The American labor movement finds itself at a critical juncture. On the one hand, the popularity of unions is very high, with 70 percent of Americans expressing approval of unions. On the other, union density remains quite low, particularly in the private sector, where only six percent of workers are unionized. Moreover, the primary pathway through which union-supportive workers could organize—the National Labor Relations Act (NLRA), and its implementing agency the National Labor Relations Board (NLRB)—appears increasingly under threat. The Trump administration is currently trying to destroy the independence of the Board and, possibly, its functioning altogether. And courts have appeared receptive to arguments that the Board, and even the Act, are unconstitutional—a question that was well-settled for nearly ninety years. As recent commenters put it, the Act “is facing existential threats from legal challenges” that could leave the Act and the Board “on life support.”
Labor law scholars have already begun to suggest new legal pathways for organizing protections, such as the revitalization of state mini-NLRBs. This work is important and should grow. But we should also be careful not to rely on legal fixes alone. Existing legal protections have been ineffective, in part, because employers have shown a willingness to disregard them by firing workers for organizing and refusing to bargain in good faith. As I argue in this brief post, advocates and scholars must consider ways to reconstruct our long-eroded social norms against interference with labor organizing. We need to revive the social consensus that union-busting is morally, not just legally, wrong.
Labor Law and Social Norms
Scholars have long accepted that the law has an “expressive function.” In the words of Elizabeth Anderson and Richard Pildes, “At the most general level, expressive theories tell actors – whether individuals, associations, or the State – to act in ways that express appropriate attitudes toward various substantive values.” On this view, legal action and social norms display reciprocal causation: norms can form the basis for lawmaking or law enforcement, and laws can modify norms of behavior in the realms that they regulate.
Labor law, too, has an expressive function – or at least, it should. The NLRA prohibits employers from interfering with “the right to self-organization, to form, join, or assist labor organizations, . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” One would expect that the establishment of this right, and its protection by the NLRB, would tend to establish a public morality against interference with labor organizing rights. Just as environmental protection statutes express a social judgment about values worth respecting in economic activity – biodiversity, for example – so too would labor relations statutes express a similar norm about free worker association and organization.
The framers of the NLRA certainly intended to pass social judgment. Robert Wagner, the Act’s sponsor, viewed organizing rights as “at the bottom of social justice for the worker,” a view shared by his contemporaries. Wagner liked to say that the bill would “make the worker a free man.” Despite these ambitions, the labor movement has long struggled to establish in the public consciousness – before the passage of the NLRA or since – that worker organization is a “substantive value” that employers must respect.
The earliest labor organizers in the United States were treated as common-law criminals. In 1806, Pennsylvania fined eight shoemakers who organized a union in the infamous Philadelphia Cordwainers case. As Patrick Grubbs notes, the presiding judge, foreshadowing later debates, “used his charge to the jury to extol the ideals of a laissez-faire market” and “denounced the existence of journeymen societies, their use of strikes, and the artificial regulation this put on the market.” Contestation over the moral standing of unions continued into the early twentieth century. Union leaders spoke of labor organizing rights as “the inalienable rights of free men” and the fulfillment of the Thirteenth Amendment’s ban on involuntary servitude. Employers (and government officials) often labeled unionists “subversive” and “criminally treasonous” and accused unionists seeking even minor demands of radicalism.
The NLRA appeared to settle unions on a moral high ground. The Act, codified in 1935, prohibited interference with organizing rights as an unfair labor practice, and its drafters and early administrators invoked a moral vision of free worker association. Congress considered action even more far-reaching; the first draft of the Fair Labor Standards Act would have outlawed labor espionage and the employment of certain strikebreakers as “oppressive” and “an unfair method of competition.” In 1937, the Supreme Court affirmed the NLRA’s constitutionality, framing the statute as the simple codification of “a fundamental right” to labor organization. After this decision, businesses acquiesced to the Act’s validity, and even aggressive anti-unionists acknowledged the Court’s position. The employer’s brief in the famous Fansteel sit-down strike case, for example, compared the Fifth Amendment to “the coequal constitutional right of employees to band together for purposes of collective bargaining and to select their own representatives.”
There is some debate over the extent to which employers ever truly accepted the codification of union protections. At least superficially though, by the middle of the twentieth century, the labor movement appeared to achieve some social consensus that interference with organizing rights was morally wrong. Unions were very popular. In 1957, 75 percent of surveyed Americans approved of unions, a record high. And, more relevantly, violations of law were, on aggregate, few. That year, the NLRB had to reinstate less than 1,000 unlawfully discharged workers, down from nearly 8,000 in 1939.
Any consensus was short-lived. As Paul Weiler noted, employer unfair labor practices began to increase in the late-1950s. At the start of the 1980s, the Board was reinstating over 10,000 discriminatees and receiving over 31,000 charges of employer unfairness per year, the latter representing a 750% increase from 1957. Weiler, reviewing these facts contemporaneously, found that “[n]either the law nor NLRB practice has changed materially since the mid-1950s. What has changed is the willingness of employers to break the law when they feel they can get away with it,” reflecting in part “a growing social acceptance of such tactics.” In other words, social norms about labor-law compliance had changed. Violating the law to break a union had become okay.
In the following decade, the Reagan administration frayed any social norms against organizing interference even further. The administration’s mass discharge of striking air-traffic controllers invited private-sector employers to bust their unions in turn. At the same time, as Diana Reddy shows, the intellectual hegemonic shift to neoliberalism reduced public estimation of unions. Neoliberal theory replaced the Keynesian vision of unions as drivers of purchasing power central to national economic stability. Unions became “rent-seeking interest groups,” cartels that drag growth and advantage members at societal expense. In 2000, Human Rights Watch found that “[m]any Americans think of workers’ organizing, collective bargaining, and strikes solely as union-versus-management disputes that do not raise human rights concerns.” By 2009, the average American did not view the labor movement favorably: only 48 percent of Gallup poll respondents expressed approval of unions.
Interference as a Moral Wrong
Attitudes have changed dramatically in the past fifteen years. Today, the United States is experiencing a revival of support for unions and organizing. And unions are, as Kate Andrias has observed, advancing a renewed argument for the need for countervailing power to protect workers (and democracy). This argument is foundationally a moral one: “labor seeks to protect as fundamental the rights to organize, bargain, and strike – and in so doing, it demands the extension of democratic values into the putatively private domain of the workplace.” These demands – what Andrias calls a new “constitutional vision” – echo the Supreme Court’s description of organizing rights as “fundamental” and the Act’s proscription of interference with those rights as “unfair.”
Despite this shift, too many scholars continue to treat organizing rights as purely economic – rights that can be bought away by employers for the correct price. A common refrain in progressive labor-law scholarship is that, unfortunately, NLRA violations are just “economically rational” for employers. This observation highlights the need for certain important reforms – like punitive authority for the NLRB and enhanced penalties under the NLRA. But it also implicitly concedes that dollars and cents are all that count when it comes to labor-law compliance.
Supreme Court labor-law doctrine has long described the American collective-bargaining system as apportioning “economic weapons” between unions and employers: unions have the strike, while employers have the lockout. The economic rationality framing, without more, unconsciously accepts that labor-law violations are a legitimate economic weapon in the hands of employers. Labor-law obligations, this understanding says, are almost like contractual duties subject to efficient breach: If an employer is willing to pay the price to discharge a union organizer to defeat a unionization campaign they can do so. Thus, a professor could say that it would be “almost negligent for a company to allow unionization to happen.”
We do not view other types of workplace harms this way. Wage theft, for example, is also often “economically rational” for employers. Yet, wage-and-hour violations are broadly viewed as wrongful; indeed, the widespread adoption of the term “wage theft” demonstrates the general social condemnation of employers who do not comply with wage-and-hour statutes. Discrimination cases are even further removed from the economic in the public mind. Employment discrimination is understood as a moral wrong that contravenes values of human equality.
In the wage-theft context, Nicole Hallett has emphasized the importance of changing social norms around wage-and-hour violations to prevent wage theft: “In many cases social norms are more effective at regulating behavior and more resource efficient than traditional deterrence.” Employers, she argues, may be less inclined to break wage laws if they view “it as stealing as opposed to thinking about it as a regulatory violation,” and consumers may be “more likely to avoid a restaurant that is committing ‘wage theft’ rather than committing a minimum wage violation.”
Advocates and scholars should consider the relevance of similar conclusions to organizing rights. The point is not that all we need to do to stop union-busting is to come up with a new phrase to describe it. Nor is it to say that the process of changing social norms will be an easy one – and an invalidation of the NLRA might make it harder for workers to frame interference with organizing rights as violative of legal standards, even as it might catalyze public “backlash” in support of these rights. But it is to say that labor scholars need to give more attention to the process of shifting social norms. This work is particularly important, now, when even basic public enforcement of the Act is unreliable.
This work should be interdisciplinary: lawyers, historians, sociologists, and more all have something to say here. And it has begun already. Diana Reddy has argued that unions must develop the “claim that what unions do to improve the working lives of their own members is itself a common good.” Reddy and Seth Harris have analyzed the role of social norms in the challenges of organizing the American South. Kate Andrias has recognized that “labor consistently makes claims to higher law” that seek “to change our nation’s fundamental commitments, and, ultimately, to transform how we constitute ourselves as a nation.” Ben Sachs has advocated for mandatory notice readings—forcing employers to read a copy of the Board’s orders or the Act’s protections—on expressivist grounds: such readings operate as a “signal of the legal fact that employers are susceptible to labor law and to the unionization project labor law protects.”
Scholars (myself included) have recently spent far more time, though, developing proposals for legal reform. This work has been comprehensive and remains important. Today, however, as the enforcement and protections of the NLRA are uncertain, scholars should continue the work of Reddy, Harris, Andrias, Sachs, and others and study ways to remoralize organizing protections. The development of these norms may be a necessary condition for any broad-based organizing response to a potential invalidation of the NLRA.
