Cynthia Estlund is the Catherine A. Rein Professor of Law at New York University.
At last week’s NYU Annual Conference on Labor (an excellent conference, by the way), the most heated exchange during a panel on alternative worker organizations revisited the debate over whether “worker centers” are “labor organizations” subject to the NLRA. What is largely missing from that debate is a recognition of the serious constitutional questions lurking just behind the scenes.
Worker centers typically organize and serve low-wage workers – day laborers, farm workers, janitors, restaurant and fast food workers, car wash workers, and others. Many worker centers protest and publicize chronic employment law violations; some help workers seek legal redress, and some pressure employers to raise labor standards – for example, to pay a living wage. Nearly all operate on a financial shoestring, dependent on voluntary dues from low-income members, along with modest support from foundations or trade unions.
Despite their limited resources, worker centers have mustered extraordinary energy, and have become a thorn in the side of some employers. Hence the recent drumbeat from the Chamber of Commerce and others that worker centers, if they represent “employees” within the scope of the NLRA, are “labor organizations” with the same legal obligations and restrictions as the United Auto Workers.
The argument is founded on the NLRA’s broad definition of “labor organization: “any organization of any kind … in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”
For the many worker centers in which statutory employees participate, the main question is whether they “exist for the purpose, in whole or in part, of dealing with employers” on employment matters. “Dealing with” clearly reaches beyond collective bargaining, and includes a pattern of “bilateral exchange” between employee groups and employers. Thus far worker centers have not been found to meet that requirement. But as worker centers explore creative ways to induce employers to improve workers’ wages and working conditions, they may find themselves engaging with employers in ways that could count as “dealing with” employers, and could render them “labor organizations.”
One response is “so be it.” Worker centers that represent employees and deal with employers are subject to the NLRA, and that is that. But worker centers and their allies are anxious to resist that conclusion. It would bring into play restrictions on peaceful picketing that would be unconstitutional for ordinary voluntary associations, and could trigger detailed reporting and disclosure requirements and regulations of internal affairs under the Landrum-Griffin Act (though the latter will turn on the Landrum-Griffin Act’s slightly different definition of “labor organization”). Those burdens weigh heavily on traditional trade unions with their thousands of members, millions in membership dues, and sizable staffs. They might be fatal – as they are likely meant to be – for these low-budget, informal organizations.
So let us pull back and ask: What is the justification – the constitutional justification – for imposing the manifold restrictions of labor law on voluntary associations of workers engaged in peaceful advocacy and organizing? Indeed, one might ask: What justifies imposing these restrictions on ordinary unions? I think there is a partial and qualified answer to the second question, but that answer should doom efforts to subject worker centers to the constraints of federal labor law.
Labor law subjects unions to a unique regulatory regime. Unions are voluntary associations of workers with constitutional entitlements to freedom of expression and association. But unions are also subject to a constellation of sui generis rights, powers, restrictions, and duties – a quid pro quo by which the labor laws both constrain and empower unions beyond what is normal and permissible for voluntary associations. Unusual restrictions on unions might find their constitutional justification in the unusual legal rights or powers that labor law grants them. Or they might not, for the current quid pro quo is itself skewed and open to criticism on constitutional grounds. Either way, the frame for analyzing constitutional claims by and against labor unions should include both the quid and the quo of labor law. (I develop this argument and some of its implications – especially for the agency fee controversy – in a forthcoming article in the Michigan Law Review, from which this piece is drawn.)
Here’s the rub: Worker centers do not exercise or seek any of the unusual powers of unions under the labor laws. They do not purport or attempt to exclusively represent a group of employees, including non-members, on the basis of majority rule; they do not claim the legal right to compel employers to bargain with them, or to bargain for the right to collect dues from non-members (as unions in non-right-to-work states can do).
Without any of the distinctive legal powers of unions, worker centers are simply voluntary associations of workers pursuing shared interests through peaceful advocacy. (Their members may be engaged in “concerted activity” protected by Section 7 of the NLRA against employer and state interference; but that clearly does not make them “labor organizations.”) Without any distinctive legal powers, there is simply no constitutional justification for denying to worker centers the full freedom of expression, assembly, and association, and the freedom from intrusive regulation of their internal affairs, which other voluntary associations enjoy. A construction of the NLRA that would restrict worker centers’ freedom of association and expression would thus raise serious constitutional questions.
The doctrine of constitutional avoidance, often invoked in construing the NLRA, may do some useful work here. There is no reason to believe that Congress meant for the NLRA to cover worker centers, which have neither the unusual legal powers of independent unions nor the peculiar vulnerabilities of “company unions.” It is possible and sensible to construe “dealing with” to include the kind of regular, recurring exchanges with employers that are typical of both independent unions and internal workplace committees, but not the more episodic interactions typical of worker centers.
There may eventually be worker centers that do engage in regular “dealings” with employers; in that case it would no longer be possible to avoid the serious constitutional questions flagged here. But the questions would be no less serious. Unless and until they seek to exercise the extraordinary legal powers that unions gained under the NLRA, worker centers should be left to operate outside the quid pro quo that labor law imposes on unions, and in full possession of the constitutional entitlements that unions have lost along the way.