Jonathan R. Harkavy has taught labor and employment law at Wake Forest School of Law and corporate finance at Duke Law School and the University of North Carolina at Chapel Hill School of Law. During the summers of 2018 and 2019, he has been a visiting research fellow in the Labor and Worklife Program at Harvard Law School.
Charlotte Garden’s insightful essay at Take Care about how antitrust laws are being used as a bludgeon against union collective action immediately brings to my mind Andrew Strom’s OnLabor post about the so-called “Powell Memo.” My hope is that considering these two posts together will fortify what both OnLabor contributors have to say.
To refresh, when Lewis Powell was at the height of his influence as a private practitioner in 1971, he wrote a memorandum for the U.S. Chamber of Commerce that is now widely regarded as the blueprint for building a collective voice for the American business community. Witness Powell’s words about collective or unified action:
“But independent and uncoordinated activity by individual corporations, as important as this is, will not be sufficient. Strength lies in organization. . . and in the political power available only through united action and national organizations.”
Fast forward nearly fifty years from the Powell memorandum: We can now better appreciate (recalling Lewis Powell’s own words) what Charlotte Garden wrote about—the collective might of the business community wielding, of all things, the antitrust laws to sap the “strength [that] lies in organization” and hamstring the “united action” of working people.
And so, it is ironic in the extreme, if not downright hypocritical, for the premier exponent and beneficiary of collective action—the U.S. Chamber of Commerce—to attempt (whether by the antitrust laws or otherwise) to deny to individuals who work for its members the benefits of a collective voice and unified action.
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May 24
A majority of House Representatives sign a discharge petition for the Faster Labor Contracts Act, and the House Transportation Committee adopts a railroad safety amendment in the Build America 250 Act.
May 22
U.S. employers spend $1.7B on union avoidance each year and the ICJ declares the right to strike a protected activity.
May 21
UAW backs legal challenge to Trump “gold card” visa; DOL requests unemployment fraud technology funding; Samsung reaches eleventh-hour union agreement.
May 20
LIRR strike ends after three-day shutdown; key senators reject Trump's proposed 26% cut to Labor Department budget; EEOC moves to eliminate employer demographic reporting requirement.
May 19
Amazon urges 11th Circuit to overturn captive-audience meeting ban; DOL scraps Biden overtime rule; SCOTUS to decide on Title IX private right of action for school employees
May 18
California Department of Justice finds conditions at ICE facilities inhumane; Second Circuit rejects race bias claim from Black and Hispanic social workers; FAA cuts air traffic controller staffing target.