Labor Law as a Shield

The law is impossible to separate from labor organizing, just as it is difficult to extract from any aspect of modern American life. Laws govern so much of what we do every day, particularly in the labor and employment context. But notwithstanding the centrality of the law to workers and organizers, it can be a mistake to treat organizing as a fundamentally legal struggle.

While the law can offer aid and protection in specific instances, it is not the primary or even a secondary lever by which workers can best apply their power. Economic and political power, wielded through collective action built and maintained from common bonds, continue to be the strongest and sharpest tools for creating transformative change.

Accumulating and deploying economic and political power can be a dangerous business, and the law can offer narrow but crucial protections to workers and organizers as they undertake that work.

“The best way to think of the law is as a shield, not a sword. The law is not an especially good way to change things. But it can give you some real protection as you try to change things in other ways.”

Staughton Lynd and Daniel Gross, “Labor Law for the Rank and Filer: Building Solidarity While Staying Clear of the Law

Organized labor could not exist without labor laws

The steel spine of labor protections is a millennia-old legal device that also undergirds nearly every other economic interaction: the contract. The goal of labor organizing — a collective bargaining agreement — is, after all, just a contract: a promise to act in certain ways with the threat of enforcement ensuring those promises are kept. Without contacts, employers would be able to make concessions under pressure only to withdraw them when they think no one else is watching.

Contracts had been available to some (white, male) workers since before the Industrial Revolution, and, by the 1930s, were available to most. Yet Congress enacted the Wagner Act in 1935 to protect labor organizing and encourage the development of organized labor. Why? The status quo before the Wagner Act allowed employers to do everything in their power to prevent workers from demanding and receiving enforceable contracts. This included coopting local law enforcement and flooding state laws and legislatures with anti-union statutes. Employers would even petition federal courts to keep members of the largest economic class in America from accessing the legal tools that the rest of the country took for granted.

Your rights as an organizer

That is why federal law now establishes and protects the rights of workers to engage in concerted activity to improve their workplaces. It’s why we have the right to form, join, or assist a union to negotiate with our employers over the terms and conditions of our employment. It’s why we also have the right to picket, to protest, and — in many cases — to strike: so we can force employers to the bargaining table or to hear our concerns about our work and workplaces.

Without these legal protections, employers would be free to use whatever financial, social, or physical force they can muster to alienate and exploit their workers. They would also be allowed to return to the days of wielding the law — whether a federal judge’s injunction or a local sheriff’s billy club — as a weapon against workers.

Labor laws and other legal mechanisms are a poor mechanism for change

For all the good the law has done to empower workers and organizers to pursue collective action and economic self-defense, it makes for a poor means of enacting affirmative change, for at least three reasons.

Fighting the Gatekeepers

First, legal solutions tend to be top-down affairs. The two primary ways of changing the law, and thus of changing society through the law, are by lawmaking and litigation. Lawmaking is the process of drafting, debating, and enacting legislation. Litigation is the process of enforcing the terms of that litigation through the court system.

Lawmaking

Lawmaking is accomplished by lawmakers, and laws are written either by or with the assistance of experts, academics, advocates, lobbyists, and others whose professions are the very definition of “insider.” The emails, phone calls, texts, and direct messages of those insiders occupy the overwhelming share of lawmakers’ attention That is why broadly popular laws are so uncommon and are so often undercut by follow-on legislation that reeks of capitalist interference (as occurred with the 1947 Taft-Hartley Act following the 1935 Wagner Act).

Litigation

Litigation must end in some kind of decision: either from the National Labor Relations Board (NLRB), a federal judge or panel of judges, or the Supreme Court. The composition of the NLRB changes with every presidential election, and conservative presidents appoint reliably anti-worker members to the NLRB, where they serve for up to five years. Seven in ten federal judges were either prosecutors or corporate lawyers before taking the bench. Empirical studies of those judges’ rulings also show that judges who spent their careers siding with corporate interests and protecting private property — even those appointed by Democratic presidents — are significantly more likely to rule against workers.

Thus, making change through the law means convincing the gatekeepers at the top to understand and then take a stand for working people in the middle and at the bottom. Though it is possible, it is difficult, and it is unlikely.

High Financial Costs

Second, changing the law is expensive. Lawmakers have grown accustomed to the way those career insiders interact with them: the way their legislation is drafted and presented and the kinds of political advantages, including campaign and super PAC contributions, that cooperating with those insiders can provide. All but a handful of lawmakers tend to expect similar treatment from any group that wants their attention or their vote, regardless of the issue in question. Being heard and being listened to costs money — money that could be better deployed elsewhere, particularly because any return on money spent to change the law is speculative at best.

Litigation is hardly better. The kind of litigation that could result in genuinely meaningful change across industrial sectors and across society often requires large numbers of lawyers, even multiple law firms, as well as costs for investigators, experts, and dealing with large volumes of documents and witnesses. Well-heeled litigants with deep pockets tend to bury smaller parties in what they call “paper”: frivolous filings and other motions that run up the cost and run out the clock until someone can’t afford to litigate any longer. And that is just at the trial level — parties can and often do appeal, which can result in major costs stretching out over as much as a decade.

The Waiting Game

Third, the law is a poor mechanism for change because is so time-consuming. Lawmaking is a waiting game. Individuals elected to Congress sometimes spend their entire tenure trying to enact a single piece of legislation — and failing. It is not uncommon for bills that do become law to have done so only on the fourth, fifth, or sixth attempt. That is why bills are frequently titled, “the such-and-such Act of 2023” — because there was a such-and-such Act of 2021, 2019, 2017, etc.

Litigation is also tremendously time-consuming. Lawyers often see the NLRB still adjudicating unfair labor practice determinations by the time the worker in question has found a new workplace. It is not uncommon for complex civil cases to take two to three years just at the trial court level, not including appeals, which can stretch the life of a case to close to a decade.

Labor laws can offer meaningful protection to workers and organizers

Notwithstanding all of the above, the law can be an effective shield for workers and organizers. Knowledge of what the law permits and prohibits for employers, unions, and workers can also be an armor all its own.

So much compliance with the law is voluntary. Think about things like traffic laws or paying taxes: we comply with the law in part because it’s the law. It’s something we’ve agreed to abide by as members of our community, and it’s an expectation of other members of the community who we don’t want to disappoint. While we may also be motivated by the risk that the law might be actively enforced against us, often just avoiding having to engage in that enforcement process is enough to balance out any potential inconvenience of complying with the law.

Know the laws in advance

What many don’t realize is that this same calculus happens in courtrooms and boardrooms across the country in much more complicated circumstances than driving the speed limit or filing an income tax return. Much of the work of lawyers is trying to enforce voluntary compliance by persuading the other side of one’s view of the law and trying to avoid the expensive and time-consuming hassle of litigation. Workers and organizers can do this, too.

Knowing what the law permits you to do and being confident in explaining it to your employer or anyone else who asks is a way of using the law as a shield to protect you from intimidation and allow you to go about your organizing. You don’t have to file an unfair labor practice or hire a lawyer or do any of the other expensive and time-consuming tasks that come with using the law affirmatively when you know that the law has your back regardless.

Labor law is your best defense

And remember that the law is expensive and time-consuming for employers to enforce, too. They are often as reticent to pay their lawyers as they are their workers. A worker who knows their rights and knows how the law protects them can shift the burden of enforcing the law onto their employer, who may decide that the fight is not worth it.

Of course, some employers would rather pay millions to lawyers to fight their workers than pay those same workers those same millions. And in that case, the shield that labor law provides is truly your best defense. For now, we have the right to concerted activity. We have the right to build a union and to bargain through that union for better working conditions. We have the right to picket and protest, and many of us have the right to strike. Working within those rights, we are protected from the kinds of legal harm employers may try to inflict.

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