller a much justice.” “small calls Juravich Tom what and obtain 89. F 88. 89. keep organizing.’ Thus, ‘they’ll have to keep fighting the same fight every time a new employer comes comes employer new a time every fight the same fighting to keep have ‘they’ll Thus, organizing.’ keep 92. in or a new supervisor comes in . . . unless they actually get unionized.’”). unionized.’”). get actually they unless . . . in comes supervisor new a or in 42394-ckt_95-1 Sheet No. 89 Side B 06/12/2020 13:18:38 B 06/12/2020 89 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 90 Side A 06/12/2020 13:18:38 , N 2 :A EPORT 98 R RGANIZATION RGANIZING O O Union mem- Union 100 OUNDATION NION NION ORKER F U Reliance on foun- on Reliance :W 95 This is in contrast to to contrast in This is Reliance on founda- on Reliance LL 99 97 A ENTURY ENTERS IN ENTERS , C ITS Worker centers appear to to appear centers Worker C F 94 Reliance on foundation sup- on foundation Reliance IZE 96 S 93 ORKER 171 171 NE Organizingthe State:“New The Labor Law” W Sizing Worker Up Center Income (2008-2014): . L. 415, 450 (2018). O 39, 44–49 (Janice Fine et al. eds. 2018). 2018). eds. et al. Fine (Janice 39, 44–49 O MP GE , N 101 OLE OF OLE A R .&E ) 5/8/2020) 10:43 PM AB ALT LABOR? J. L ELETE CONOMIC D MERGING E . OT OT E N EW O HE HE N ERKELEY ERKELEY ,T note 77, at 254. Organizing’sBusiness Model Problem 13 (Dec.2017), 6, https://www.uschamber.com/report/the-emerging-role- , 39 , 39 B supra , ANHEIM 1 EIC 5.5 (D note 77, at 255. Indeed, a recent study showed that worker centers, regardless of of regardless centers, worker that showed study a recent Indeed, 255. at 77, note note 77, at 255 at 77, note 255. at 77, note notes 53-60 and accompanying text. text. accompanying and 53-60 notes INE B. M ACRO ACRO supra supra supra UPPLEMENT OVEMENT FOR A M , , , S Shayna Storm, M at 14. at 14. at 4; F 4; at INE INE INE ACOB ALIN See supra See Id. Id. 2020] 7M Most worker centers view membership as a privilege that must be be must that privilege a as membership view centers worker Most A major limitation for most worker centers is their dependence on on dependence their is centers worker most for limitation A major In contrast to unions that are run by democratically elected officers, officers, elected democratically by run are that unions to contrast In PDATE AND OLICY AND 96. J 96. 94. 94. 100. F 100. 101. port is unpredictable, making planning challenging. planning making unpredictable, is port earned, and consequently, few regularly collect dues. collect regularly few consequently, and earned, 98. F 98. bership rights promotes accountability of union leaders and staff to the the to staff and leaders union of accountability promotes rights bership for signifi- not to ask tend centers worker because contrast, In membership. to up face to have “never they themselves, workers the from support cant by valued and communities their in situated deeply how of the question are.” really they constituencies their foundations for funding. A 2006 study found that worker centers received received centers worker that found study 2006 A funding. for foundations dues. member from budgets their of only 2% tion support also means that worker centers are constantly on the lookout lookout on the constantly are centers worker that means also tion support that programs or activities adding sometimes support, of for new sources grant. a particular for eligible to become than other sense little make dations appears to be growing. The Chamber of Commerce reported that that reported of Commerce The Chamber growing. to be appears dations but centers, worker to $55,398,000 gave foundations to 2012, 2009 from $106,333,100. gave they 2016, to 2013 from U 93. Marzán, Rosado César & M. Oswalt Michael Seenfrom the Bottom-Up cy of political changes. For example, when a Republican was elected gov- elected was a Republican when example, For changes. political cy of Illinois supportive the previously of approach the in 2014, in Illinois ernor considerably. of changed Labor Department P most worker centers are organized as not-for-profit corporations run by run by corporations not-for-profit as organized are centers worker most (Oct. 26, 2016), https://tcf.org/content/report/organizings-business-model-problem/ [https://perma.cc/U [https://perma.cc/U https://tcf.org/content/report/organizings-business-model-problem/ 2016), 26, (Oct. 6MW-5EEL]. 99. 99. A Study of Revenue, Size, Stability and Streams and Stability Size, of Revenue, A Study size, have very uneven revenues. Leslie C. Gates et al., al., et Gates C. Leslie revenues. uneven very have size, traditional unions where membership is obtained by being in a bargaining bargaining in a by being is obtained membership where unions traditional union membership And dues. and paying by the union represented unit affairs. union in vote and participate to rights with comes get more than 60% of their budgets from foundations. from budgets their of 60% than more get 95. 95. worker-centers-union-organizing-update-and-supplement [https://perma.cc/KXL6-2BE4]. 97. F 97. 42394-ckt_95-1 Sheet No. 90 Side A 06/12/2020 13:18:38 A 06/12/2020 90 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 90 Side B 06/12/2020 13:18:38 NY (Jan. , http://ciw- There are are There 107 OICES OF 3 (Oct. 3, 2019), ORKERS , V W , http://www.fairfoodstandard , http://www.fairfoodstandard OUNCIL C , http://ciw-online.org/fair-food- [Vol 95:1 [Vol OUNCIL MMOKALEE C I ORKERS W TANDARDS S The program includes a code of of code a includes The program TANDARDS 106 S OODS MMOKALEE F I OALITION OF OODS OODS ) 5/8/2020) 10:43 PM Of course, as the current scandal reaching reaching scandal current the as Of course, F AIR AIR , C 102 F note106, at 11. ELETE AIR F D , , OT OT The Fall of Long Island’s Workplace Project supra CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT N OALITION OF , O Under the program, participating buyers of tomatoes of tomatoes buyers participating Under the program, , C 104 Participating buyers agree not to patronize growers who growers not to patronize agree buyers Participating 1 EIC 5.5 (D 105 . 1417, at 452 (1958). (1958). 452 at 1417, . O ACRO ACRO .N M EP FranciscoManrique, R 103 108 ALIN Fair Food Program Food Fair See Fair Food Code of Conduct of Code Food Fair Campaign for Fast Food Fair Food 2018 Update Fair Food 2018 Update 172 172 7M Examination of two of the most effective and successful alt labor labor alt successful and effective most the of of two Examination audits, and monitors participating growers and purchasers to ensure com- ensure to purchasers and growers participating monitors and audits, pliance. 104. 104. pay an additional penny per pound to enable growers to increase pay to to pay to increase growers to enable pound per penny pay an additional pickers. tomato https://www.fairfoodprogram.org/wp-content/uploads/2019/10/Fair-Food-Program-2018-SOTP- groups shows that they function much like traditional labor unions. One of One of unions. labor traditional like much function they that groups shows of Immoka- Coalition the of Program Fair Food the is successful most the (CIW). lee Workers 2, 2013), https://voicesofny.org/2013/01/the-fall-of-long-islands-workplace-project [https://perma.cc/S4 [https://perma.cc/S4 https://voicesofny.org/2013/01/the-fall-of-long-islands-workplace-project 2, 2013), online.org/campaign-for-fair-food/. conduct to which growers must adhere, which forbids forced labor and and labor forced forbids which adhere, must growers which to conduct worked. hours all for payment requires and assault sexual organization, and a separate farm on every committees and safety health line, hot 24-hour a operates (FFSC) which Council Standards Food the Fair 102. officers who report to a self-perpetuating board of trustees. The lack of of lack The trustees. of board self-perpetuating a to report who officers mem- board between schism led to a have may accountability membership down- the be to proved that staff other and director executive the and bers Project. the Workplace of fall are not compliant with the program. the with compliant are not Update-Final.pdf. 107. s.org/resources/fair-food-code-of-conduct/ (last visited Feb. 13, 2020) [https://perma.cc/ENR9-TKTZ]. [https://perma.cc/ENR9-TKTZ]. 2020) 13, Feb. visited (last s.org/resources/fair-food-code-of-conduct/ program/ [https://perma.cc/7AWL-LXEG]. [https://perma.cc/7AWL-LXEG]. program/ 105. 106. 106. to the highest levels of the United Auto Workers demonstrates, unions are are unions demonstrates, Workers Auto United the of levels to the highest im- processes the democratic But misconduct. officials’ from not immune present not accountability of a level provides unions labor on by law posed on Improper Committee Select the Senate Indeed, centers. worker in most the as known better Field, Management and the Labor in Activities hear- whose McClellan, John Senator its Chair for Committee McClellan and Disclosure Reporting Labor Management of the to enactment ings led union to corrupt as an antidote democracy union internal Act, regarded commit- the in elicited is that “[m]uch reported, committee The practices. labor of processes democratic the of revitalization im- a . by be substantially can officials by union misconduct of findings tee’s . . proved unions.” 103. S. 8V-32YE]. 103. 108. 108. 42394-ckt_95-1 Sheet No. 90 Side B 06/12/2020 13:18:38 B 06/12/2020 90 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 91 Side A 06/12/2020 13:18:38 , CIW ORKERS W 110 (Apr. 24, a density a density IMES 111 36 (Apr.17, 2018), MMOKALEE , N.Y. T I OUNCIL C CIW engaged in a four- a in engaged CIW 109 OALITION OF , C TANDARDS Complaints and audits enforce enforce and audits Complaints S 173 173 112 OODS F AIR ) 5/8/2020) 10:43 PM ALT LABOR? ,F ELETE D OT OT N O In Florida Tomato Fields a Penny Buys Progress Buys a Penny Fields Tomato Florida In 1 EIC 5.5 (D ACRO ACRO M at 30. at 30. ALIN Id. Fair Food 2017 Annual Report Fair Food Program: Frequently Asked Questions Asked Frequently Program: Food Fair Id. 113 2020] 7M The FFSC has its own board, executive director, and staff. It boasts of of boasts It staff. and director, executive board, own its has The FFSC Before CIW’s action, it was common for workers to be picked up and up and picked to be workers for common it was action, CIW’s Before CIW has thus developed practices and processes that are analogous to to analogous are that processes and practices developed has thus CIW level that any union would envy. envy. would any union that level within 53% resolving and of as of 2017 complaints, hotline 1,800 handling one month. 70% within two weeks and http://ciw-online.org/ffp_faq/ (last visited Feb. 13, 2020) [https://perma.cc/EB76-UM3S]. [https://perma.cc/EB76-UM3S]. 2020) 13, Feb. visited (last http://ciw-online.org/ffp_faq/ http://www.fairfoodprogram.org/wp-content/uploads/2018/06/Fair-Food-Program-2017-Annual- driven to the fields but not allowed to clock in for several hours until it was was it until hours in for several to clock allowed but not fields the to driven ninety-five- in breaks rest without worked They tomatoes. to pick time 109. Greenhouse, Steven claims the FFP covers 90% of the Florida tomato growers, tomato Florida the of 90% covers FFP the claims those developed by traditional service-oriented business unions. The Code Code The unions. business service-oriented traditional by developed those bar- collective traditional to analogous are bonus pound per penny the and and hot line the complaint through are enforced They agreements. gaining of shop stewards place the which take audits and the FFSC’s adjudication 2014), https://www.nytimes.com/2014/04/25/business/in-florida-tomato-fields-a-penny-buys- year boycott of Taco Bell, which pressured its parent company, Yum Yum company, parent its which pressured Bell, Taco of year boycott a penny the pay to agree to Hut, and Pizza KFC owns also which Brands, up signed It program. the with comply would who growers to pound extra to on moved then and Subway, and Chipotle King, Burger McDonald’s, The Wal-Mart. and Joe’s, Trader Foods, Whole as such up retailers sign as a bonus. paychecks on workers’ appears pound penny per extra 111. 111. 112. progress.html [https://perma.cc/L53M-NJDN]. the Code of Conduct which prohibits forced labor, child labor, and sexual sexual and labor, child labor, forced prohibits which the Code of Conduct with cooperation growers’ mandates The Code violence. and harassment hotline complaint The freely. to speak allowed be workers that and audits hired be must workers All slips. pay workers’ on provided be must number begins. work before payroll grower’s on the placed and as employees com- workers injuries, of worker records detailed maintain must Growers on must participate workers All and discipline. training, claims, pensation must Growers cycle. each growing sessions education CIW in the clock timekeeping accurate have must Growers discipline. to progressive adhere least at with meetings committee safety monthly hold must and systems each from representative one least at and representatives worker five crew. degree heat and women were sexually assaulted. sexually were women and heat degree Report-Web.pdf. Report-Web.pdf. 110. 110. 113. 113. 42394-ckt_95-1 Sheet No. 91 Side A 06/12/2020 13:18:38 A 06/12/2020 91 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 91 Side B 06/12/2020 13:18:38 116 It boasts 21,000 21,000 boasts It 117 . (2017). 146–57 141, J. TUD [Vol 95:1 [Vol .S AB , 43 L , http://www.nytwa.org/ [perma.cc/2Q7N-HKXV]. ) 5/8/2020) 10:43 PM ELETE LLIANCE D A OT OT CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT N O , Workplace Gains beyond the Wagner Act: The New York Taxi Workers Workers York Taxi New The Act: Wagner the beyond Gains Workplace , ORKERS W note 96, at 49, tbl 8. note 96, at 51, tbl 8. AXI 1 EIC 5.5 (D T supra supra , , , NLRB v., NLRB Associated Diamond Cabs, Inc.,702 F.2d 912 (11thCir.1983); Seafarers ORK ACRO ACRO and membership dues account for the largest share of its reve- its of share largest the for dues account and membership Y M Hannah Johnston 118 ANHEIM ANHEIM EW Thus, unlike traditional unions, CIW does not appear to have to have appear does not CIW unions, traditional Thus, unlike ALIN See See See, e.g. See, The taxi unions were broken. broken. were unions taxi The 114 174 174 7M Another very successful alt labor group is the New York Taxi Work- York Taxi New the is group labor alt successful very Another The NYTWA stands out from other worker centers because it is not is not it because centers worker other from out stands The NYTWA But CIW has no members and collects no member dues. The FFSC is FFSC is The dues. member no and collects members has no But CIW The NYTWA was founded in 1998. It has organized taxi drivers and and drivers taxi organized has in 1998. It The NYTWA was founded 115 Alliance and Participation in Administrative Rulemaking in Administrative Participation and Alliance ers Alliance (NYTWA). At one time, taxi drivers were often unionized. unionized. were often drivers taxi time, At one (NYTWA). ers Alliance the of a percentage and paid companies taxi the of employees They were companies the taxi However, tips received. plus collected they fares lease where drivers to a system moving models, business their changed or driving received fares for the companies to not account and do cabs their and contractors independent were drivers such that held courts The activity. Relations Labor the National by covered longer no are they accordingly, Act. members, Local 777 v. NLRB (Yellow Cab Co), 603 F.2d 862 (7th Cir. 1978); SuperShuttle DFW, Inc., 367 367 Inc., DFW, SuperShuttle 1978); Cir. (7th 862 F.2d 603 Co), Cab (Yellow NLRB v. 777 Local cases). (collecting 2019) 25, 3 (Jan. at 75, No. N.L.R.B. 116. 115. 115. excessively dependent on foundation or other outside funding. It received received It funding. outside other or on foundation dependent excessively 2013-2016. during foundations from only $450,000 nues. Thus, NYTWA looks very much like a traditional labor union. In- union. labor a traditional like much very looks NYTWA nues. Thus, 117. M 117. brought democratic processes to the workers it represents. represents. it workers the to processes democratic brought 118. N 118. 114. M 114. and grievance procedures found in traditional CBAs. CIW thus has created CIW CBAs. thus has created traditional in found procedures and grievance is This rights. worker safeguards that bureaucracy sustainable and a stable com- from moves just the center where centers worker other like case not a claims pursuing way beyond goes program CIW the as to complaint plaint theft. of wage heavily appears itself CIW The purchasers. and the growers by funded report of Commerce Chamber The funding. foundation on dependent 2013 to from support in foundation $1,900,000 shows received that CIW 2016. led collective action, including strikes and publicity campaigns, and suc- and campaigns, and publicity strikes including action, led collective (TLC) Commission and Limousine York Taxi New the pressured cessfully TLC the Because the drivers. benefit that ways in rules amend or to enact regula- its through conditions working and incomes driver controls largely The NYTWA employer. traditional to a similar a position occupies it tions, and other author- TLC the with bargaining in collective engages effectively revenues. and conditions working drivers’ control who ities 42394-ckt_95-1 Sheet No. 91 Side B 06/12/2020 13:18:38 B 06/12/2020 91 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 92 Side A 06/12/2020 13:18:38 120 ? 123 ORWARD F 175 175 that they will be fired or perma- or fired will be they that AY W – including, if necessary, a competi- if – including, ) 5/8/2020) 10:43 PM 122 ALT LABOR? HERE A T ELETE D S I OT OT N are not new. More than a quarter century ago, in in ago, century a than not are quarter More new. In Despair,Starting Over: Imagining a Labor for Law Unorganized V. O . 59 (1993). . 59 (1993). 119 EV But changing the law to deter employer violations of of violations employer deter to law the But changing L. R 121 1 EIC 5.5 (D ENT notes6-8 andaccompanying text. ACRO ACRO .-K M HI at 66. at 66. at 62-63. at 62-63. at 65. ALIN Id. Id. Id. See supra See , 69C 2020] 7M The comments of scholars and activists effectively giving up on tradi- giving effectively and activists scholars of The comments The fear erodes worker solidarity, converting it into a race to the bot- to the race a into it converting solidarity, worker erodes The fear Today, employees do not expect that all employees in an industry today today industry in an that all employees expect do not Today, employees will survive.fittest will survive The employer to and they want be their The fear that grips workers today is not is today workers grips that The fear nently that replaced, but jobs their will disappear. that worry They their employercompetitive will lose out the or in world under, that go and the investors will move their capital (and thus the jobs) to another locale more effec- enable lower wage scales whose country) another (perhaps tive competition. Having absorbed this message, workers today havebe- tor based lower on labor costs. among all for equality a movement joining in that number. Far from assure to anxious is today worker endangered the industry, an in workers thathas hisin or a competitive employer the her indus- others over edge come persuaded that key to the the survival is that of jobs their their competitor effective be an employer try. And, if labor competition cost is necessary to facilitate that edge, well, it’s better than losing job altogether. one’s 123. 123. tional business unionism and collective bargaining that I noted at the be- the at noted I that bargaining collective and unionism business tional article, this of ginning 120. Workers Michael H. Gottesman, 121. 121. 122. tom. Gottesman elaborated: elaborated: Gottesman tom. the statute, in Gottesman’s view, would not revive worker collective repre- collective worker revive not would view, in Gottesman’s the statute, He retaliation. employer of fear beyond went fear worker because sentation wrote: 119. The concerns he raised were comparable to those raised by Jonathan Ros- by Jonathan raised those to comparable were raised he The concerns em- incentivize to fails NLRA the that acknowledged Gottesman enblum. in engage to rights workers’ their respect and law the by abide to ployers action. collective deed, it is the first organization representing non-standard workers to be to be workers non-standard representing organization first the is it deed, AFL-CIO. the with affiliated an article in this law review, long-time union lawyer and Georgetown Uni- and Georgetown lawyer union long-time review, law this in an article fail- the at despair his expressed Gottesman Michael professor law versity revival. its precluded that conditions economic the NLRA ure of the and 42394-ckt_95-1 Sheet No. 92 Side A 06/12/2020 13:18:38 A 06/12/2020 92 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 92 Side B 06/12/2020 13:18:38 UTURE OF UTURE OF F AND AND 124 , RESENT ,P AST P [Vol 95:1 [Vol HE :T P U . (2010). 549 525, L.J. ORKED NIV ,W .L.U T ) 5/8/2020) 10:43 PM 126 OWN D ELETE , 54 , 54 S D OT OT EATEN EATEN CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT N O ,B The Canadian Auto Workers – Magna International, Inc. Framework of of Framework Inc. International, – Magna Workers Auto Canadian The 1 EIC 5.5 (D REENHOUSE G (2019). xiii–xiv ACRO ACRO M Martin H. Malin, Malin, H. Martin ABOR L TEVEN ALIN See 176 176 7M In an environment in which collective market power is replaced by a is replaced power market collective which in In an environment The picture Gottesman (and others) paint is not the picture envisioned envisioned the picture is not paint others) (and Gottesman picture The was to goal the NLRA’s act collectively, to workers By empowering The concerns raised by many from Gottesman to Rosenblum and oth- and Rosenblum to Gottesman from by many raised The concerns When I was growing up, people used to say, “Look at the good wages wages good the at “Look say, to used people up, growing I was When Now union.” a join to I want have. union a in people that and benefits have.” of what they away some The inequalityof bargaining power between employees do who pos- not and em- of contract, or actual liberty freedom of association full sess of ownership forms other or corporate the in organized are who ployers and commerce, of flow the affects and burdens substantially association wage by depressing depressions business recurrent aggravate to tends . . . . in industry of wage earners power the purchasing and rates people say, “Look at the good wages and benefits that union members members that union benefits and wages good at the “Look people say, Let’s take not get. getting what That’s fair. have. I than more They’re 125 MERICAN ternative, Congress took a conservative approach by affording workers a a workers affording by approach a conservative took Congress ternative, a pri- in and engage power bargaining collective their pool to mechanism pow- purchasing their and compensation their improves that vate ordering er. competitive race to the bottom and solidarity is replaced by resentment it is is it by resentment replaced is solidarity and bottom the to race competitive on reliance to turned increased have movements labor that alt not surprising minimum a higher as such standards, minimum government-mandated enforce- to and legislation, scheduling fair and leave sick wage and paid previ- discussed as But, centers. worker through standards those of ment of worker capacity the exceeds greatly for enforcement the need ously, when the NLRA was enacted. On the contrary, the statute declares: declares: statute the contrary, the On enacted. was NLRA the when drove that themselves among competition the eliminate to workers enable the was to have alternative down. The conditions and working wages their al- that rejecting In employment. of and conditions terms set government 126. S 126. 124. 125. (1947). 151 § U.S.C. 29 A ers is that collective worker power has eroded so much that, instead of tak- of instead that, much so eroded has power worker collective that is ers has been bargaining collective competition, out of costs ing labor occurs solidarity of erosion Further bottom. the to race a into transformed who have workers resent the bottom to race the in caught workers when quoting articulated, has Greenhouse Steven journalist labor As it. escaped Scott Governor Wisconsin by campaign to the reaction his grandmother’s in state, that bargaining collective employee public to decimate Walker Fairness Agreement: A U.S. Perspective A U.S. Agreement: Fairness 42394-ckt_95-1 Sheet No. 92 Side B 06/12/2020 13:18:38 B 06/12/2020 92 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 93 Side A 06/12/2020 13:18:38 128 These These (Aug.29, 134 TLANTIC This begs the the This begs A There has been been There has 130 HE 129 , T ., https://www.dol.gov/agencies/whd/ https://www.dol.gov/agencies/whd/ ., AB L T 177 177 ’ EP D 132 , U.S. ) 5/8/2020) 10:43 PM ALT LABOR? They conclude that “if all of the non-union non-union of the all “if that They conclude ELETE 131 D OT OT , http://news.gallup.com/poll/12751/labor-unions.aspx?version=print http://news.gallup.com/poll/12751/labor-unions.aspx?version=print , N O Minimum Wage note 2, at 20. 20. at 2, note This marked a steady ten-year increase from 2009 2009 from increase a ten-year This marked steady ALLUP 133 , G supra 1 EIC 5.5 (D notes86-87 and accompanying text. notes88-91 and accompanying text. , Lewis v. Governor of Ala., 944 F.3d 1287 (11th Cir. 2019) (holding that plaintiffs plaintiffs that (holding 2019) Cir. (11th 1287 F.3d 944 Ala., of Governor v. , Lewis ACRO ACRO M Worker center concentration on enforcing minimum standards standards minimum enforcing on concentration center Worker at 23. at 23. 127 ALIN See supra See See supra See Id. Labor Unions Labor See, e.g. See, Id. How St.How LouisWorkers Wonand Then Lost a Minimum Wage Hike 2020] 7M Public opinion concerning unions is also on the upswing. In the most the most In the upswing. on is also unions concerning opinion Public There is reason to believe that the picture is not so bleak. Workers still still is not so Workers the bleak. that picture There is reason to believe considerable improvement in minimum standards at the state and local local and state the at standards minimum in improvement considerable mu- of some case the in and, uneven been has improvement that but level, statutes. by state preempted been has ordinances, nicipal workers who have a desire to join a union had the opportunity to do so, do so, to opportunity had the a union to join who have a desire workers workers, 58 million by approximately increase would membership union which union, a by represented currently number the quadrupling essentially 54%.” to density union would raise recent Gallup poll, taken August 1 – 14, 2019, 64% of respondents had a had a respondents of 64% 2019, 1 – 14, August taken poll, Gallup recent an with respondents of percentage the doubling of unions, view favorable view. unfavorable when only 48% responded that they viewed unions favorably. unions viewed they that responded when only 48% legislation does not lead to sustainable improvements in workers’ lives. in workers’ improvements sustainable to lead not does legislation non-managerial, non-unionized workers would vote for union representa- union for vote would workers non-unionized non-managerial, opportunity. the if given tion 2017), https://www.theatlantic.com/business/archive/2017/08/st-louis-minimum-wage-preemption question: are we left in the despair of which Professor Gottesman spoke spoke Gottesman Professor which of despair the in left we are question: ago? years twenty-six developments suggest that Professor Gottesman’s despair that more effec- more that despair Gottesman’s Professor that suggest developments minimum-wage (last visited17, Feb.2020) [https://perma.cc/77B7-VQPJ]. 127. 127. centers. the by led standards, minimum statutory improve to efforts And although minimum federal the success, of degree a fair have had for Fifteen, Fight years. ten than for more at $7.25 stuck been wage has 128. 128. 129. Div., Hour and Wage (last visited Feb. 17, 2010). 2010). 17, Feb. visited (last 134. 133. 133. 130. 130. paid at levels below the minimum wage set forthin a Birmingham ordinance lacked standing to suethe as ordinances wage minimum local preempted that statute Alabama an challenging Alabama of state A. David Amendment); Fourteenth the of Clause Protection Equal the of violation in motivated racially Graham, desire union representation in significant numbers. Despite the picture that that picture the Despite numbers. in significant representation union desire the job security, threatens thereby, and, costs labor increases unionization of half almost that found colleagues and Kochan by conducted surveys 132. 132. 131. Kochan et al., al., minimum increasing ordinance Louis St. preempted statute state Missouri how et (discussing /538182/ [https://perma.cc/BXB7-BLED]. effect) took Kochan ordinance the after months several wage 131. 42394-ckt_95-1 Sheet No. 93 Side A 06/12/2020 13:18:38 A 06/12/2020 93 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 93 Side B 06/12/2020 13:18:38 In . 1527, 137 EV 5-6 (Dec. (Dec. 5-6 141 But there there But .L.R MPLOYERS ARE MPLOYERS ARE The higher The higher 136 140 AMPAIGNS OLUM C The record was was The record :U.S.E 138 , 102 C , 102 and with discharging with discharging and LECTION 139 E NLAWFUL [Vol 95:1 [Vol NION ., U at 8 (discussing prior studies). studies). prior at 8 (discussing U NST I LL A 9-10, tbl. 6 (Apr.8,2018), See id. See Submission of Professor Martin H. Malin and and Malin H. Martin Professor of Submission OF OLICY .P 41.5% ) 5/8/2020) 10:43 PM CON ., E AW IN ELETE L D OT OT CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT N The Ossification of American Labor Law Labor American of Ossification The O EDERAL F ICHOLAS ET AL N 1 EIC 5.5 (D C Labor and management advocates have had enough political political enough had have advocates management and Labor M IOLATING ACRO ACRO V at 1540-44. 1540-44. at 135 M Cynthia L. Estlund, Martin H. Malin JohnWerner, M. & at 7. at 7. Of course, that charges were filed does not necessarily mean that violations occurred. occurred. violations that mean necessarily not does filed were charges that course, Of ELINE ALIN See See Id. Id. Id. See id. See 178 178 7M Unfortunately, statutory reform is not likely to happen. Except for a a for Except happen. to likely not is reform statutory Unfortunately, More than twenty years ago, Professor Charles Morris observed the the observed Morris Charles Professor ago, years twenty than More A key obstacle to worker organization is the prevalence of unfair labor labor unfair of prevalence the is organization worker to obstacle A key HARGED WITH HARGED prevalence of unfair labor practice charges in elections in larger bargaining bargaining larger in in elections charges practice labor unfair of prevalence is the unit size bargaining the of because significant units is particularly a of the likelihood with outcome, of election determinant significant most increases. voters eligible of the number as decreasing union victory 141. 141. worse for elections in larger bargaining units. For units of sixty or more more or sixty of units For units. bargaining larger in elections for worse charged were employers of all NLRB the top quarter elections, employees, the cases, of over half in practices labor unfair with Tabulating the percentageofelections in which charges were filed maythusover-estimate thepercent- age taintedby illegalemployer conduct. But that islikely offset by the high probability that many event, any In filed. charges of numbers the in appear not do tbhus and reported never were violations 135. 135. C tive enforcement of the NLRA would not appreciably increase worker rep- worker increase appreciably not would NLRA the of enforcement tive today. hold may not resentation since 1959 NLRA the to amend efforts all the 1970s, in changes few minor have failed. 1532-35 (2002). (2002). 1532-35 extreme differences in union density between the private sector generally generally sector private the between density in union differences extreme Railway the by covered are which industries airline and railroad and the power to block every effort at reform made by the other side. other the by made reform at effort every to block power arereforms that could have meaningful impactthat do notrequire congres- action. sional activity. organizing union to response in employers by committed practices a can have which supporters, of union the discharge is these Chief among that em- study found drive. A recent on an impact organizing devastating all of 40% than more in practices labor unfair with charged were ployers 2017. and 2016 NLRB in the before cases election representation union supporters in between 27.2% and 41.3% of elections. of 41.3% and 27.2% between in supporters union between one-fifth and three-tenths of election cases, employers were were employers cases, of election and three-tenths one-fifth between supporters. union discharging illegally with charged Professor Jon M. Wernerin response to theNational LaborRelations Board’s Request for Information Regulations Election Representation Regarding 139. 139. 140. the study is consistent withprior researchon the subject. 11, 2019), https://www.epi.org/files/pdf/179315.pdf. https://www.epi.org/files/pdf/179315.pdf. 2019), 11, 138. 136. C 136. 137. https://www.nlrb.gov/sites/default/files/webform/uploads/nlrb.submission.4.18.18.malin_.werner.pdf. https://www.nlrb.gov/sites/default/files/webform/uploads/nlrb.submission.4.18.18.malin_.werner.pdf. 42394-ckt_95-1 Sheet No. 93 Side B 06/12/2020 13:18:38 B 06/12/2020 93 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 94 Side A 06/12/2020 13:18:38 L. ENT . L. 293, .-K MP HI .&E , 69 C , 69 Twenty years Twenty years AB 145 J. L He suggested the the He suggested 143 Excelsior Underwear, Underwear, Excelsior ERKELEY , 40 B , 40 179 179 He refined his proposal, calling for for calling proposal, his He refined He also observed that, whereas dis- that, whereas observed He also 146 142 ) 5/8/2020) 10:43 PM ALT LABOR? One proposal went to the representation representation the to went proposal One 148 ELETE D J. 317,319-20 (1998). OT OT Y ’ N He urged that comparable deterrence could be be could deterrence comparable that urged He O OL 144 .P A “Tale of Two Statutes” Redux Statutes” of Two “Tale A A Tale of Two Statutes: Discriminationfor Union Activity Under the NLRA Afterword: LaborLaw Reform: Waiting for Congress? MP 1 EIC 5.5 (D .&E TS ACRO ACRO .R Implementation of the Morris proposal would go a long way to long way a go would proposal Morris the of Implementation M MP 147 at 344-59. at 344-59. at 339-44. at 339-44. at 345-35. at 345-35. ALIN Id. Id. Id. Id. , 2 E 2020] 7M In the same issue of this law review in which Professor Gottesman Gottesman Professor in which review law of this issue the same In to require employers to furnish lists of employee names and addresses and addresses names of employee lists furnish to employers to require . 277 (1993). EV 146. Charles J. Morris, J. Charles 146. voiced his despair, I offered two other proposed reforms that would not not would that reforms proposed two other offered I despair, his voiced action. congressional require 145. 145. achieved under the NLRA by the use of the NLRB’s authority to seek pre- to seek authority the NLRB’s of use by the NLRA the under achieved statute. the of 10(j) section under relief injunctive liminary election process. I observed that as it was deciding in in deciding it was as that observed I process. election Inc. its under action taking deferred also Board the directed, are elections when for access equal mandate to elections representation regulate to authority the NLRB to delegate the authority to seek 10(j) injunctions to the general to the general injunctions to 10(j) seek the authority delegate to the NLRB injunction timely more for provide to process the and streamlining counsel petitions. later, Morris found that the situation had not changed. Union density re- Union density changed. had not situation the that found Morris later, to and continued industries and airline in the rail and stable high mained generally. sector private the in drop reason lay in the different approaches of the two statutes to enforcement of of to enforcement two statutes the of approaches different in the lay reason author- enforcement exclusive Whereas, conduct. on such prohibitions their the RLA relies counsel, the the with NLRB’s general under NLRA rests ity Consequent- rights. employee of protections enforce to litigation on private that knowing so do supporters union discharge who airlines and railroad ly, prelimi- for requests including actions, private with be met likely they will de- an effective as serves Morris, to according This, relief. injunctive nary railroads though RLA, even the under discharges to discriminatory terrent seeking unions defeat to campaign vigorous mount typically and airlines rights. representation 143. 143. 144. 296-97 (2018). (2018). 296-97 142. RLA and Morris, J. Charles Labor Act rather than the NLRA. the than rather Act Labor R 148. Martin H. Malin, Malin, H. Martin 148. closing the gap between the percentage of workers who desire union repre- union desire who workers of percentage the between gap the closing it. who have percentage the and sentation criminatory discharges were relatively common in organizing campaigns campaigns in organizing common relatively were discharges criminatory RLA. the under rare very NLRA, they were the under 147. 147. 42394-ckt_95-1 Sheet No. 94 Side A 06/12/2020 13:18:38 A 06/12/2020 94 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 94 Side B 06/12/2020 13:18:38 151 [Vol 95:1 [Vol avoid a first contract in effect in effect contract avoid a first permanent replacement as an explicit as replacement permanent 152 ) 5/8/2020) 10:43 PM ELETE D OT OT 154 CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT N O 1 EIC 5.5 (D Consequently, employers remained free to mandate em- mandate to free remained employers Consequently, 149 ACRO ACRO 150 M I urged, however, that the existing approach to refusals to bar- to to refusals approach the existing that urged, however, I at 287. at 287. at 289. at 289. at 284. at 284. at 287-88. at 281 (discussing Excelsior Underwear, Inc., 156 N.L.R.B.1236 (1966)and General 153 ALIN Id. Id. Id. Id. Id. Id. 180 180 7M “[i]f an employer is in good faith unyielding at the bargaining table, table, at the bargaining unyielding faith is in an good “[i]f employer My second proposal went to another major impediment to workers re- workers to impediment major another to went proposal My second I maintained that charges of failing to bargain in good faith are gener- are faith in good to bargain failing of charges that maintained I Union economic pressure primarily involves a strike or threat to strike. to strike. threat or strike a involves primarily pressure Union economic An employer who surface bargains to bargains An employer who surface wielding the union to strike, dares or implicit very threat union’s to existence. the Employees from deterred striking by the specter of permanent replacements taking their jobs are are jobs their taking replacements of permanent specter by the striking back after jobs their getting for potential by the be reassured to likely not fight. legal a prolonged the union’s remedy is not to seek NLRB assistance but to exert economic economic exert to but assistance NLRB seek to not is remedy the union’s to employer an compel not, and should not, does statute . The . . pressure. too is weak to force.” the union that make concessions courts to infer bad faith bargaining from a party’s substantive proposals in in proposals substantive party’s a from bargaining faith bad infer to courts because: appropriate was generally negotiations 153. 153. 154. 154. alizing their desire for union representation: the difficulties in achieving a a achieving in difficulties the representation: union for desire their alizing the the NLRB and by reluctance strong the that observed I contract. first Elec. Co., 156 N.L.R.B. 1247 (1966)). (1966)). 1247 N.L.R.B. 156 Co., Elec. 150. 151. 152. ployee attendance at captive audience anti-union presentations without without presentations anti-union audience captive at attendance ployee via this change NLRB to the urged I respond. to time union the affording rulemaking. ally not about imposing contract terms on a reluctant party. Instead, in in Instead, party. reluctant on a terms contract imposing about not ally as an economic be classified will a strike whether about are they practice, or the strikers, replace permanently may employer which the during strike, pro- is replacement which permanent during strike practice labor an unfair hibited. 149. 149. campaigning. gain in good faith was inadequate. I wrote: wrote: I inadequate. was faith in good gain A union’s strike weapon is offset by an employer’s legal freedom to per- to freedom legal employer’s an by offset is weapon strike A union’s or replacement permanent that urged I strikers. economic replace manently into union the pressuring for tool as a used be could thereof threat the union. the breaking for vehicle a as used be could also it but agreement negotiating are the parties where of concern is particularly This possibility warrants bargaining in conduct employer and therefore their contact first situations. such in scrutiny closer 42394-ckt_95-1 Sheet No. 94 Side B 06/12/2020 13:18:38 B 06/12/2020 94 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 95 Side A 06/12/2020 13:18:38 U., 157 ORNELL , C 158 41, 51-52 (RichardB. Freeman & NIONIZE 181 181 U ORKERS W ) 5/8/2020) 10:43 PM ALT LABOR? ELETE ECTOR D PublicSector Bargaining Laws ReallyMatter: Evidence from S OT OT N New York State Taylor Law: History Law: Taylor State York New O UBLIC P My reform proposals are as valid today as they were were as they today as valid are proposals My reform Most Americans View Unions Favorably, Though Few Workers Belong to to Belong Workers Few Though Favorably, Unions View Americans Most 155 HEN HEN 156 . (Aug. 30, 2018), https://www.pewresearch.org/fact-tank/2018/08/30/union- 2018), 30, (Aug. . 1 EIC 5.5 (D W TR in , ACRO ACRO .C M ES Gregory M. Saltzman, M. Saltzman, Gregory at 290. at 290. R ALIN Id. See EW 2020] 7M Consequently, I proposed that the NLRB scrutinize employer conduct conduct employer scrutinize NLRB the that proposed I Consequently, Today, unions have virtually no support among Republican elected of- elected Republican among no support virtually have Today, unions Labor’s almost complete alignment with the Democratic Party ex- Party Democratic the with alignment complete almost Labor’s Of course, administrative reforms require administrative officers who who officers administrative require reforms administrative Of course, P , and the money is not there under the auspices of the unions, certainly what what certainly the unions, of auspices the under there is not money and the Wisconsin enacted Act 10, gutting collective bargaining rights for most most for rights bargaining collective gutting 10, Act enacted Wisconsin admitted Leader Majority Senate the Wisconsin in 2011, employees public in that campaign reelection Obama’s President to defund was the goal that we win this battle, “If Kelley, Megan Fox News reporter then told He state. ficials, with most displaying outright hostility. Unions today are almost almost are today Unions hostility. outright displaying most with ficials, way. this not always was It Party. Democratic the with aligned completely 156. Drew DeSilver, Drew 156. One 155. 155. In 1983, another Republican governor, James Thompson, signed the bills bills the signed Thompson, James governor, Republican 1983, another In so did He rights. bargaining collective employees public Illinois giving part in large due in 1982 margin a very narrow by reelection winning after Association. Education Illinois the of support to the plains a good deal of the actions by Republican elected officials. When When officials. elected by Republican actions the of good deal a plains membership-2/ [https://perma.cc/MT45-52PS]. twenty-six years ago. Indeed, they are probably more needed today. today. needed more probably are they Indeed, ago. years twenty-six to likely not are therefore, and, rights collective worker to sympathetic are is a divide great there Indeed, administration. the Trump under happen Pew 2018 A unions. labor view Republicans and how Democrats between Democrat- and Democrats of 68% that found survey Center Research a bad as representation union in decline the viewed independents leaning said independents Republican-leaning and Republicans of 53% while thing it is mostly good. Casey Ichniowski eds. 1988). 1988). eds. Ichniowski Casey http://www.mildredwarner.org/gov-restructuring/special-projects/taylor-law (last visited Feb. 17,2020) at the bargaining table more closely in first contract negotiations and, upon upon and, negotiations contract first in closely more table bargaining at the by only not violation the remedy faith, good in bargain to a failure finding em- the prohibiting by also but desist and cease to employer the ordering should employees the replacing permanently from forward going ployer strike. they go on It was a Republican governor, Nelson Rockefeller, who created the Taylor Taylor the who created Rockefeller, Nelson governor, was a Republican It giving Law Taylor the signed later who a year and in 1966 Commission collectively. and bargain to organize rights employees New York public 157. Mildred Mildred Warner, 157. [https://perma.cc/GY7P-KGZR]. [https://perma.cc/GY7P-KGZR]. Ohio and Illinois 158. 158. 42394-ckt_95-1 Sheet No. 95 Side A 06/12/2020 13:18:38 A 06/12/2020 95 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 95 Side B 06/12/2020 13:18:38 , In 160 , WI Senate GOP GOP Senate WI 161 (Feb. 21,2014, 5:02 OLITICO P ; Lee Fang, Fang, ; Lee ] [Vol 95:1 [Vol ) 5/8/2020) 10:43 PM 163 ELETE D OT OT TheAttack GOP onAmerican Unions CouldCost Democratsthe CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT N O UAW Appeals Volkswagen Union Vote, Union Volkswagen Appeals UAW note 159. (Aug. 28, 2019, 7:52 AM), https://www.washingtonpost.com/outlook/the- AM), 7:52 2019, 28, (Aug. Auto Union Loses HistoricElection at VolkswagenPlant in Tennessee OST supra 1 EIC 5.5 (D .P ASH (Mar. 9,2011, 8:02 PM), https://thinkprogress.org/wi-senate-gop-leader-admits-on- ACRO ACRO M , W A Republican state representative was blunt in explaining why why in explaining blunt was representative state A Republican Steven Greenhouse, Greenhouse, Steven Kevin Robillard, Bailey v. Hutchinson, 715 F.3d 956, 958 (6th Cir. 2013) (Stranch, J.dissenting). J.dissenting). (Stranch, 2013) Cir. (6th 958 956, F.3d 715 Hutchinson, v. Bailey . (Feb. 14, 2014, 9:18 PM), https://www.washingtonpost.com/news/wonk/wp/2014/02/14/ ALIN 162 See See See Conservative activist Grover Norquist has declared “If Act 10 is 10 is Act “If declared has Grover Norquist activist Conservative OST ROGRESS P 182 182 7M The politically partisan attacks on unions have gone beyond enactment enactment gone beyond have on unions attacks partisan The politically That Republican elected officials’ attacks on organized labor are mo- are labor organized on attacks officials’ elected That Republican 159 .P ASH HINK let’s just call it like we see it.” see we like it call just let’s Volkswagen plant in Chattanooga, Tennessee in 2014, the company was was the company in 2014, Tennessee in Chattanooga, plant Volkswagen viewed it because union the welcomed unofficially and neutral officially plant. the at council a works to establish plan to its helpful as unionization by led officials Republican as NLRB election the lost the Union However, to workers’ threats made Haslan Governor Bill and Corker Robert Senator the violated have would company the by made if that job security NLRA. Republican officials did not want to see UAW representation of workers in in of workers representation UAW see to want not did officials Republican fear, one . . . . That’s to Republicans not donate UAW does “The state. their of legislation. When the UAW sought to organize workers at the the at workers to organize UAW sought the When of legislation. tivated by political partisanship rather than notions of public policy is re- is policy public of notions than rather partisanship political by tivated Act 10, for them. who support few unions the treat how they in flected of the definition but employees, safety public to apply not did example, by unions represented employees with coincided employees safety public safe- public obvious excluded and campaign Walker’s Scott supported that united-auto-workers-lose-historic-election-at-chattanooga-volkswagen-plant/ (quoting State Representa- State (quoting united-auto-workers-lose-historic-election-at-chattanooga-volkswagen-plant/ Michigan, the Republican legislature and governor prohibited Michigan Michigan prohibited governor and legislature Republican the Michigan, retaliation in deduction payroll by dues union their paying from teachers to Republican recall support Association’s Education for the Michigan opposed. union the that legislation backed who representatives 159. 159. you’re going to find is President Obama is going to have a much difficult, difficult, much a have to is going Obama President is find to going you’re Wiscon- of the state and winning elected getting time difficult more much sin.” enacted in a dozen more states, the modern Democratic Party will cease to to cease will Party Democratic modern the states, more a dozen in enacted a deal.” big that It’s politics. American in power be a competitive PM), https://www.politico.com/story/2014/02/united-auto-workers-union-volkswagen-bob-corker-bill- gop-attack-on-american-unions-could-cost-democrats-the-2020-election/2019/08/27/2e5b2992-c465- 2020 Election air-that-his-goal-is-to-defund-labor-unions-hurt-obamas-reelection-d8d554187dbf/ tive Mike Sparks) [https://perma.cc/N9KH-VVTY]. [https://perma.cc/N9KH-VVTY]. Sparks) Mike tive haslam-103793 [https://perma.cc/5MZR-FWPS]. [https://perma.cc/5MZR-FWPS]. haslam-103793 163. DePillis, Lydia W [https://perma.cc/9FRD-S34F]. [https://perma.cc/9FRD-S34F]. 11e9-b5e4-54aa56d5b7ce_story.html [https://perma.cc/Q7ML-QCCP 11e9-b5e4-54aa56d5b7ce_story.html 162. 162. 160. Greenhouse, Greenhouse, 160. 161. 161. Leader Admits On-Air That His Goal is to Defund Labor Unions, Hurt Obama’s Reelection Chances Reelection Obama’s Hurt Unions, Labor to Defund is Goal His That On-Air Admits Leader T 42394-ckt_95-1 Sheet No. 95 Side B 06/12/2020 13:18:38 B 06/12/2020 95 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 96 Side A 06/12/2020 13:18:38 UBLIC P Am. Fed. Gov’t OUL OF S But President President But See 165 (Dec. 10,2019), In the current dec- the current In OST President Trump has has Trump President 167 164 .P IGHT FOR THEIGHT With Trump Backing, Border Patrol Patrol Border Backing, Trump With ASH ,AF (2016) (chronicling the Chicago Teachers Teachers Chicago the (chronicling (2016) W 183 183 RUNO TRIKE B S OBERT ) 5/8/2020) 10:43 PM EACHERS ALT LABOR? The Teamsters UPS Strikeof 1997: Building aNew Labor T &R ELETE D OT OT SHBY HICAGO HICAGO N C O 169 K. A . J. 58 (1999). But, as I have noted previously, labor has also been very very been also has labor previously, noted have I But, as TEVEN 1 EIC 5.5 (D TUD 168 notes31-34 and accompanying text. TORY OF THE , S .S S ACRO ACRO AB M HE Matt Witt & Rand Wilson, Wilson, Rand & Witt Matt :T ALIN , 24 , 24 L See, e.g. See, See supra See See 2020] 7M But what of alt labor? In some instances, the successes of alt labor labor alt of successes the instances, some In labor? of alt what But The route back to political balance is not clear. However, organized organized However, clear. not is balance political to back The route when employers with confrontations in successful been have Unions 166 DUCATION issued executive orders designed to curb severely the amount of official official of amount the severely curb to designed orders executive issued to represent receive may representatives union employee federal that time office providing agencies of federal the and to end practice employees workers. their representing to unions equipment and space 168. 168. E 164. 2013). Cir. (7th 642-43 640, F.3d 705 Walker, v. Council Ass’n Educ. Wisc. ty workers such as the Capitol Police who did not. did who Police Capitol the as such ty workers https://www.washingtonpost.com/national/with-trump-backing-border-patrol-contract-significantly- labor must find a way to reestablish a civil relationship with the Republican Republican the with relationship civil a reestablish to a way find must labor Party. phenomenon. a new not is This public. the to engage able been they have Ser- Parcel United against strike major a won Teamsters the For example, support. public of because part in large in 1997 vice Union strikeof 2012). 169. successful in cooperative efforts with employers in improving the delivery delivery the improving in employers with efforts cooperative in successful and members its of lives working the improving also while of services visibil- wide the have do not they because victories these publicize to needs receive. strikes that ity Trump’s administration, reportedly on orders directly from him, has en- has him, from directly orders on reportedly administration, Trump’s Council Patrol Border the with agreement bargaining a collective into tered federal only the Employees, Government of Federation the American of eight union the gives which candidacy, his endorsed that union employee or- executive the under receive it would time official of amount the times der. ade, teacher unions have won several strikes in large part by mobilizing by mobilizing part large in strikes several won have unions ade, teacher support. public 165. Exec. Order No. 13,837,83 Fed. Reg.25,335 to 25,336 (May 25,2018). groups may be a prelude to a more sustainable traditional labor organiza- labor traditional sustainable a more to a prelude may be groups minimum per hour a $15 for campaign Sea-Tac The example, tion. For air- the servicing workers 1,000 about of unionization the to led wage also Emp’eesv.Trump, 929 F.3d748 (D.C.Cir. 2019) (rejectingchallenge to Executive Order). 166. NickMiroff, Josh Dawsey Arelis R. & Hernandez, Contract Significantly Increases Union Staffing, Union Increases Significantly Contract increases-union-staffing/2019/12/10/77025414-16da-11ea-a659-7d69641c6ff7_story.html Movement [https://perma.cc/75H4-R7TV]. [https://perma.cc/75H4-R7TV]. 167. 42394-ckt_95-1 Sheet No. 96 Side A 06/12/2020 13:18:38 A 06/12/2020 96 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 96 Side B 06/12/2020 13:18:38 They 171 172 But the the But 175 [Vol 95:1 [Vol Passenger Service Workers Ratify First Master Con- Master First Ratify Workers Service Passenger ) 5/8/2020) 10:43 PM . (July NW 25, 2018), http://seiu6.org/category/airport/ ELETE D ERVS note80. OT OT CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT N note 7,157; at .S O supra ROP P supra note 120, at 81-82. 81-82. at 120, note , 1 EIC 5.5 (D supra note 77, at 129-30. 129-30. at 77, note notes 87-88 and accompanying text. text. accompanying and 87-88 notes , SEIU6 Indeed, in some respects these are functions that the Coalition Coalition that the functions are these respects in some Indeed, ACRO ACRO Worker centers that develop or have access to such expertise expertise such to access or have develop that centers Worker at 79-80. 79-80. at Fine relates how the Chicago Interfaith Workers Rights Center Center Rights Workers Interfaith Chicago the how relates Fine supra OSENBLUM M , 174 R Griffith & Gates, Gates, & Griffith 173 170 INE ALIN See See supra See id. See See 184 184 7M Worker centers that expand to go beyond the small justice of redress- of justice small the to go beyond expand that centers Worker But what of worker centers that opt not to team up with unions to fa- to unions with up team to not opt that centers worker of what But The paths forward that I have suggested are not likely to be smooth or or to be smooth likely are not suggested have I that forward The paths tract at SeaTac tract (now Arise Chicago) facilitated the organization of employees of Berg Berg of employees of organization the facilitated Chicago) (now Arise Union. of the recognition employer’s the the UE and by Electronics ing wage theft run a risk that they will be found to be dealing with employ- be dealing to with be found will they that risk a run theft ing wage reporting the to subject organizations labor as classified thus, ers and, unions. on imposes law the that restrictions and requirements of Immokalee Workers and the New York Taxi Workers Alliance are are Alliance Workers Taxi York New the and Workers of Immokalee providing. cilitate the organization of workers for purposes of collective bargaining? bargaining? collective of purposes for workers of organization the cilitate to lead not do that justice” “small of acts pursuing to relegated they Are lives? employment workers’ improving for vehicles sustainable [https://perma.cc/RE74-A7D2]. [https://perma.cc/RE74-A7D2]. 170. 170. risk is worththe trade-offif itmeans developinginto sustainable organiza- lives. employment worker’s improve systematically that tions those of and some obstacles run into will They undoubtedly high-speed. alterna- to suggest others invite I immovable. to be prove may obstacles on is characterized are we path The current clear. is matter one But tives. port area. port could use it to educate workers and intervene with their employers and and employers their with intervene and workers educate to it could use goods to collective respect with voice worker to facilitate it use could also bene- group conditions, working safe like matters i.e. workplaces, in their on for negotiate cannot workers individual that processes and grievance fits own. their 172. 172. 175. 174. 174. 173. Gottesman, Gottesman, 173. 171. F 171. need not be as there are roles that they might play that do not amount to to amount do not that play might they that roles are there be as need not redress to reacting go beyond also but bargaining collective traditional for improvements and sustainability provide and injustices individual lack workplaces non-union in workers that observed Gottesman workers. employers. their with meaningfully deal to and expertise the information such to provide programs group developing organizations He envisioned expertise. by a continuing decline in collective representation of American workers, workers, American of representation collective in decline by a continuing en- with legislation standards minimum on uneven reliance and increased 42394-ckt_95-1 Sheet No. 96 Side B 06/12/2020 13:18:38 B 06/12/2020 96 Side Sheet No. 42394-ckt_95-1 42394-ckt_95-1 Sheet No. 97 Side A 06/12/2020 13:18:38 185 185 ) 5/8/2020) 10:43 PM ALT LABOR? ELETE D OT OT N O 1 EIC 5.5 (D ACRO ACRO M ALIN 2020] 7M forcement falling to over-extended and under-resourced not-for-profit or- not-for-profit under-resourced and over-extended to falling forcement ganizations predominantly dependent on outside funding. The current path path current The funding. on outside dependent predominantly ganizations best the embodies that better something find must We sustainable. is not unions. labor traditional of qualities 42394-ckt_95-1 Sheet No. 97 Side A 06/12/2020 13:18:38 A 06/12/2020 97 Side Sheet No. 42394-ckt_95-1