review of cambridge handbook of u.s. labor law for the

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Review of Cambridge Handbook of U.S. Labor Law for the Twenty-First Century (Rick Bales & Charlotte Garden eds.)

Christopher N. Grant & Harrison C. Kuntz*

IntroductionRichard Bales and Charlotte Garden have done both union-side

and management-side lawyers a great service in compiling the Cam-bridge Handbook of U.S. Labor Law for the Twenty-First Century (Handbook).1 The Handbook is comprised of over thirty essays, each its own chapter, written by leading labor law scholars. The book also includes chapters by practitioners, including former National Labor Relations Board member William Gould IV and union-side attorney David Rosenfeld.

The book is daunting in size and scope. It contains around 400 pages and covers complex topics ranging from federal labor law pre-emption, antitrust law, independent contractors, sectoral bargaining, and worker centers. It is not easy knowing whether the reader should start at the beginning and read all the way through or if it is acceptable to skip ahead to a favorite topic. The book is a smorgasbord of options, with some items you know and love, some you have never tried before, and some you may not even recognize.

Luckily, Bales and Garden have done a commendable job in orga-nizing the essays in the book, making it easy to pick up and put down over time. The Handbook starts by setting the current scene, not from a labor law perspective, but from a policy perspective. The defining issue of our time, according to Bales and Garden, is income inequality.2 Wages are not keeping pace with productivity gains, and, as a result, workers are falling further behind relative to capital. At the same time, Bales and Garden note that over the past fifty years unions have been in deep decline, with the percentage of union membership falling

*Chris Grant is a union-side lawyer at Schuchat, Cook & Werner in St. Louis, Mis-souri. Harrison Kuntz is a management-side lawyer at Ogletree Deakins, in St. Louis.

1. thE CambridgE handbooK of u.S. Labor Law for thE twEnty-firSt CEntury (Rich-ard Bales & Charlotte Garden eds., 2019) [hereinafter CambridgE handbooK].

2. Richard Bales & Charlotte Garden, Preface, in CambridgE handbooK, supra note 1, at xv.

LaborAndEmployment_Sep20.indd 381 11/2/20 9:36 AM

382 34 ABA JournaL of Labor & EmpLoymEnt Law 3 (2020)

to single digits.3 Are weakened labor unions the cause of increasing income inequality? Or do other factors better account for the growing wealth gap between the rich, the middle-class, and the poor, such as global trade, the decline of manufacturing in the United States, and changing tax policy? Professor of Sociology Jake Rosenfeld, in chapter two of the Handbook, states a strong case for the former, explaining how unions play an outsized role in redistributing wealth to workers through collective bargaining.4 Regardless, the Handbook’s agenda for solving the problem of income inequality is to fix labor law.5 How do we reform labor law to reverse union decline and, as a consequence, better protect workers?

Of course, the assumption, which Bales and Garden admit, is that unions need strengthening, that workers need more protection, and that the current system needs to be fixed. Is income inequality really a problem or just a (positive) effect of a well-functioning capitalistic system? Do workers actually deserve a greater share of the wealth pro-duced by business firms? Some readers would contest Bales and Gar-den’s premise that labor law needs reform. In fact, some might argue the opposite. One chapter author, Richard Epstein, takes this, less admired, view. Epstein argues for a return to common-law rules about unionization because current law leads to inefficient economic results.6 Other authors offer fixes that are more “neutral” on their face—such as reforming federal labor law preemption (Charlotte Garden7) or allowing substitutes for union security clauses like payroll deduction for non-union employees (Catherine Fisk8). But, in general, the con-tributors offer more “union friendly” fixes to labor law—for instance, moving toward sectoral bargaining (Kate Andrias9), making labor organizing a civil right (Richard Kahlenberg and Moshe Marvit10), and

3. Id. 4. Jake Rosenfeld, The Consequences of Union Decline, in CambridgE handbooK,

supra note 1, at 12. Rosenfeld digs into the research. Historically, economists believed that unions exacerbated income inequality by hoarding gains for their members at the cost of non-union workers. But, beginning in the 1980s, researchers found that unions actually had an equalizing effect, by setting minimum standards across organized sec-tors and by reducing the wage difference between blue-collar and white-collar workers. More recently, academics have looked at the “threat effect” of unionization on wages. Studies reveal mixed evidence. The threat of a union may cause an employer to pay non-union workers more but may also lead to employers paying unions workers less.

5. Rosenfeld, supra note 4, at 17. 6. Richard Epstein, Combatting Union Monopoly Power: The Contrast Between

Pre- and Post-New Deal Legal Regimes, in CambridgE handbooK, supra note 1, at 75, 87. 7. Charlotte Garden, Beyond the Race to the Bottom: Reforming Labor Law Pre-

emption to Allow State Experimentation, in CambridgE handbooK, supra note 1, at 46. 8. See generally Catherine L. Fisk, Union Security for the Twenty-First Century, in

CambridgE handbooK, supra note 1, at 33. 9. Kate Andrias, Union Rights for All: Toward Sectoral Bargaining in the United

States, in CambridgE handbooK, supra note 1, at 56.10. Richard D. Kahlenberd & Moshe Z. Marvit, Make Labor Organizing a Civil

Right, in CambridgE handbooK, supra note 1, at 97.


Review of Cambridge Handbook 383

strengthening the right to strike and protections against permanent replacements (Julius Getman11). This is not tinkering at the edges of the National Labor Relations Act. Rather, the authors force us to wres-tle with big reforms that would radically change labor-management relations and the practice of labor law.

The bulk of the Handbook is divided into six sections, each look-ing at a specific labor law problem contributing, in Bales’s view, to the decline in union density. There are sections on how labor law is out of date (as Cynthia Estlund phrases it, “ossified”12) in the face of hyper-mobile capital and political polarization; the fissured workplace and the rise of independent contractors; barriers to forming the collective bargaining relationship and to obtaining a first contract; and changes in the union’s role as society grows more diverse. Within each section are six to eight essays on a specific problem, such as the firm anti-trust exemption, the misclassification of employees, captive-audience speeches, gig workers, union security, and organizing employees in the hospitality industry. Each author addresses the problem, reviews the current state of law surrounding it, and proposes possible fixes.

You will ask yourself: why should union-side and management-side attorneys read the Handbook? What do you, a practitioner, gain from essays about labor law preemption and immigration law? We give you several reasons.

First, the authors provide detailed information on the policies behind and goals of labor law. The essays will deepen your understand-ing of complex issues that practitioners regularly deal with. It is good to know how the law applies. But it always helps, in writing briefs or in oral argument, to also know why the law leads to the result that you seek. Second, several of the essays are written by practitioners. These essays will help you understand how various labor and management- side attorneys view labor-management issues. For instance, any management lawyer benefits from knowing how a union-side lawyer tackles a secondary picketing claim or approaches bargaining a first contract. Third, sometime in the future, there may be labor law reform. It behooves us to understand what may happen, so we as practitioners are prepared.

It is on this third point, about the possibility of future reforms, that we focus this review. The Handbook includes so many essays, on so many disparate topics, that it is impossible to cover them all with the attention that each deserves. For this reason, we will focus on only a few essays. In particular, we have each asked ourselves, as practi-tioners, what would a world with some of these reforms look like for

11. See generally, Julius G. Getman, The Central Role of the Right to Strike, in CambridgE handbooK, supra note 1, at 291, 291.

12. Cynthia Estlund, Yesterday’s Labor Law and Today’s Challenges, in CambridgE handbooK, supra note 1, at 25.



our clients—unions and employers? How would some of these reforms change the problems that we see on a day-to-day basis?

Many of you may think these reforms are never going to happen. They are pie-in-the-sky thinking and not politically possible. Maybe. Then again, a few years ago, people thought a fifteen-dollar minimum hourly wage was fantasy. Likewise, who would have thought that mul-tiple Democratic presidential candidates would make sectoral bargain-ing a center piece of their labor platform?13 We should not so easily dismiss some of these ideas. Furthermore, by examining some of these reforms carefully, we as practitioners gain a greater understanding of how labor law can be used to solve our clients’ problems—how the law currently works, its defects, its advantages, and its loopholes.

In the next two sections, each of us will review a small group of essays. In Section I, Chris Grant, a union-side lawyer, will look at Rich-ard Epstein’s essay advocating for a return to common-law rules. What would this world look like for workers and unions? He will then explore the possibilities that such a legal regime would create for organizing and collective bargaining, including under antitrust law (as argued by Sanjukta Paul), for a revived right of assembly (as argued by Marion Crain), and for “minority” unions (as proposed by Charles Morris). In Section II, Harrison Kuntz, a management-side attorney and former National Labor Relations Board (NLRB) field examiner, will look at the factors motivating proposals for reform (as explained by Jake Ros-enfeld), suggestions on hot-button issues existing within the confines of our existing system of labor law, ambitious visions of systematic change (such as those devised by Cynthia Estlund and Kate Andrias), and the future role of the NLRB (as examined by former Board Chair-man William Gould IV).

Then, in the concluding section, we offer some joint thoughts on inequality and labor law reform. Lurking in the shadows behind the Handbook is the apparent paradox of the union member who votes for Donald Trump. Workers are not keeping up with the wealthy, but they are also voting for politicians who want to weaken unions. In our opin-ions, until workers believe that any particular reform speaks to their day-to-day struggles, it is not likely to succeed.

13. Paige Godden, 2020 Candidates Pitch Sectoral Collective Bargaining to Bol-ster Unions, iowa Starting LinE (Sept. 9, 2019, 2:02 PM), https://iowastartingline .com/2019/09/09/2020-candidates-pitch-sectoral-collective-bargaining-to-bolster-unions [https://perma.cc/9MD4-VM6N]. Note: Joe Biden’s has not gone as far. However, he has announced his support for banning permanent strike replacements and repealing restrictions on secondary boycotts. See The Biden Plan for Strengthening Worker Orga-nizing, Collective Bargaining, and Unions, JoEbidEn.Com, https://joebiden.com/empower workers/# (last visited Aug. 17, 2020).



I. A Union Lawyer’s View of Labor Law Reform As noted previously, Richard Bales and Charlotte Garden set a

bold agenda for the Handbook. However, the agenda is not as bold as it could be. The editors do not critique the economic and legal sys-tem itself—for exploiting workers and creating economic inequality, for focusing on the protection of property rights, or for the controls the system itself puts on worker action. Rather, this project is mostly reac-tive. It is an attempt to temper the effects of a relatively free-market system by relying on the law to fix our problems. These fixes can come either in the form of direct protection, such as anti-discrimination and minimum wage laws or, as Bales and Garden advocate, in the form of unions that, within a legally regulated environment, can advance and bargain for job protections and wage increases. The Handbook assumes that the answer to the law’s deficiencies and a weakened labor move-ment is more law. For better or worse, this view breeds a dependency of the law and courts that at times constrains unions. Rather than rely on workers and action as a source of power, unions are making arguments to legislators, judges, and NLRB members about whether workers should be allowed to organize, bargain, and strike.14

If any contributor to the Handbook questions whether we need more law to save the labor movement, it is Richard Epstein. But, not from the perspective of the political left—critiquing capitalism. Rather, Epstein’s view is from the libertarian right, and he argues that we need less governmental regulation.15 As noted below, union-side law-yers ignore critics like Epstein at their peril. Not only is his critique thoughtful, it is representative of how many politicians, economists, judges, and business owners think.

Unlike many of the contributors to the Handbook, Epstein wants to weaken, if not eradicate, the legal regime established in the 1930s to support unions.16 In its place, he advocates for a return to common-law rules about the employment relationship. In his view, an employer and employee should always have the right to deal or not deal with each other on whatever terms that they see fit.17 This is optimal contract theory for labor relations. The best results—for employers, employees, and the public—come from self-regulated contracts that allow people

14. Some argue that labor law actually inhibits union strength and instead con-tend that reform should not come in the form of more law and more rights but in lifting restraints and in more freedom from the law. See, e.g., Matt Dimick, Counterfeit Liberty, CataLySt (Spring 2019), https://catalyst-journal.com/vol3/no1/counterfeit-liberty [https://perma.cc/RBK8-AQMC] (tracing the evolution of labor law and union activity in Scan-dinavia, England, and the United States, and showing how the historical weakness of unions in the United States has led to overreliance on the law and constraints on worker action).

15. Epstein, supra note 6, at 86.16. Id. at 78. 17. Id. at 76.



and capital to search out the best deal possible. The results are supe-rior, in Epstein’s opinion, because these contracts honor individual autonomy and, in a competitive market, lead to the most efficient allo-cation of resources, at the lowest cost, and the highest level of output.18 By extension, efforts by the state to regulate contracts, and to impose particular outcomes, frustrate individual freedom and create ineffi-ciencies and costs in the form of higher prices and lower employment.19

This is not new territory for Epstein. Many of the ideas in his chap-ter were aired in an article he wrote in 1983 titled “A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation,” in which he criticized the elaborate administrative system of the National Labor Relations Act (NLRA).20 In that article, Epstein contended that the NLRA is not likely to achieve industrial peace and that voluntary individual contracts are more consistent with democratic values than collective bargaining, which, he believes, “conscript[s]” employers and makes dissenting workers subject to an organization that they do not want to join.21 Likewise, Epstein’s influential 1984 article, “In Defense of the Contract At Will,” sets forth a number of arguments against court-led and legislative efforts to create “good faith” and “for cause” exceptions to employee dismissals.22 Epstein explained there that employment at will advances individual autonomy and economic lib-erty. And he argued that employment at will works to the advantage of both employers and employees—in lowering costs for employers to rid themselves of poor performers, and in providing employees lever-age through the power to quit (and to affect an employer’s reputation), thereby creating space for both employers and employees to contin-ually make small adjustments in their relationship with “minimal bother and confusion.”23

Epstein’s chapter for the Handbook, entitled “Combatting Union Monopoly Power: The Contrast Between Pre- and Post-New Deal Legal Regimes,” sets forth the common law’s central principles for guiding labor-management relations and measures the NLRA and other New Deal legislation against each.24 First and foremost, under the common law, workers have the freedom to contract. 25 As a result, employers should be able to require employees to sign “yellow dog” contracts, whereby an employer can insist, on pain of termination, that an

18. Id. at 87.19. Id. at 76.20. Richard A. Epstein, A Common Law for Labor Relations: A Critique of the New

Deal Labor Legislation, 92 yaLE L.J. 1357, 1391 (1983).21. Id. at 1406.22. Richard A. Epstein, In Defense of the Contract at Will, 51 u. Chi. L. rEV. 947,

951–53 (1984).23. Id. at 951.24. Epstein, supra note 6, at 76.25. Id.



employee not join a union. By contrast, the NRLA’s requirement that employers recognize and bargain in good faith with a union restrains such yellow dog contracts.26 Second, the common law prohibits con-tracts in restraint of trade.27 Before the NLRA, courts applied antitrust law to unions just as they did to employers—for instance, to prohibit secondary boycotts as well as price-fixing.28 After the NLRA, however, unions were granted certain immunity to engage in anti-competitive behavior and even to enter into collusive contracts.29 Third and fourth, the common law prohibits the use of force to interfere with contracts and, relatedly, makes it a tort for anyone to knowingly induce an employee to breach a contract.30 Thus, courts used to enjoin unions from picketing and calling out workers to shut down a job. But, since the NLRA, courts have given unions more latitude to picket and strike.

Many would argue with Epstein’s telling of history and his reading of the NLRA. For instance, scholars have noted that collective bar-gaining was on the rise well before the 1930s, making the common law increasingly less relevant by that time.31 Also some have pointed out that the NLRA does not actually give unions that much latitude in picketing. Indeed, the current NLRB is thinking of outlawing inflat-able rat balloons.32 It is also not surprising that Epstein would find fault with New Deal legislation as contrary to common-law principles when Congress enacted much of that law to counter real or perceived failings of the common law to address the power of large industrial and financial organizations. Of course, the NLRA is inconsistent with the freedom of contract. That is the point of the NLRA.

As a union-side labor lawyer, it is impossible to ignore all the efforts to weaken labor law. We see litigants increasingly use the First Amendment to undermine collective bargaining—whether in strik-ing down state laws requiring public employees to pay agency fees, in attacking the concept of exclusive representation, or in fighting cities that have sought to give Uber drivers the right to collectively bargain.33 In addition, state legislatures are devising new ways to undermine worker protections. Various states have passed laws to

26. Id. at 77.27. Id. at 78.28. Id. at 76.29. Id. at 82.30. Id. at 77.31. See Julius Getman & Thomas Kohler, Common Law, Labor Law, and Reality:

A Response to Professor Epstein, 92 yaLE L.J. 1415, 1426 (1983). Others have challenged Epstein’s relatively rosy view of the employee’s power to quit. See, e.g., Craig Becker, Labor Law—The Law of a Balanced Society: A Reply to Professor Epstein, 41 Cap. u. L. rEV. 35, 44 (2013) (arguing that the potential for abuse of employer authority is not fully checked by the market in labor).

32. IBEW, Local 134, NLRB Div. of Advice, No. 13-CC-225655, at 12 (Dec. 20, 2018), https://www.nlrb.gov/case/13-CC-225655 [https://perma.cc/TWZ5-VA5G].

33. See generally Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2448 (2018).



protect franchisors from joint employment claims.34 And recently the Missouri General Assembly passed a law making all state employees at-will employees, which the state interprets to prohibit labor contract provisions requiring “cause” for dismissal and providing for grievance arbitration.35 If anything, the courts and state legislatures are taking us back to Epstein’s common-law world, without the NLRA and legally protected collective bargaining. Unions have to take such a world seri-ously, at least in those parts of the country where conservatives control state government, because that could become the new reality.

What does a common-law world look like for workers? We have some sense from the law that existed before the NLRA—including yel-low dog contracts and their contemporary analogue, mandatory arbi-tration agreements; holding unions liable under antitrust law; and injunctions against picketing and strikes. Yet, that world still includes unions. Even in the 1890s, workers wanted unions—that is why rail-roads were requiring their workers to sign yellow dog contracts. So, what can unions do in a common-law world to improve the lives of workers?

Several other contributors to the Handbook offer tantalizing answers to this question. In particular, labor law reforms that operate outside of the NRLA show us ways that unions can continue to advance worker rights, even in a common-law world without the NLRA.

Sanjukta Paul offers the most direct retort to Epstein. Her chap-ter, entitled “The Case for Repealing the Firm Exemption to Antitrust (A Modest Proposal; or, a Response to Professor Epstein),” counters Epstein’s argument that unions overly benefit from exemptions in antitrust law.36 Paul explains that courts long ago tilted the Sherman Act in favor of corporations by creating a “firm exemption” that views intra-firm conduct—decisions by persons within a business on setting wages and allocating resources—as less dangerous than inter-firm conduct—decisions made by separate businesses in coordination with one another.37 More broadly, she focuses our attention on the assump-tions of “competition” and the “free market” underlying Epstein’s view of the common law. These ideas are not inalterable principles, but legal

34. See, e.g., ohio rEV. CodE ann. § 4111.14(B)(3) (LexisNexis 2019) (“‘Employer’ does not include a franchisor with respect to the franchisor’s relationship with a fran-chisee or an employee of a franchisee, unless the franchisor agrees to assume that role in writing or a court of competent jurisdiction determines that the franchisor exercises a type or degree of control over the franchisee or the franchisee’s employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trade-mark, brand, or both.”); Ky. rEV. Stat. ann. § 338.021 (West 2019); miCh. Comp. LawS § 408.471(d) (2019).

35. mo. rEV. Stat. § 36.025 (2019).36. Sanjukta Paul, The Case for Repealing the Firm Exemption to Antitrust (A Mod-

est Proposal; or, a Response to Professor Epstein), in CambridgE handbooK, supra note 1, at 88, 88.

37. Id. at 89.



creations that embody policy choices and values just as much as collec-tive bargaining.

With respect to the “firm exception,” Paul notes that the drafters of the Sherman Act focused on whether conduct in question was socially or economically harmful, not on whether it was committed by a single firm on its own or multiple business in collusion with one another.38 One of the drafters’ driving concerns was that the legal system at the time gave too much power to individual corporations, like Standard Oil, to dictate the manufacture of goods and prices. In fact, what is a corporation but individual business people coordinating their actions and pooling their money within a legal-sanctioned form? It was only later, in litigation, that courts created a “firm exemption,” protecting harmful actions by single corporations however large. Antitrust law then shifted to policing collusion among companies. Decisions within a company were largely ignored and, in fact, defended, notwithstanding the harms caused by large powerful firms, on the basis that giving a company unfettered control over internal decision-making improves competition among similar companies.

With this context, Paul asks why the law should not also give workers the right to coordinate their actions in dealing with a busi-ness.39 If a company has the right to coordinate internal decision- making, shouldn’t workers have the right to coordinate amongst themselves too? Paul notes Epstein’s reliance on freedom to contract as a guiding principle. But, she asks, what about the freedom of workers to associate?40 Why do we value one freedom—the freedom of a single firm to contract with a single worker—over another—the freedom of workers to associate with one another? This question gets even more complicated when we look at the fissured workplace. If businesses increasingly rely on contracts with separate entities to operate, then those companies do not deserve a “firm exception.” Taking rideshare provider Uber seriously in its claim that drivers are not employees, its business is just a web of contracts with independent companies. If that is the case, then why isn’t Uber’s conduct in requiring drivers to sell their services at certain prices and per certain rules seen as anti-competitive? Similarly, McDonald’s restaurants seem to be engaged in anti-competitive behavior when they encourage a franchisee to sell a Big Mac at a certain price. The problem is that Epstein seems to value the principle of freedom to contract in some circumstances (in the case of a firm employing a worker on an at-will basis), but not

38. Id. at 91.39. Id. at 96.40. Id. at 90.



others (in a firm dictating prices to independent contractors and fran-chisees), based on the outcome that Epstein deems the best for reduc-ing inefficiency.

Paul’s point is not that a single firm should be denied the right to make decisions about wages and production. Rather, her point is that claims made by Epstein (and other libertarian scholars) that unions do not deserve any special exception to antitrust law embody value-laden notions about competition and the free market.41 The common law does not naturally give an individual firm, as opposed to multiple actors, special rights to coordinate action. That is a value decision that prizes the top-down, owner-controlled firm. Once we recognize this, we can determine whether to value other types of coordinated actors, includ-ing small business associations and unions. In the case of companies like Uber, cities and states should be able to create legal regimes, in a world without the NLRA, giving independent-contractor drivers the ability to coordinate with each other and make demands of Uber with-out running afoul of antitrust law. If independent contractors do not have the ability to set prices, then they should have the ability to bar-gain as a group.

Marion Crain is another contributor who offers a possibility of labor law reform in a common law world. Her chapter, entitled “Assem-bly and Collective Rights,” focuses on the right to assembly found in the First Amendment, as distinguished from the right of free speech.42 Because the right of assembly is rooted in the Constitution, her ideas do not depend on legislative reform. Nor are they subject to the com-mon law. In Crain’s view, the right of assembly offers crucial shelter to employees looking to organize, to express their values, and to engage in group action.43 She encourages unions to begin invoking the right in protests and in litigation.44

Crain’s chapter first reviews the history of the right of assembly.45 In the 1930s and 40s, the Supreme Court decided several labor-related cases on the basis of assembly rights, including in striking down a Texas statute requiring union organizers to register with the secretary of state. But shortly thereafter, the Court began to replace the right to assembly with an implied right of association tied to the right of free speech.46 Under this view, the right to form an association is only valuable as a means to express one’s views, not as something valuable in itself. Increasingly, the Court has rooted First Amendment cases in

41. Id. 42. Marion Crain, Assembly and Collective Rights, in CambridgE handbooK, supra

note 1, at 221, 221.43. Id. at 222.44. Id. 45. Id. 46. Id. at 225.



individual liberty. Even when the Court considers the right of groups to exclude others from their activities, such as in Hurley v. Irish Amer-ican Gay, Lesbian, and Bisexual Group of Boston,47 it views their con-duct—in that case, a parade—as speech.

For Crain, the right of assembly offers a powerful means to advance collective action.48 As opposed to individual free speech, the right of assembly is centered in solidarity. It protects the act of engaging with others, including the formation and governance of a group, as a good in itself, not just as a means for an individual to advance his or her own views. Further, the right of assembly values conduct.49 As labor lawyers know, courts have justified restrictions on picketing and group action as restrictions on conduct, not speech.50 But assembly is more than speech. Strikes and pickets do not derive their power merely from their participants’ views. They are actions of a group, typically rooted in place. For those who have been on a strike line before, you know that their meaning comes not just from words on a sign, but from people spending hours, and days, and weeks together, in one place, in the cold of winter or in the rain, speaking to and arguing with one another, standing up for what they think is right, and engaging with the public, whether by signs or patrolling, and urging others to join in their action and not cross their line. This does mean that strikers and picketers have the right to use force or threaten violence. But, requir-ing them to comply with rules designed to protect and promote indi-vidual expression ignores the unique nature of their collective action.

Crain explains that taking assembly rights seriously would reform labor law.51 She notes that the right of assembly can be used to chal-lenge restrictions on secondary and organizational picketing.52 The right does not turn on who is being targeted. Rather, unions can argue that they have the right to engage in peaceable group action against any business that in their view harms the interests of workers directly or indirectly. Crain also argues that the right of assembly can be used to expand notions of protected activity.53 For instance, workers are increasingly using group action to advance community-related goals. Under traditional labor law, this activity may not be protected because

47. 515 U.S. 557, 568 (1995).48. Crain, supra note 42, at 225.49. The plain language of the Constitution roots the right to assembly in conduct.

People have the right to “peaceably” assembly. 50. Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U.S. 769,

776–77 (1942) (Douglas, J., concurring) (“Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Hence those aspects of picketing make it the subject of restrictive regulation.”).

51. Crain, supra note 42, at 228.52. Id.53. Id. at 227.



it is not related to the workplace. But, under a revived right of assem-bly, employees could walk off the job in protest of changes in immigra-tion or sexual harassment law.54

Some of Crain’s ideas also challenge long-held union positions. Take for instance the exclusivity principle. On the one hand, if the right of assembly is centered on solidarity, then why shouldn’t a union be able to require an individual employee in the workplace to pay dues? In fact, the union is harmed if it is legally forced to incur the cost of representing a non-member. On the other hand, the right of assembly should give any group of employees, including a minority group, the right to take action against their employer. The right derives its power from participants in the group. Members demand improved working conditions, or they will strike or picket. But the right to assembly does not prohibit an employer from dealing with non-members on a sepa-rate basis.

A debate about the exclusivity principle is ongoing. On the one hand, scholars and activists have encouraged unions to consider mem-bers-only bargaining as a means to jump start organizing in southern states and/or advance the interest of otherwise unrepresented workers. Supporting this position, the Handbook includes a chapter by Charles Morris, who has argued for years that the NLRA requires employers to bargain with minority unions on a members-only basis.55 On the other hand, several conservative groups are supporting challenges to exclusive representation on First Amendment grounds, hoping to get the issue before the Supreme Court.56 I think it safe to say that Epstein would likely dismiss Morris’s ideas. If requiring an employer to bargain in good faith with a majority representative is inconsistent with common-law principles, then so would any requirement to bar-gain with a minority representative. Any obligation to bargain creates inefficiencies.

54. One problem for Crain’s reform idea is that state action is required for the protection of the First Amendment. The NLRA’s restrictions on secondary picketing may violate the right of assembly because the law makes the restriction. But the right of assembly would not apply to a private-sector employer firing an employee for striking or picketing, at least under current state-action precedent.

55. Charles J. Morris, Returning Members-Only Collective Bargaining to the American Workplace, in CambridgE handbooK, supra note 1, at 311, 311. See generally CharLES morriS, thE bLuE EagLE at worK: rECLaiming dEmoCratiC rightS in thE amEriCan worKpLaCE (2005). For additional thoughts on Morris’s perspective, see Catherine Fisk &Xenia Tashlitsky, Imagine a World Where Employers Are Required to Bargain with Minority Unions, 27 aba J. Lab. & Emp. L. 1 (2011).

56. See Mentele v. Inslee, 916 F.3d 783, 785 (9th Cir. 2019) (holding that “[the State’s] continued compelling interest in labor peace justifies the minimal infringement associated with [the union’s] exclusive representation”); see also Bierman v. Dayton, 900 F.3d 570, 570–71 (8th Cir. 2018) (holding that state law making union exclusive repre-sentative does not violate homecare providers’ right to free association under the First Amendment because the law allows them to form their own advocacy groups indepen-dent of the exclusive representative).



That said, Epstein is not saying that unions, at least as voluntary organizations, should not exist or be considered. He is not arguing for a return to the days when unions were considered criminal conspira-cies.57 And, in many ways, members-only bargaining is consistent with the common law. First, minority unions are completely voluntary. A worker can choose to join or not join depending on what type of deal the worker is offered versus what he thinks he can achieve on his own. Second and relatedly, minority bargaining eliminates the problem of conflicts of interest. In members-only bargaining, unions are not sub-ject to a duty of fair representation. An upset worker is not bound by the union’s decision-making and is free to leave the group and bargain on his own. Third, minority bargaining encourages competition. If a union is unresponsive to worker concerns, another can enter the work-place and seek to sign up members.

Of course, a regime of minority bargaining would require unions to reconceive themselves, both in how they organize and how they oper-ate financially. Unions would act more like advocacy groups that collect voluntary dues. Unions may not even bargain contracts with employ-ers, like the Wobblies, and instead rely on constant direct pressure on bosses to address workplace problems. Do employers really want that? And what about the potential of employees constantly striking and picketing? Under the common law, an employer is free to fire such employees. Is the potential disruption worth it, however?

There are also dangers to minority bargaining for workers. An employer can pit different minority unions against each other, creat-ing dissention so as to favor a weaker union against a stronger. In general, a minority union does not have the same power as a major-ity union that speaks with one voice. Employers sometimes like to sow discord within the ranks; but, if a majority union can maintain solidarity, it has more leverage. Relatedly, minority bargaining may make wage inequality worse. There is some tendency towards wage compression under majority rule. Higher-skilled employees may earn less relative to lower-skilled employees in the same unit, especially if the higher-skilled employees are outnumbered by the lesser-skilled employees.58 Under minority bargaining, however, these higher-skilled employees may seek a better deal on their own to the detriment of lesser- skilled employees.59

57. See Epstein, supra note 20, at 1364 (noting the common law’s “unfortunate early flirtation with the law of criminal conspiracy”).

58. This is not a given. For instance, even under majority rule, unions sometimes agree to two-tiered wage scales in order to protect the wages of more senior employees. Conversely, in minority bargaining, an employer may pay lesser-skilled employees more to counter the threat of unionization.

59. See Matthew Finkin, The Road Not Taken: Some Thoughts on Nonmajority Employee Representation, 69 Chi. KEnt. L. rEV. 195, 209 (1993).



No doubt, a common-law world would make life more difficult for unions. But one of few truths that I have learned over the years is that, no matter the status of the law, Workers will always be seeking to right some wrong. The Handbook gives union lawyers more ideas and ammunition. Whether through antitrust law, the right to assembly, or minority bargaining, there are still means for unions to advance the interests of workers.

II. A Management Lawyer’s View of Labor-Law ReformManagement-side practitioners often view proposals for labor-law

reform with a healthy degree of skepticism. Their skepticism arises naturally from the widely held belief that “reform” operates as a code word for “pro-labor” change. Indeed, most of the proposals advanced by the eminent collection of authors participating in the Handbook reflect goals of facilitating success in union organizing and collective bargain-ing efforts.

It would be a mistake, however, for management to dismiss such proposals as merely slanted advocacy on behalf of the opposition. To the contrary, practitioners of every background will benefit substan-tially from review of the reasons for these proposals, their potential implications, and the reader’s own assessment of future prospects.

Past stasis is not self-perpetuating. Even within our current sys-tem of labor law, national political developments have repeatedly set the pendulum of NLRB policy choices in motion.60 More broadly, the absence of fundamental statutory alterations to the National Labor Relations Act for over a half century does not insulate the current sys-tem from change. In fact, as of this writing, many political office-holders and candidates have expressed support for the PRO Act, which would dramatically upend the world of labor law within which current practi-tioners have worked throughout their entire careers.61

No one can reliably predict what changes, if any, the future will bring. Nonetheless, management representatives will find themselves best prepared for the next steps if they understand why changes have been proposed, the potential impact of alterations to the legal land-scape, and how management can or should operate within these sug-gested new environments. Not all such changes would necessarily impact management negatively. Some may even create opportunities

60. Ronald Turner, Ideological Voting on the National Labor Relations Board, 8 u. pa. J. Lab. & Emp. L. 707, 707–09 (2006); Samuel Estreicher, Policy Oscillation at the Labor Board: A Plea for Rulemaking, 37 admin. L. rEV. 163, 171 (1985) (“[A]brupt changes in policy appear[] to rework in wholesale major areas of Board law, often undone three or four years later.”).

61. Rep. Mark Pocan & Kenneth Rigmaiden, The PRO Act: Good for Workers and Good for Business, hiLL (Oct. 3, 2019), https://thehill.com/blogs/congress-blog /labor/464223-the-pro-act-good-for-workers-and-good-for-business [https://perma.cc /YCZ6-37XJ].



for savvy employers to advance their interests, both within their own workforces and vis-à-vis their competitors.

The Handbook provides a comprehensive preview of many of labor’s preferred developments. I therefore encourage management practitioners to review these proposals in depth. A thorough under-standing of these perspectives and ideas may pay dividends as future developments impact the day-to-day practice of labor law. Moreover, employer representatives would do well to avoid dismissing more ambitious proposals as impractical or unrealistic. Policy makers are free to put all options on the table, and “impracticality” does not equate to “impossibility.” The Handbook, though far from a source of clairvoy-ance, provides valuable hints on many of the potential paths that labor law could take in the coming decades.

In chapter 2 of the Handbook, Jake Rosenfeld describes the funda-mental motivation underlying many of the policy proposals contained herein.62 Specifically, Rosenfeld focuses on income inequality and the potential role that he attributes to unions in addressing that issue. Regardless of whether one agrees with Rosenfeld’s ultimate conclu-sions and recommendations, his use of quantitative scholarship in sup-port of qualitative arguments deserves commendation.

Rosenfeld begins by describing concurrent increases in measures of income inequality alongside the well-documented decline in union density.63 He comprehensively examines both historical and recent evi-dence linking unionization to measures of income inequality, including “union threat effects” causing employers to offer desirable conditions of employment as a disincentive to unionization. Ultimately, Rosen-feld acknowledges the need for additional data on this connection, but nonetheless concludes the available evidence suggests that unions do reduce income inequality.64

It is unsurprising that Rosenfeld reached this conclusion. For cen-turies, the age-old struggle between capital and labor has centered on the basic question of who should reap the gains of economic productiv-ity, and to what extent.65 Furthermore, income inequality strikes at the fundamental goal of most unions to capture as much wealth as possible for their members, generally to the detriment of management from a zero-sum perspective. Unions also typically aim to distribute that wealth with some measure of equality (usually governed by seniority considerations) amongst their members. The relationship between unionization and income inequality thus evokes little surface-level skepticism.

62. See generally Rosenfeld, supra note 4, at 12.63. Id. at 12.64. Id. at 21.65. See generally pauL J. mCnuLty, thE originS and dEVELopmEnt of Labor EConom-

iCS: a ChaptEr in thE hiStory of SoCiaL thought (1984).



Rosenfeld, however, does not stop there. Instead, he insightfully examines more indirect mechanisms through which unions can attempt to impact overall income inequality issues.66 For example, he explains that union-controlled pension plans can and do invest available funds in enterprises perceived to act consistently with labor’s values.67 From a practitioner perspective, this point would merit consideration in an environment where such funds possess substantial market power. If a business finds itself in need of capital, and labor-controlled institutions can provide such capital, then that reality may well influence its own labor relations practices.

Rosenfeld also examines an even larger, and often more visible, mechanism through which unions can influence income inequality. Rather than achieving incremental gains for individual workforces through collective bargaining and union-threat effects, unions often act as political interest groups.68 This function, as Rosenfeld explains, can alter overall governmental policies on local, state, and even national levels. When unions as a whole lack strength, their ability to affect income inequality through political advocacy is correspondingly low. Conversely, increased unionization (with the corresponding increase in the portion of dues which may be used for political purposes) would inevitably support a greater ability for unions to pursue redistributive policy programs.69

For management actors, the relationship between unionization and income inequality represents more than a theoretical debate over cause and effect within the American economy. To the contrary, the dis-tribution of income and wealth throughout industries, localities, and the national economy directly informs topics such as bargaining table proposals, incentives or disincentives to organizing, and the economic weapons available to parties. These dynamics encourage employers to understand both the consequences of the income distribution/unioniza-tion relationship, and how changes to one could affect the other.

The question of whether income equality for its own sake consti-tutes a desirable policy goal exceeds the scope of this review. What Rosenfeld effectively provides, however, is a demonstration of the underlying reason why other authors throughout this work appear to view pro-labor reforms as important and necessary. This perspective informs evaluation of all those proposals. It also forces the reader to

66. Rosenfeld, supra note 4, at 15–18.67. Id. at 17.68. Id. at 18.69. Importantly, though, such political successes also provide one commonly

advanced and logical reason for the overall decline of unions in the United States. Increased social programs, often enacted at the behest of unions, may well have dimin-ished the need for workers to turn to those same unions for provision of higher mini-mum wages and safety net mechanisms. See James T. Bennett & Jason E. Taylor, Labor Unions: Victims of Their Political Success?, 22 J. Lab. rES. 261, 261 (2001).



ask whether each proposal would actually diminish income inequal-ity and what potential unintended consequences that labor law reform could create.70

Following Rosenfeld’s explanation of a fundamental reason why other authors advocate labor law reform, those contributors populate the remainder of the Handbook with a wide array of policy options. Most of these options seek to provide unions with more tools to achieve organizing and bargaining successes. In this vein, some authors focus on familiar, yet still hotly debated, issues.

For example, Joseph Slater and Jeffrey Hirsch both examine the ongoing seesaw of joint employer standards. In Browning-Ferris Industries of California, Inc.,71 the NLRB under the Obama admin-istration altered the standard for joint employment. Its standard permitted consideration of potential, even if unexercised, control over terms and conditions of employment to establish joint employment of a bargaining unit.72 Now, the current Board has adopted a rule supersed-ing that decision, prohibiting consideration of such potential control, and requiring the joint employer to possess and exercise substantial, direct, and immediate control over essential terms and conditions of employment.73

Joint employment carries substantial implications for practi-tioners on both sides. Unions can leverage liberal joint-employment standards to enmesh major economic actors in labor disputes that they would rather avoid, particularly in the franchising context. As a result, management practitioners must factor the risk of changes in joint-employment standards into all manner of business relationships. The specter of joint employment forces employers to balance that legal risk against preferred arrangements in every context from supply chains, to subcontracted services, to overall business organization. If the broad joint-employment standards suggested by Slater and Hirsch were adopted, this balancing act would become even more important and detailed.

Similarly, the Handbook contains numerous examinations of inde-pendent-contractor standards, particularly within the on-demand economy. Slater, along with Kenneth Dau-Schmidt, Charlotte Garden, Seth Oranburg, Liya Palagashvili, and Katherine Stone all advocate

70. Rosenfeld, supra note 4.71. Browning-Ferris Indus. of Cal., Inc. 362 N.L.R.B. 1599, 1600 (2015), aff ’d, in

part, rev’d and remanded, 911 F.3d 1195 (D.C. Cir. 2018).72. See Joseph Slater, Some Problems with NLRA Coverage: Independent Contrac-

tors and Joint Employers, in CambridgE handbooK, supra note 1, at 115, 121; see also Jeffrey M. Hirsch, Twenty-First Century Employers, in CambridgE handbooK, supra note 1, at 128, 131.

73. 29 C.F.R. § 103.40 (2019).


398 34 ABA Journal of labor & EmploymEnt law 3 (2020)

for narrower constructions of independent-contractor status.74 Such a narrow construction would limit the exclusion of such individuals and entities from the NLRA’s protection of the right to unionize. In addi-tion to these arguments, Miriam Cherry considers the creative legal approach of creating a “third” category of workers between indepen-dent contractors and employees.75

The issue of defining independent contractors and employees, like joint employer standards, builds on recent oscillations in NLRB stan-dards. While former NLRB General Counsel Richard Griffin sought opportunities to declare misclassification of employees as indepen-dent contractors an unfair labor practice, and the Board previously used a narrow independent contractor test,76 the current Board has both rejected the viability of such allegations and used a broad legal standard.77

A narrower independent-contractor standard would raise sev-eral difficult questions for management-side practitioners. What if the purported “employee” herself is, in fact, an employer of others? What impact might corporate structure on each side of the equation have? How could a business obtain certainty on the independent con-tractor/employee distinction at the outset of the relationship? And, most importantly, how does one avoid inadvertently assuming all the obligations of an employment relationship when neither party desires nor intends such a result? Policy makers must balance these business uncertainties against the interests of organized labor, as articulated by the authors who address the subject in the Handbook.

Aside from these issues, some authors also suggest very spe-cific tweaks to NLRB processes and standards impacting union- organizing efforts. For example, Michael Oswalt advocates moving NLRB elections away from employers’ premises, and Paul Secunda seeks to significantly curtail employers’ rights to hold captive-audience

74. See generally Slater, supra note 72, at 115; Kenneth G. Dau-Schmidt, The Problem of “Misclassification” or How to Define Who Is an “Employee” Under Protective Legislation in the Information Age, in CambridgE Handbook, supra note 1, at 140; Gar-den, supra note 7, at 46; Seth C. Oranburg & Liya Palagashvili, Balancing Flexibility and Rigidity: Do Unions Make Sense in the On-Demand Economy?, in CambridgE Hand-book, supra note 1, at 179; Katherine V. W. Stone, Rupture and Invention: The Changing Nature of Work and the Implications for Social Policy, in CambridgE Handbook, supra note 1, at 154.

75. Miriam A. Cherry, Contemplating New Categories of Workers: Technology and the Fissured Workplace, in CambridgE Handbook, supra note 1, at 168, 169.

76. Memorandum from General Counsel Richard F. Griffin, Jr. on Mandatory Sub-missions to the Division of Advice to All Regional Directors, Officers-in-Charge, and Res-ident Officers (Mar. 22, 2016) (seeking opportunities to allege misclassification unfair labor practice theory); FedEx Home Delivery, 361 N.L.R.B. 610, 611 (2014), enforcement denied, 849 F.3d 1123 (D.C. Cir. 2017) (adopting narrow standard).

77. Velox Express, Inc., 368 N.L.R.B. 61, 62 (2019) (rejecting misclassification unfair labor practice theory); SuperShuttle DFW, Inc., 367 N.L.R.B. 75, 75–76 (2019) (adopting broad standard).

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speeches during campaigns.78 From a management perspective, these suggestions have significant flaws. Oswalt’s approach raises practi-cal and logistical concerns, including a likelihood that other election mechanisms could inevitably diminish turnout.79 Secunda’s argument encroaches far too deeply upon employer free speech, the intent of Section 8(c) of the NLRA, and even the First Amendment to tolerate. Nonetheless, the mere presence of such suggestions within the Hand-book demonstrates the breadth of current ideas with which advocates on both sides should familiarize themselves.

Perhaps the most thought-provoking works within the Handbook examine ideas for completely new conceptions of our system of labor relations. For instance, my colleague Chris Grant above describes the nuanced implications of Marion Crain’s approach to freedom of assembly and potentially diminished emphasis on the principle of exclusivity.80 Such a change would unquestionably alter the field sig-nificantly, and it is unclear whether labor or management would bene-fit more from these developments.

Cynthia Estlund similarly proposes a wide range of far-reaching reforms, including one that could fundamentally alter the traditionally adversarial relationship between labor and management.81 She indi-cates a favorable view of the TEAM Act vetoed by President Clinton in 1996, which would have loosened the restrictions on labor- management cooperation imposed by section 8(a)(2) of the NLRA.82 Although sec-tion 8(a)(2) aims at preventing the “company unions” prevalent at the time of the Act’s passage, the TEAM Act would have allowed employers to more freely utilize organizations of workers to improve workplace issues.83

Legislation such as the TEAM Act, as envisioned by Estlund, would greatly alter the default of opposition between labor and man-agement. Many management representatives would welcome the opportunity to collaborate with nontraditional groups representing employees, as opposed to the exclusively conflict-based model of cur-rent labor-management relations. Successful collaboration would

78. See Michael M. Oswalt, The Power of Place, in CambridgE Handbook, supra note 1, at 208, 208; Paul M. Secunda, Captive Audience Meetings: The Right Not to Attend, in CambridgE Handbook, supra note 1, at 245, 246.

79. Oswalt, supra note 78, at 219–20.80. See supra, at 390–92.81. See generally Cynthia Estlund, Yesterday’s Labor Law and Today’s Challenges,

in CambridgE Handbook, supra note 1, at 25, 25–33.82. Id. at 26.83. Apart from potential statutory changes, the Board recently took a step in this

direction by applying a narrow approach to Section 2(5)’s definition of “labor organiza-tion” in the section 8(a)(2) context. T-Mobile USA, Inc., 368 N.L.R.B. 81, 81 (2019). The absence of “labor organization” status for an employee group allows it to operate under a lawful “suggestion box” model without running afoul of section 8(a)(2). Id. at 86.

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undoubtedly require different skill sets than those most often utilized by management currently, but development of those skills could help improve labor relations in more adversarial circumstances as well. Consequently, Estlund’s embrace of TEAM Act principles represents the type of far-reaching and fundamental reform that could signifi-cantly improve our system of labor law if designed properly.

Kate Andrias provides another vision of the future that deviates substantially from the current realities of labor law. Andrias argues that sectoral bargaining should be adopted in the United States as the next step beyond national governmental regulation and industry- wide social justice campaigns.84 This change is, very apparently, a rad-ical proposal. It seemingly runs contrary to well-established notions of bargaining units based on individual employers (or at least com-mon control over terms and conditions of employment) and competi-tion amongst business within industries on all aspects of the business, including labor costs. Sectoral bargaining would also undermine indi-vidual autonomy and majority rule. After all, the prospect of sectoral bargaining gives little or no consideration to whether the affected workers actually wish to be represented by the industry’s labor organi-zation. Such a system would also introduce substantial economic risks. Massive disruption to consumer markets could occur in the event of a work stoppage, and industry-wide failures resulting from closely inter-related economic risks would create business uncertainties across the economy.

Needless to say, the nature of labor-law practice would change dra-matically under a system of sectoral bargaining. The system would likely require management representatives, like many unions cur-rently, to develop a specialty within a specific industry. Such repre-sentatives would then experience professional cycles directly tracking the lives of their collective bargaining agreements. When the time for bargaining arrives, the pressure on all parties to reach a deal, lest economic catastrophe result, would quickly reach a crescendo. These circumstances would also encourage greater involvement by govern-mental actors to help prevent major disruption to an entire industry.

In Andrias’s view, the potential benefits to the labor movement outweigh the overall drawbacks of sectoral bargaining.85 Regardless of one’s opinion of her idea, though, it cannot be denied that she offers a very different and ambitious vision. Even mere consideration of the implications of sectoral bargaining evokes interesting thoughts about the impact of collective bargaining on competition in our current sys-tem, and how the law impacts those considerations.

84. See Andrias, supra note 9, at 63.85. Id. at 59.



Ultimately, whether any future changes to our system of labor law occur, and whether such changes come in the form of minor adjust-ments, final resolution of persistent issues, or complete reform, this author hopes that the NLRB remains the fulcrum point of that system. The Board, for all its real or perceived faults (as pointed out in the Handbook and amongst practitioners on both sides), serves a critical role in our economy. Its adjudicative processes and professional staff have served for over eighty-five years as a model for peaceful resolu-tion of labor disputes.

In this regard, former Board Chairman William Gould IV’s exam-ination of the agency’s future raises significant questions. On the one hand, Gould suggests that the NLRB should do more to advance the interests of labor, and he decries political influences on its processes.86 Congress, however, properly designed the Board as a neutral arbiter of labor disputes, and it should continue to function in that manner. Meanwhile, Congress also designed the Board to respond to politi-cal influences. Though references to “politics” often bear a negative connotation, the Board’s structure allows it to adapt to changing cir-cumstances and could even allow it to facilitate many of the reforms suggested by both labor and management advocates.

On the other hand, Gould’s analysis clearly recognizes and values the NLRB’s contributions to our field and to society as a whole.87 The Handbook provokes great thought regarding the future of labor law. Any transition from thought to practice, regardless of whom it bene-fits, should run through the Board as one of the federal government’s most venerable and capable agencies. For now, though, the Handbook provides a valuable resource for understanding what could be on the horizon.

ConclusionWe end this review where the Handbook begins—concerns held by

many stakeholders about economic inequality. In recent months and years, political actors from both major parties have observed that the country is experiencing the greatest disparity in wealth since the Great Depression. According to the news of the day, a few of the wealthiest people in the United States own more than fifty percent of domestic wealth.88 This circumstance is what drives most of the reforms in the Handbook. Yet, we cannot help but ask, if inequality is such a problem,

86. See William B. Gould IV, The National Labor Relations Board in the Twen-ty-First Century, in CambridgE handbooK, supra note 1, at 34, 34–35.

87. See id. at 37–42.88. Noah Kirsch, The 3 Richest Americans Hold More Wealth Than the Bottom 50%

of the Country, Study Finds, forbES (Nov. 9, 2017, 12:08 PM), https://www.forbes.com /sites/noahkirsch/2017/11/09/the-3-richest-americans-hold-more-wealth-than-bottom -50-of-country-study-finds/#1fe914683cf8 [https://perma.cc/G86Y-9L9F].



and if unions present themselves as the answer, why hasn’t union-friendly labor-law reform already occurred?

Jake Rosenfeld gives one explanation. He argues that politicians are increasingly less responsive to lower wage constituents as they rely more on a few wealthy donors.89 While both unions and businesses can make independent expenditures, unions as a group do not have nearly the resources as large companies and certain social welfare organi-zations to spend on political campaigns. At the same time, as unions decline in strength, workers tend less and less to act as cohesive voting blocs in the political process. Historically, unions have been miniature schools for democracy. They teach workers the habits of civic partici-pation, whether in speaking with co-workers, arguing for their rights, or formulating strategies. Unions also encourage employees to involve themselves in the political process—to vote and to run for office.90 It stands to reason that, as unions have declined, so too has their ability to achieve their desired political outcomes.

Another explanation for the lack of union-friendly labor law reform is that it simply is not a good idea and that people have actually con-cluded that it will not diminish inequality. This explanation has some appeal in that many politicians, judges, and business owners likely sympathize with Epstein’s views about the free market and competi-tion. But there is also reason to doubt that people are fully convinced that workers would be better off in a common-law world. Lurking in the shadows, behind the project of labor law reform, is an apparent paradox.

Analysts documented a pronounced shift among union voters in the 2016 presidential election: a much higher percentage of white men in labor unions, as well as more white women and nonwhite men in labor unions, voted for Donald Trump in 2016 than for Barack Obama four years earlier.91 Why did these voters choose a politician who sup-ports efforts to weaken unions, when those groups previously provided a reliable source of pro-labor votes? It is not likely that union members are intentionally voting against their self-interest. At least anecdotal evidence shows that unions members still support worker-friendly pol-icies. For instance, in 2018, a Missouri right-to-work ballot initiative failed, while Missouri voters also passed an increase in the minimum

89. Rosenfeld, supra note 4, at 20.90. Unions are not the only institutions suffering a drop in membership. Evidence

shows a decline in social intercourse across the board. Even prior to the COVID-19 pandemic, research suggested that we now sign fewer petitions, belong to fewer orga-nizations that meet, know our neighbors less, meet with friends less frequently, and even socialize with our families less often. See generally robErt putnum, bowLing aLonE (2000).

91. Nate Silver, Silver Bulletpoints: The Union Vote Could Swing the Election, fiVEthirtyEight (May 2, 2019, 7:08 AM), https://fivethirtyeight.com/features/silver -bulletpoints-the-union-vote-could-swing-the-election [https://perma.cc/5MMX-SQEE].



wage by over sixty percent, notwithstanding that Missouri decidedly voted for Donald Trump in the 2016 election.92

We make this point not to explain the paradox of the union Trump voter. Rather, the point is that mere ideas, however good or well- reasoned, are not sufficient, whether to weaken or strengthen unions. For any reform idea to gain widespread political support, it must speak to workers directly and to their identity. It is not now clear whether the advocates of labor-law reform still possess the capacity to moti-vate such broad support. Workers vote against right-to-work and for increases in the minimum wage because they understand that such laws hurt or help them. They may vote for Donald Trump and simi-larly minded politicians because those candidates promise to save their jobs and fight for their interests. But those workers are not likely to support sectoral bargaining, or a return to common-law rules, or other reform ideas unless and until they are convinced that such ideas speak to their day-to-day struggles.

Precisely how pro-labor advocates could make such a case is a topic far beyond the scope of the Handbook. Modes of communication and political activism are evolving at a faster pace than ever, and our next national elections will provide additional insight into what does and does not appeal to American workers. Members of both sides of labor practice will anxiously await those developments and continually gauge what policies may or may not be feasible in the coming years. For now, though, the Handbook provides a valuable and comprehen-sive resource for understanding the potential reforms that unions may seek in the event of political success. For that reason, we encourage labor practitioners of all stripes to review its proposals, evaluate them critically, and dedicate substantial thought to what the future of labor law may hold.

92. Missouri Proposition A, Right to Work Referendum (August 2018), baLLotpEdia, https://ballotpedia.org/Missouri_Proposition_A,_Right_to_Work_Referendum_(August _2018) [https://perma.cc/228L-DSEE]; Missouri Proposition B, $12 Minimum Wage Ini-tiative (2018), baLLotpEdia, https://ballotpedia.org/Missouri_Proposition_B,_$12_Mini mum_Wage_Initiative_(2018) [https://perma.cc/KFT2-GD2L].


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