Labor and Employment Research Fund

A new crop of worker advocacy organizations has grown up in the last decade, and has coalesced into an organizational form known as the “worker center.” Just as worker centers have tended to shy away from utilizing NLRB processes to protect worker rights, the status of worker centers under the NLRA has remained cloudy and subject to debate. Specifically, the NLRB and the courts have not addressed whether organizations like worker centers, which seek to improve the lot of employees in marginal industries but in most cases do not aspire to negotiate with their employers, are statutory labor organizations. As the ROC-NY example indicates, worker centers that use aggressive tactics that constrain employer prerogatives will inevitably face employer-initiated litigation seeking to restrict their activities, invoking the various restrictions of the NLRA that hinge upon the “labor organization” definition. In this paper, I explain how the Act’s protections can be utilized by worker centers, and suggest a framework that adjudicators can use to address the question of worker centers’ status under the Act.

The NLRA is a mostly unexplored area for worker centers. As discussed throughout this paper, engaging the nation’s labor laws has risks as well as potential opportunities. Although worker centers can assist workers in using the rights the NLRA guarantees to all “employees” under Section 7 of the Act, they must be wary of the negative consequences that may result if they are categorized as NLRA “labor organizations,” which would subject them to various restrictions built into the law. Classification as a “labor organization” could also subject a worker center to the requirements of the Labor Management Reporting and Disclosure Act (LMRDA) of 1959, which includes financial reports to the U.S. Department of Labor and regulation of internal governance practices. In order to make clear what is at “stake” for worker centers with national labor laws, this paper discusses the positive rights, negative possibilities, and collateral consequences posed by the NLRA, LMRDA, and other laws related to labor.

First, in the following section, I discuss the emerging worker center movement, identifying the key features of worker centers that bear on their treatment under federal labor laws, and profiling four organizations that exhibit different tendencies within the worker center movement. Part III is a systematic over of how worker centers can use the employee protections offered by the NLRA, in particular the right to engage in concerted activity for the purpose of mutual aid or protection. As this section demonstrates, many worker center organizing activities will receive protection under the Act, and the jurisdictional limitations on coverage for the most part will not affect worker centers. However, recent cases suggest that certain types of concerted activity involving charged political speech, such as missing work to participate in mass rallies for immigration reform, may not receive the Act’s protection. Section IV canvasses the negative implications of federal labor law for worker centers, which mostly apply only if the organization in question is deemed a “labor organization.” For example, the NLRA restricts picketing by labor organizations in certain situations where a union election has recently been held, as well as most forms of secondary boycotts. The NLRA also restricts aspects of organizational form and operations, such as by requiring that hiring halls be non-discriminatory, and disallowing labor organizations to receive funds from employers. Potentially more worrisome is the LMRDA, which mandates that financial and other reports be filed with the federal government, and grants members of labor organizations a Union Bill of Rights and more possibilities to bring suit. Lastly, Section IV discusses other consequences of the Act, such as exemption from antitrust liability for the actions of labor groups and assesses whether the exemption applies to worker centers.

The remaining sections pick up on a larger debate about how worker centers should be treated under the Act. I begin in Section V by discussing in broad terms three different schools of statutory interpretation, and how the NLRB approaches questions of statutory interpretation. In Section VI I present three ways in which the question of whether some group is a “labor organization” may be approached. The first, which I dub the “traditional approach,” applies the “labor organization” definition to novel situations without reference to the legal or social context in which the question is raised. However, based on recent case law that has increased the Act’s flexibility to allow some internal employee participation plans for limited purposes, much worker center activity, and even dealings with the employer, will not rise to the level required to make out a statutory labor organization.

The remaining two approaches examine the “labor organization” question contextually, both with regard to the legal setting in which the question is raised and the broader factual scenarios envisaged by the Act’s founders as subjects of regulation. Through analysis of past cases, I attempt to demonstrate that the Board has always been sensitive to such contextual factors and purposive concerns. In fact, different rules seem to apply in different contexts; not only does the definition of “labor organization” seem to apply differently to various manifestations of worker activity, but more surprisingly, the term seems to take on different meaning depending on the statutory context in which it is raised.

Turning towards the nature of worker centers as hybrid social movement organizations that focus on the workplace, I examine how similar organizations have been treated by the Act in the past, and the underlying constitutional concerns that weigh against regulation of such organizations under traditional labor laws. In the background of this analysis are historical realities that should inform how the law develops to meet a new form of worker advocacy organization. The rise of worker centers takes place against an economic and political backdrop very different from that faced by the NLRA’s drafters. While the labor movement in this country has secured a relatively well-off existence for those lucky enough to be union members, the norm of unionization as well as the viability of the NLRA faces considerable doubt as it marches on past its seventieth year in existence. It is not surprising, then, that most worker centers have forgone traditional representation processes in favor of private litigation based on federal and state employment laws concerning wages, hours, and occupational safety. Rather than building a labor aristocracy, worker centers target the poorest workers who have the least stable employment. The immediate goal of such centers is not to build middle-class citizens, but to ensure minimum compliance with the law. As such, the worker center movement shares a common heritage with the 1960s civil rights movement: in the earlier struggle, participants waged a political and legal fight for equal treatment under the law, and a social fight to eliminate a system of second-class citizenship. Today’s marginal and often undocumented foreign workers share this cause and also wage their fight on these levels.

Therefore, it is not surprising that worker centers have made recourse to civil rights rhetoric and tactics to improve the conditions of the workers they support. Each of these tactics, including the publicized making of demands, the holding of rallies, consumer leafleting, and the initiation of lawsuits, have been accorded some degree of First Amendment protection. Looking at both the constitutional norms underlying worker center activities most likely to be challenged, as well as the purpose of the NLRA provisions most likely to be used to restrict those activities, I argue that the NLRB and the courts should be wary in subjecting worker centers to the limitations of the Act. However, in their protests, worker centers can easily be robbed of their cloak of civil rights petitioners to be left simple labor picketers. To the extent that worker centers approximate the functions and purposes of labor unions, this outcome seems appropriate.

Therefore, a principal goal of this paper is to provide guidance to worker centers on how to stay on the permissible side of the labor organization classification, as well as how to make the most of the protective aspects of labor law.