Professor Cynthia Estlund discusses the current relevance of the National labor relations Act (NLRA) in her article, \"Is the NLRA an Outmoded Statute in the 215t Century. \". Three central questions listed below, with possible answers, are contained in Professor Estlund's article. Please answer these questions. 1.) Is the NLRA relevant today? Ifso, to whom and why? 2.) What factors hinder expanded/continuing NLRB relevance? 3.) What factors, if any, can increase NLRB relevance in the future? Be sure to incorporate section 7 protections re concerted activity and section 8 restrictions on covered labor organizations, in your answers (as well as any other NLRA provisions you believe are relevant/helpful). 4.) Finally, discuss the following issues from the article in an additional answer: a. the role of litigation; b. the role of cooperative labor-management action; and c. the role of alternatives: i.) other forms of ADR (alternative dispute resolution); ii.) concerted activity/economic pressure/leverage. IS THE NATIONAL LABOR RELATIONS ACT AN OUTMODED STATUTE IN THE 21ST CENTURY? CYNTHIA L. ESTLUND the National Labor Relations Act (NLRA) . an outmoded statute? The question seems Cynthia Estlund is the Catherine A. to answer itself, at least for the many labor law Rein Professor of Law at the New York scholars who have written critically about the University School of Law. She earned Act's shortcomings and despondently about the her B.A. from Lawrence University and, prospects for labor law reform. So it is tempt- after a stint as a Thomas J. Watson ing to take this question as a nice fat pitch right Fellow, her J.D. at the Yale Law School. across the middle of the plate and to swing away. She clerked for Judge Patricia M. Wald But sometimes a surprise bunt-a confounding of the U.S. Court of Appeals for the of expectations-is the better strategy. D.C. Circuit, and then practiced law for Let me begin by clarifying the question. I several years, primarily with the labor take the question to be whether the NLRA, law firm of Bredhoff & Kaiser, before as it has been authoritatively interpreted by joining the University of Texas School the Supreme Court, is an outmoded statute. of Law in 1989. She moved to the That is an important specification because the Columbia Law School in 1999, and then Supreme Court has quashed several efforts by to NYU in 2006. the National Labor Relations Board to update the Act. To name just a few examples, consider The following is based on a presentation the Court's decisions in First National Mainte- by Professor Estlund at the "Charles nance,' Kentucky River, and Lechmere. Those H. Goldstein Labor Law Symposium: Supreme Court rulings, unlike the Board's Are Unions Still Relevant in the 2Ist own interpretive rulings, can only be altered Century?"The symposium was held at by legislation. So, with that understanding: the George Washington University Law is the NLRA an outmoded statute for the 21st School on February 17, 2006. century? The expected answer-with ample justification-is yes. I have already offered three familiar examples of anachronisms within the Act; let me elaborate briefly. In an era in which less and less of the econo- my revolves around mass production-with its 2006 Cynthia L. Estlund massive, immobile, sector-specific physical cap-italand more and more of it revolves around human and social capital and information, and is subject to frequent restructuring, mobility, and organizational change, the NLRA, per First National Maintenance, places some of the basic organizational decisions that have the greatest impact on people's working lives outside the sphere of mandatory collective bargaining. In an era of attening hierarchies and dif- fused authority, especially within the growing service and knowledgebased sectors of the economy, the Act, as read in Kentucky River, denies basic rights of self-organization and collective bargaining to millions of professional employeesnurses, doctors, lawyers, and oth- erswho oversee the work of others based solely on their professional skill and training. In an era of time~pressed multiple-job families and long commutes, the Act has been read in Lechmem to deny union organizers ac- cess to the workplace to communicate with unorganized workers; it presumes that \"home visits\" and union hall meetings are an adequate avenue of communication for the union for all but the most unusually isolated work sites and employees. Mchmme's denial of access to even the employer's parking lot has become increasingly anomalous whether it is grounded in employers' property rights or in manage- rial interests. The assertion of property rights sounds increasingly hollow as the law recog- nizes a wide array of social interests that trump the right to exclude others from property that the owner has opened to workers or the pub lic.\" And the assertion of managerial interests has become downright disingenuous in an era of increasingly intense and costly'professional anti-union campaigns that invade every corner of the workplace and much of the workday.5 That brings us to perhaps the most impor- tant area of obsolescence: the representation campaign and the election process. The Act's rules and procedures for determining the rep- resentation question are obviously not solely or perhaps even primarily responsible for the decline of union density in the private sector to well below ten percent. But the Act has. manifestly failed to overcome some of those other forces, and to make unionization pos- sible for the large majority of unrepresented employees who would like to have some kind of collective voice at work, or even for the many who would choose a union if they could.6 That is partly because, with the increasing intensity and sophistication of anti-union campaigns that employers are frantically urged to mount and that the Act largely permits, the traditional union representation campaign has become a civil war. It is a lopsided war in which the union and its backers are badly outguuned. But if the union wins the war, it creates the worst possible foundation for a cooperative labor- management relationship, which is the only kind of labor-management relationship that is sustainable over the long haul. And whatever the outcome, this war often takes a terrible toll on production and workplace relations. Many unions and some employers, seek- ing to avoid that battle-scarred landscape, have begun to devise more peaceable and speedy processes for resolving representation issues through \"neutrality\" and card-check agreements. These agreements, the terms of which vary widely, establish constraints on the campaign, or prescribe a different regime for ascertaining the majority's choice, or both. They may limit picketing, captive audience meetings, negative propaganda, and other ag- gressive tactics that the Act otherwise permits. They may provide for a private election or a showing of cards to resolve the question of majority support, and they often provide for an alternative forum such as arbitration for the resolution of disputes under the agreement. These agreements attempt to create by contract a representation system that both parties pne fer to the long, tortuous, and conict-ridden process over which the Board presides.' Ironi- cally, those agreements have now come under the shadow of the Act in the Dana/Metaldyne and Shaw's Supermarkets cases.\" Those cases threaten to unsettle what many had thought were settled principles governing voluntary rec- ognition. They raise the question whether the Act not only has ceased, in the eyes of many, to provide a fair, sensible, and expeditious process for determining majority status and affording employees a real choice about self-organiza- tion, but actually stymies the innovative efforts of employers and unions to improve upon that procedure by mutual agreement. Thus far I imagine little dissent from the union side of the aisle. But let me point nally to Section 8(a)(2) and its role in discouraging innovation and experimentation. Section 8(a)(2), along with Section 2(5)'s denition of \"labor organization,\" which it incorporates by reference, was broadly written in 1935 and broadly interpreted many decades ago to ban \"company unions," seen then as one of the most potent employer tools for frustrating employees' choice to be represented by an independent union.9 Now we nd ourselves in an era in which cooperation, teamwork and employee involvement are increasingly essential to economic success. We nd that what many non-union employees say they want is an organization that is \"run jointly\" and cooperatively by employees and manage- ment (perhaps because they see that, whatever federal law demands, little good can come to them through a form of representation that their employer does not want)."' Yet the Act plainly prohibits forms of employee represen- tation that might appeal to, and work well for, both employers and employees in workplaces in which independent unionization is not a realistic prospect. At least it might work better than nothing, which is what the vast majority of employees have and are likely to have for the foreseeable xture. So I am tempted, and probably expected, to answer yes, the NLRA is outmoded. But it seems more interesting and perhaps more productive to explore what vitality remains in the NLRA that we have, and that we are likely to have for some time. I will focus here not on the millions of private sector workers who do have union representation and collective bargaining relationships that function reason- ably wellworkers for whom the NLRA obvi- ously retains vitality and relevance, whatever its awkbut on the tens of millions of workers who are currently unrepresented. ISO First, let's go back to basics. Section 7 was an early landmark in the international movement to recognize workers' freedom of ~ associationtheir right of selforganization and collective discussion and protest, free from both state and employer coercionas a basic human and civil right. That movement has ourished and garnered a broad global consensus (at least in principle) that workers? freedom of association and right to bargain collectively are now recognized as core inter- national labor rights. Now for many of the reasons identied above, the United States has been found to fall far short in realizing those rights. One respected international human rights organization concluded that, given long delays and inadequate remedies, among other problems, \"[m]any employers have come to view [legal sanctions] as a routine cost of do- ing business, well worth it to get rid of orga- nizing leaders and derail workers' organizing efforts. As a result, a culture of near-impunity has taken shape in much of US. labor law and practice."\" But the commitment that Section 7 represents, far from outdated, was before its time and remains a vital one. In other respects, the NLRA is very much a product of its own unusual time, but in ways that may resonate with the needs and condi tions of our own time. The New Dealers were convinced that the market, especially the labor market, needed to be channeled and civi- lizedthat we needed \"fair competition"" not free competition. Some form of social control was called for. Yet they sought to avoid exten- sive centralized regulation of terms and condi- tions of employment. So they turned instead to group action, cooperation, and solidarity among workers themselves as a counterweight to corporate power and individualistic, imper- sonal, and selfregarding market forces. Dur- ing this brief national irtation with corporatist ideas, the New Dealers promoted collective bargaining as a more democratic, exible, and cooperative alternative to what we have come to call \"command and control\" regulation. As for protecting employee rights, the New Deal- ers could barely imagine putting them in the LABOR LAW JOURNAL hands of lawyers and courts. They entrusted the job of enforcing employees' statutory rights largely to the NLRB- But they saw collective bargaining and grievance arbitration as vastly superior mechanisms for protecting most em- ployee rights and freedoms. And they meant for this whole regime of collective bargaining and industrial self-governance, with the sup port and protection but only rarely the direct intervention of the state, as leading to genuinely cooperative labor-man- agement relations.\" Fast-forward to the present. In our own time we see that, as unioniza- tion has declined, some form of social control of labor conditions is still called for, and both regulatory standards and judicially-enforce- able employee rights have proliferated. Yet we also see a growing consensus that those THERE Is NOTHING NOVEL ' IN POINTING OUT THAT THERE Is SPACE BETWEEN THE PROTECTIONS OF SECTION 1 AND THE DOMAIN OF \"LABOR ORGANIZATIONS.\" THE \"CONCERTEO ACTIVITY\" THAT Is PROTECTED nv SECTIoN 1 onvuousnr ENCOMPASSES MUCH MORE Old-style hierarchical managerial structures and stable verticallyintegrated organizations are crumbing in this new economic order, and cooperation among employees and managers is essential; but cooperation requires some organized form. Faced with these concerns, employers, es- pecially major transnational rms, are taking things into their own hands, responding to the burdens of litigation and regulation in ways that threaten to weaken pub- lic accountability and control and to further disempower workers. With the blessing of the Supreme Court, employ- ers are instituting private arbitration systems that lower the cost of dispute resolution and may in- crease employee access to an impartial hearing, but that weaken public enforcement of public norms and in some cases mechanisms are proving THAN ACTIVITY IN SUPPORT OF are skewed toward the unsatisfactory and are themselves becoming a bit outmoded. Litiga- tion is a costly, inefcient and often inaccessible mechanism for enforc- ing employee rights and resolving disputes at work. The vast majority of employees get no hearing at all on their claims, while some get modest relief after a long and costly lawsuit, and a fewnot necessarily the most deserv inghit the jackpot. Bureaucratic forms of regulation are too rigid and unresponsive to keep up with today's organizations, with their relentless pursuit of exibility, uidity, geo- graphic mobility and technological innovation. They are viewed as too rigid and burdensome by many employers, yet they are also too eas- ily evaded by employers who can move across jurisdictional boundaries, or simply operate under the radar and evade enforcement, as many small and marginal operations can do. LABOR UNIONS IN THE 21\" CENTURY A LABOR ORGANIZATION. employers who design them.\" At same time, employers are gaining the ever-growing tech- nological and organizational capacity to tran- scend jurisdictional boundaries and escape 20lh Century forms of democratic oversight and public accountability. There is a real fear among workers and their allies that, if public regulatory powers continue to lose traction, workers will eventually face the unmediated, unmitigated market forces of global capitalism and will be caught in a race to the bottom of a shockingly deep labor pool.\" In response to all of this, forward-looking - thinkers are exploring new forms of regula- tion and governance that are democratic, de- centralized, exible, and responsive to Varied and changing needs of economic actors, that are cooperative and include a large dose of self-regulation, that engage nongovernmen- I5I tal organizations to counter and temper the economic power of capital and to represent interests and constituencies that formerly looked to the state for protection. '6 Think, for example, of the corporate codes of conduct that have proliferated in recent decades, and that have gained some regulatory traction in the sweatshops of the developing world where an increasing share of manufacturing takes place. '7 The basic architecture is contractual. The content is tailored to the particular sector and organizational structure. State intervention is minimal, and is partly supplanted by non-gov- ernmental organizations using non-legal forms of leverage. And the aspiration is toward public accountability and worker involvement. Collective bargaining, anyone? Collective bargaining is at least potentially. democratic, decentralized, exible, and responsive to Change and local variation. It' gives the par- ties inside the organization, who have the best and most current information about what the organization and its constituents need to thrive, the tools to create their own coopera- tive solutions. Collective bargaining, at least in its broad strokes, could respond to modern discontentment with regulation and litigation much as it did in the 19305. To be sure, many particulars of the NLRA'S scheme of collective bargaining are not so promising. I have in mind especially its heavy reliance on economic weapons and warfare to settle basic controversies; its peculiarly com- partmentalized view of proper subjects of bar- gaining; its increasingly articial division be- tween supervisors and managers, on one hand, _ and employees who exercise no supervisory or managerial power; and of course the gauntlet that the Act creates for workers seeking to enter the collective bargaining process. Moreover, many of the particular collective bargains that were struck in the heyday of collective bargain- ingespecially in sectors of the economy that were one way or another insulated from compe- titiondo not seem to t the bill today. They were often designed expressly to constrain exibility and to lock in organizational com- mitments at a time when both employment and [52 organizations were much more stable than they are now. And collective bargaining sometimes committed employersthat is, employers com mitted themselvesto costly benets that were only viable as long as the industry was shielded from competition by technological, or trade, or regulatory barriers. _ But the genius of contract, including collec- tive contract, is that, unlike regulation, it can be tailored to the needs of particular parties and can be renegotiated and revised when the parties face new conditions and new op- portunities. That is not to say that everything should always be up for grabs. But we should not lose sight of the brilliance at the core of this 20"1 century innovation, and its modern relevance in what is widely seen as a postcom~ mand-and-control era. Still, I believe we must recognize that collec-_ tive bargaining as the Act conceives of it, and unions as we know them today, are not going to provide the answer for all of the workers who need a more effective collective voice in their economic lives. So workers and employ- ers are experimenting with alternative forms of employee representation. The room that employers have for experimentation is, as I've suggested, narrowly conned by Section 8(a)(2)too narrowly conned, in my view. But that's a familiar topic that [will not revisit here (lest it draw us back into the dark and pessimistic ruminations with which we began). Less familiar but well elaborated elsewhere by Professor Charles Morris is the idea of non- exclusive members~only bargaining under a long-lost original understanding of the Act.\" I will not discuss that idea further, though I believe it warrants close attention. What I do want to discuss is the experimental- tion that employees and their advocates are en- gaged in. Employees are exploring alternative strategiesalternatives to the traditional col- lective bargaining modelwfor aggregating and amplifying workers' voices and for improving their wages and working conditions. They are exploring political channels such as state and local legislation, as in the movement for living wage laws or for "pay or play\" health insurance LABOR LAW JOURNAL laws. They are organizing collective litigation, as in the case of' 'off- the-clock\" lawsuits and a multitude of Fair Labor Standards Act cases, as well as large- -scale discrimination cases. They are negotiating and participating in supplier codes of conduct and monitoring schemes, as in the case of the Greengrocers Code of Conduct orchestrated by the New York Attorney Gen- eral's Ofce. Employees' voices and interests are being represented in these efforts by a variety of groupssometimes AN ENTITY NEED HOT \"DEAL That is because the labor laws put constraints on labor organizations that, whatever their merits in the case of ordinary unions, may be entirely out of place, unnecessary, and suf- focating for these emerging not- quite-union associations. Various productive forms of employer cooperation with these associations might run into Section 8(a)(2)'s limits on em ployer \"support\" of labor organizations. Some publicity effortsrallies, marches, etc.might run into Section 8(b)(4)'s unions, but also other WITH\" EMPLOYERS IN THE FORM restrictions on econom- groups thatare not quite ic pressures aimed at unions-~that are locally OF COLLECTIVE BARGAINING TO \"neutrals." Labor or- based, often occupation BE A LABOR ORGANIZATION; ganizations may also be ally-based, and some- subject to the Landrum- times identity-based. '9 BUT IT MUST NONETHELESS DEAL Grifn Act 3 elaborate These experiments w11'1-1 EMPLOYERS DIRECTLY. AN reporting requirements both the new not-quite- and organizational rules union organizations and ENTITY DOES NOT NECESSARII-Y and standards 2 These the alternative strate DE AI. WITH EMPLOYERS BY, FOR restrictions are worth giesare cropping up avo1ding. especially almost literally out of EXAMPLE, SEEKING l-EGISI-AT'VE for new, experimental the grassroots. They may be the wave of the {inureeven a template for xture reforms, legal and organizational. But we won't know that until many years of experi- mentation begin to show what works in different settings. 30 how can the NLRA nudge along these new and varied efforts, and promote the broader goals of the Act? One small way that the Act and the Board can foster these e'orts is by attending the Act's protec tive awning but not necessarily pulling them inside the edicein other words, by being quick to dene employee activity in support of these eiforts as \"concerted activity for mutual aid or protection\" under Section 7, for whatever eedorn that affords workers to discuss and participate in these e'orts, but slow to dene the corresponding groups and organizations as \"labor organizations," which might constrain bottom-up experimentation with these alternative forms of collective action. LABOR UNIONS IN THE 21ST CENTURY OR ADMINISTRATIVE ACTION AGAINST THEM OR PUTTING PRESSURE ON THEM THROUGH PUBLICITY, PUBLIC PROTEST, OR THE LIKE- groups with limited re- sources.\" The question is whether the law per- mits them to do so. There is nothing novel in pointing out that there is space between the protections of Section 7 and the domain of \"la- bor organizations." The \"concerted activity\" that is protected by Section 7 obviously encompasses much more than activ- ity in support of a labor organization. We see that in cases like Washington Aluminum, 22 which protected a spontaneous walkOut by several non-union employees over unreasonably cold temperatures, and Easiest,\" which protected the workplace distribution of a union newsletter dealing with issues that were not directly re- lated either to the union or to these employees' own terms and conditions of employment, but that dealt with political issues of importance to \"employees as employees" more generally. A number of more recent Board decisions cast a shadow over the broad reach of Section organization "in which employees partici- 7, finding unprotected activity that is either pate"). That disturbing feature of the NLRA too focused on individual worker grievances would be mitigated by a narrower reading of or too focused on the concerns of non-work- "labor organizations" and of the terms that ers-clients or patients, for example25-either make up that definition. The Board might, for a little too selfish or a little too selfless. example, recognize that organizations that do These decisions do not directly threaten the not purport to engage in collective bargaining protection of workers who organize in uncon- and that are based outside of the workplace ventional ways around conventional workplace and are indisputably independent of any given issues, but they do raise concerns about the employer do not raise the sort of "company current Board's ungenerous posture toward union" concerns that manifestly led Congress workers who express their workplace concerns to draft such a broad definition of "labor without the benefit of legal advice or union rep- organization." Such organizations might be resentation. There is plenty of room within the accorded a rebuttable presumption that they language and authoritative caselaw of Section are not in fact "labor organizations."30 7 to cast a wide protective canopy over novel So there is space within the existing Act forms of worker protest and organization. between protected concerted activity and the "It is also clear that not all groups that aim remainder of the sometimes rigid and con- to improve wages and working conditions are straining edifice-space in which the NLRA "labor organizations" within the meaning of the might be useful in helping to protect some of Act.26 To be sure, the broad text of the NLRA's the novel emerging forms in which workers are definition of "labor organization" has been even trying to advance their shared interests at work. more broadly defined by the caselaw. To be a I would argue that the Board should endeavor "labor organization,"an organization or group to protect those new forms of collective worker must be one "in which employees participate" activity from employer reprisals and restraints and it must "exist for the purpose, in whole or without pigeonholing them too quickly into the in part, of dealing with employers concerning existing boxes and rules of labor law-that is, grievances, labor disputes, [wages and hours], it should exercise what discretion it has within or conditions of work."27 An entity need not the text and Supreme Court precedent to give "deal with" employers in the form of collective a broader definition of Section 7 rights and a bargaining to be a labor organization;28 but it narrower definition of "labor organizations." must nonetheless deal with employers directly. To illustrate the point, let us take an example An entity does not necessarily deal with em- of a good decision and a bad decision (unfor- ployers by, for example, seeking legislative or tunately made in that order) in the same case: administrative action against them or putting NLRB v. Motorola" from the early 1990s-an pressure on them through publicity, public especially good example because it falls within protest, or the like. Moreover, some organiza- the "sex, drugs, and rock-n-roll" genre that tions that advocate workers' interests or act always holds my students' attentions. When as watchdogs on their behalf, but that are not Texas Instruments announced a new drug-test- membership organizations, may not be organi- ing plan, a TI employee founded an organi- zations "in which employees participate."29 zation called CAPP-Citizens Advocating the Unfortunately, these definitional elements Protection of Privacy-to oppose employer mean that organizations seeking to avoid be- drug testing. CAPP soon undertook an Austin- coming "labor organizations" might be led to wide campaign for a city ordinance against em- give up some effective strategies (in order to ployer drug testing. Soon Motorola, another avoid "dealing with" employers), or, perhaps major high-tech employer with a large Austin even more troubling, to give up their demo- facility, announced that it was contemplating cratic aspirations (in order to avoid being an instituting its own drug testing plan at the 154 LABOR LAW JOURNALcorporate level-a plan that would cover the But the employer, perhaps anxious to pre- Austin employees unless local law prohibited serve its sovereignty in this regard, sought re- the practice. Around that time, several Mo- view in the Fifth Circuit Court of Appeals, which torola employees joined CAPP and began to denied enforcement because the employees support its campaign at their workplace. They distribution of CAPP literature at the workplace wore T-shirts and buttons ("Say No to Drug was not protected activity for mutual aid or pro- Testing"), and sought tection. According to to distribute CAPP lit- erature and membership THE BOARD MIGHT, FOR the court, the employees were not seeking to use information at Motorola EXAMPLE, RECOGNIZE THAT CAPP to advance their during non-work hours. ORGANIZATIONS THAT DO shared interests at work, By and large, manage- as the Eastex employees ment was tolerant of NOT PURPORT TO ENGAGE IN were using their union; some of these activities. But after consulting with COLLECTIVE BARGAINING AND rather, CAPP, an "outside organization," and its upper management at THAT ARE BASED OUTSIDE OF members who happened corporate headquarters, the plant managers re- THE WORKPLACE AND ARE to be employees, were using the workplace to fused to allow employ- INDISPUTABLY INDEPENDENT pursue their own outside ees to distribute CAPP political agenda. This literature at the work- OF ANY GIVEN EMPLOYER notwithstanding the fact place. Surprisingly, the DO NOT RAISE THE SORT that CAPP's and the em- employees found their ployees' immediate ob- way to the NLRB's of- OF 'COMPANY UNION" jective-the passage of fices and filed an unfair CONCERNS THAT MANIFESTLY a city ordinance banning labor practice charge. drug testing-would The case was not con- LED CONGRESS TO DRAFT have an immediate effect troversial at the Board. The General Counsel SUCH A BROAD DEFINITION on these employees' own working conditions. issued a complaint, and OF "LABOR ORGANIZATION." I suspect there would the administrative law be near-unanimous judge, affirmed routinely SUCH ORGANIZATIONS MIGHT agreement among labor and without comment by BE ACCORDED A REBUTTABLE law scholars, and even the Board, found the case to come squarely within PRESUMPTION THAT among union-side and management-side labor cases such as Eastex and THEY ARE NOT IN FACT lawyers, that the Board many others that held "LABOR ORGANIZATIONS." was right and the Fifth that employees were pro- Circuit was wrong in tected when they sought Motorola. The Board's to effect improvements broader view of concert- in their working conditions by going through ed activity is important, for it may determine political channels, and when they sought to use whether employees are protected when they a workplace forum to publicize those efforts seek to rally co-workers to join a "living wage" among their co-workers. This was concerted advocacy group. Or when they try to recruit activity for mutual aid or protection; it was pro- co-workers to join or support an immigrant tected by Section 7; and Motorola had violated rights group that seeks state or local reforms, or the Act by prohibiting it. A slap on the wrist-a a women's group that supports a Title VII class cease-and-desist order-ensued. action or collective FLSA litigation. Employees LABOR UNIONS IN THE 21ST CENTURY 155should be protected in these efforts, and under is little discernible risk to the public in taking Board law, they probably would be. 32 that path; there are plenty of laws outside the But let's turn to the other side of the led- four corners of federal labor law that regulate ger: Would CAPP, or the living wage advocacy violent, or coercive, or deceptive tactics if that group, or the immigrant workers group, be a is the concern. But within those wide bound- "labor organization" subject to the multiple aries, new thinking and new organizational constraints of the NLRA and potentially the forms are desperately needed to begin to close LMRDA? It seems clear that CAPP itself would the "representation gap" in the workforce and not be, insofar as its activities consisted of perhaps, too, the ever-widening wealth and organizing political support for a municipal income gap in the society. anti-drug testing ordinance. That would not So in close cases-where it is possible given constitute "dealing with" employers. But any the text and existing binding precedent-these of these organizations could be a "labor orga- new-style worker advocacy organizations, even nization" if employees participate (at least if if they have some direct dealings with employ- they participate as members), and if they do ers in their role as advocates, should not be deal with employers on terms and conditions corralled into the NLRA. It is a small step of employment.3 They mainly do not do that. indeed-much smaller than what is necessary They do not look or act like unions, and they in view of the problems workers face. But let us do not engage in collective bargaining. Nei- see what happens if we let a thousand flowers ther do they look anything like the old-style bloom-or let a thousand different constella- company unions or "employee representation tions of workers and worker advocates explore plans" that Section 8(a)(2) targeted. new ways to advance workers' interests-while These organizations represent something at the same time seeking to lower the hurdles new and different; they need some space to (or at least not to erect new ones) for employees evolve and to try out new ways to advance who wish to form a union and enter the more workers' interests without becoming entangled traditional but eminently flexible and renew- in the tentacles of the old labor laws. There able system of collective bargaining. A ENDNOTES First Nat'l Maint. Corp. v. NLRB, ity agreements, see James Brud- tain neutrality toward union Inc., 309 NLRB 990 (1992). 452 U.S. 666 ( 1981). hey, Neutrality Agreements and organizing campaigns violates enf'd, 35 F.3d 1148 (7% Cir. NLRB v. Kentucky River Com Card Check Recognition: Pros- the "hot cargo clause" of the 1994). munity Care, Inc., 532 U.S. 706 pects for Changing Paradigms, NIRA, 29 U.S.C. $ 158(e). 10 See RICHARD B. FREEMAN & JOEL (2001) 90 IOWA L. REV. 819 (2005). For an incisive critique of the ROGERS, WHAT WORKERS WANT Lechmere, Inc. v. NLRB, 502 Dana Corp. and Metaldyne General Counsel's suggestion 56-57 (1999 U.S. 527 ( 1992). Corp., 341 NLRB No. 150 that it might do so, see Matthew " Lance Compa, UNFAIR ADVAN- See Cynthia Estlund, Labor, 2004), reopens the question, W. Finkin, Employer Neutrality TAGE: WORKERS' FREEDOM OF Property, and Sovereignty After long believed to be settled, as Hot Cargo: Thoughts on ASSOCIATION IN THE UNITED STATES Lechmere, 46 STAN. L. REV. 305 whether voluntary recognition the Making of Labor Policy, 20 UNDER INTERNATIONAL HUMAN (1994). under such an agreement raises NOTRE DAME J. OF LAW, ETHICS, & RIGHTS STANDARDS 10 (2000). See John Logan, Consultants, the one-year "recognition bar" PUB. POL. 541 (2006) 12 On the New Deal commitment lawyers, and the 'union free' against withdrawal of recogni- On the broad definition of "la- to "fair" over "free" competition, movement in the USA since the tion from the union. Shaw's bor organization," see infra pp and to corporatist restraints on 1970s, 33 INDUST. REL. J. 197 Supermarkets, 343 NLRB No. 153-154. On what counts as ille- market freedom, and their influ (1992) 105 (2004), raised the ques gal interference or domination, ence on New Deal labor legis- A 2003 survey by Peter Hart ion whether employers were the Court in NLRB v. Newport lation, see Michael Wachter, found that 47% of non-union entitled to "waive" employees' News Shipbuilding Co., 308 Judging Unions' Future Using workers wanted union represen right" to a fully and hotly con- U.S. 241 (1939), cast a wide a Historical Perspective: The ation. See AFL-CIO, Protecting tested election in which they net by rejecting the relevance Public Policy Choice between Every Worker's Right to a Voice are exposed to employers' of either employee satisfaction Competition and Unionization, at Work, Labor Day 2003 Tool views on unionization. Another or the lack of anti-union animus 24 J. of Lab. Research 339 Kit. Wash., DC question concerns whether or purpose. More recent Board (Spring 2003). 7 For an overview and thoughtful an employer's agreement to law acknowledges and reaffirms 13 For an especially penetrating assessment of the rise of neutral- require its contractors to main- this breadth. See Electromation, examination of the Wagner 156 LABOR LAW JOURNAL