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Cemex and the Right to Organize: Three Theories of the Case


Brishen Rogers (@BrishenRogers) is Professor of Law at Georgetown University Law Center.

On August 25th, the National Labor Relations Board (NLRB) issued an opinion that may make it substantially easier for workers to obtain collective bargaining rights. The decision, which is quite important in its own right, also offers an opportunity to reflect on some alternative viewpoints within LPE scholarship. In this post, I want to suggest three ways of reading the case, which I’ll call the “liberal legalist,” the “progressive functionalist” and (taking the bait from Sam Moyn’s most recent post) the “low-key Marxist.” To be clear, while I link to various scholars’ work below in discussing each of these approaches, I don’t see LPE scholars as falling into rigid categories here. Many if not most of us will use multiple such theoretical approaches, as well as others.

Before turning to these theories, however, let’s review the basics on the case. Cemex Construction Materials Pacific, LLC (Cemex) involved a familiar fact pattern in labor law: workers filed for a union election, their employer repeatedly broke the law in the runup to the election, those unfair labor practices eroded the union’s support, and the union lost the election. For decades, the NLRB’s typical remedy in such cases has been to order a rerun election, or in some cases to order the employer to bargain with the union on the grounds that its lawbreaking made a fair election impossible. Also for decades, labor scholars have argued that those remedies are insufficient to deter unfair labor practices and protect workers’ rights to organize. In Cemex the NLRB’s General Counsel, who acts as a prosecutor in such cases, argued for a return to the standard of Joy Silk, under which an employer typically must recognize a union based on a showing of majority support, without an election. The NLRB did not adopt that approach, but it did change the rules. Now, when an employer is presented with a proper demand for union recognition, it must either recognize the union or file for an election. If the employer does not file for an election in a timely fashion — or if the employer or union files for an election, but the employer then commits an unfair labor practice that would taint the election results — the NLRB will order the employer to recognize and bargain with the union, obviating the need for an election.

The practical import of the case is best captured by the union organizer adage that “time is a white-collar weapon.” Unionization requires often-intense bonds of community and solidarity among workers that can withstand an employer’s near-inevitable resistance. When faced with a unionization drive, employers tend to retaliate against workers, to create a tense workplace atmosphere, and to put off the union election and meaningful collective bargaining. As time passes, workers may leave for other jobs, decide that unionization is not worth the hassle, or be fired for reasons related or unrelated to the drive. In all cases the result is a change in the workplace community and the culture of solidarity, and as a result organizers are constantly running to stand still. In this context, the Cemex framework should discourage employers from resisting unionization and therefore make it easier for workers to gain bargaining rights. This will require increased capacity at the NLRB to process union petitions and unfair labor practice charges, as well as favorable treatment of the decision by the Federal Courts of Appeals, neither of which is guaranteed.

Liberal Legalism

Turning now to legal theory. I’ll define “liberal legalism” here in minimalist terms as a commitment to individual rights, the rule of law, and neutrality toward the good. Understood in those terms, labor law and liberal legalism have had a somewhat fraught relationship over the years. Postwar liberalism often understood workers and management as having equal and reciprocal rights in the enterprise, even as postwar courts restricted workers’ powers of concerted action in many ways. Moreover, liberalism’s commitments to the rule of law can be deployed to undermine workers collective bargaining rights, at least insofar as those commitments recognize employers’ traditional common law entitlements. Perhaps most importantly, unionization and collective bargaining at times requires that individuals’ preferences yield to workers’ collective interest. Political conservatives have built on that fact to recast fair-share fees and other core elements of U.S. unionism as infringements of individual liberties.

Yet it seems to me entirely possible to justify the Cemex opinion on broadly liberal grounds. The NLRA protects workers right to organize, the Supreme Court has termed those “fundamental rights,” and any reasonable context-specific understanding of union organizing will recognize that employer opposition can thwart unionization even when all workers desire it. In that sense, Cemex will better enact workers’ uncoerced preferences toward unionization, even with those preferences understood as exogenous to the legal system. Cemex is also consistent with baseline commitments to the rule of law. The heart of the case, pages 20-30 in the NLRB’s slip opinion, present a careful and rigorous analysis of statutory purposes and key precedents, and how they have fallen short of protecting employees’ free choice as to unionization. This is welcome in light of various Trump-era NLRB decisions — not to mention recent SCOTUS decisions — that have felt crudely outcome-oriented and poorly reasoned on their own terms.

Progressive Functionalism

By “progressive functionalism,” I mean an approach that sees law as serving social ends, including protecting extant power relations (that’s the functionalism), while also seeking to use the law to reshape those power relations (that’s the progressivism). Compared to a liberal approach, a progressive functionalist approach might place less emphasis on rights-based arguments, and greater emphasis on the social and political-economic power relations that inform the decision. It might also embrace worker organization as a good in itself—rather than good insofar as it enacts workers’ preferences—on the grounds that working-class social power can counterbalance financial and business interests. (That enthusiasm should wane, of course, insofar as unions failed to represent non-white, non-male, or immigrant workers.) Such an approach might also draw attention to the timing of the opinion, viewing the policy change as a response to the recent upsurge in worker mobilization—not (just) to smart litigation strategies or the NLRB’s wisdom regarding optimal industrial relations policy.

There is, of course, no bright line between the liberal and progressive functionalist approaches, especially given the egalitarian sympathies of left liberals, and nearly all law professors’ commitments to the rule of law. To the extent that LPE scholars operate in this mode, however, Moyn is correct that we have not articulated a “general social theory of law on which our pluralistic normative claims rest,” a theory to rival left liberalism, law and economics, the legal side of critical race theory, and/or poststructuralist critical legal studies. Each of those bodies of thought sought to synthesize positive and normative interpretations of law—and the relationship between law and society or political economy—into a more-or-less coherent whole that could elucidate not just legal and policy outcomes but also law’s internal logic. To be sure, LPE scholars have taken important steps in that direction. Much prominent LPE work has offered a needed correction to the relative disregard of economic and social inequalities in recent mainstream legal theory, and the Britton-Purdy et al “Twentieth-Century Synthesis” article pointed out various paths open for progressive normative legal theory. In my view, LPE scholars’ lack of a grand unifying theory has so far been a strength, in that it has enabled many diverse sorts of projects to begin developing. But it does mean that “LPE” refers to a grouping of scholars with shared commitments rather than a discipline or school of thought.

Low-Key Marxism

The term “low-key Marxist” isn’t entirely novel but isn’t commonplace either. I’ll define it as a theoretical approach that takes seriously central concepts from the broadly-defined Marxist tradition—including capital, (racial) capitalism, exploitation, expropriation, and the historical development of productive technologies and social relations—but does so in a non-dogmatic, non-scientistic fashion. Where U.S. legal scholars have drawn on Marxism in the past, they have too often attacked strawmen, like the notion that law is part of a “superstructure” that rigidly reflects an economic “base.” Few in the Marxist tradition ever asserted as much, and in fact there is a rich body of sophisticated Marxist thinking on law, elements of which are currently being resurrected by legal scholars and combined with insights from CLS, as Moyn discusses in a recent essay that informed his post. Like early CLS, many in this tradition have drawn from Poulantzas’ and others’ insistence upon the relative autonomy of law from capital’s needs or capitalism’s systemic dynamics. (Over time many in CLS came to emphasize the autonomy side of that phrase, blunting its critical edge by suggesting there was no correspondence between law and social forces.) In Poulantzas’ view, the capitalist state is a site of struggle between classes and other social formations in which capital has systemic and perhaps decisive advantages over labor and other social groupings—but in which the state must sometimes limit capital’s power to ensure the stability of the system and its own legitimacy.

What would a low-key Marxist approach tell us about Cemex? In one sense, nothing at all. Marxist theories have sought to grasp the underlying dynamics of capitalism or racial capitalism, and therefore tend to operate at a high level of abstraction, such that they cannot decide concrete cases. Marxism’s struggle to explain legal developments was one of the charges leveled against it by CLS. And indeed, as CLS scholars and other institutionalists have argued, nations can govern labor relations and macro-economic matters in various ways that are recognizably capitalist: liberal, social democratic, corporatist, authoritarian, etc. To be clear, this limitation is not unique to Marxism: left liberalism does not command any particular form of union recognition either.

In my view, the Marxist theoretical tradition is compelling in part because it suggests a different set of questions for legal scholars. For example, it tends to view workers’ preferences as socially constructed and therefore endogenous to class and other power relations. In that sense, Cemex can be understood as a framework for encouraging class formation, rather than a means of enacting workers’ preferences. Moreover, the fact that wealthy nations have diverse labor relations systems highlights not just capitalism’s malleability, but also the limits of that malleability: private sector workers can only thrive when their employers are profitable, which makes unions structurally subordinate to capital. In that light, we might ask whether Cemex is a “non-reformist reform,” or a change to doctrine and policy that does not accept the basic hierarchies of the existing social order. My sense is that it could be if aggressively enforced, but that will require extensive mobilization by workers and their allies.

More generally, I wonder whether the notion of “varieties of capitalism” may have outlived its utility, and if legal scholars might usefully refocus on the commonalities among nations—or (better) on the overall institutional structure of the contemporary world system. Zooming out still further, there is exciting scholarship being done on the complex relationship among exploitation and expropriation, included and excluded workers—free labor, unfree labor, and resource extraction—both historically and in today’s economy, that can inform current and future labor scholarship. Finally, this tradition asks whether we can gain critical purchase on the historical evolution of law and legal discourse or consciousness by understanding capitalist development as a relatively exogenous force that shapes the legal system at every level.

What I’m sketching here is perhaps best called a broadly materialist approach to legal theory, where “material” includes both economic matters and other matters central to life, death, and thriving, including status-driven vulnerability to state and private violence. That approach would often be consistent with functionalism, at least insofar as both focus on how power relations shape law and (to a lesser extent) vice versa. It may also be consistent with various elements of liberalism, in much the same way that functionalism is, though it would emphasize that preferences and social relations are historically and materially constructed. The ultimate test of such an approach will be whether it generates testable and helpful theories of law and political economy, theories that account both for law’s relation to material factors and for law’s distinctive yet ever-shifting logic.