This Article reinterprets the period from 1935 to 1973 as a “long exception” to the sustained pattern of legal hostility to labor organizing in the United States. While the National Labor Relations Act (Wagner Act) and the broader New Deal were once regarded as secure solutions to the “labor question” in America, in retrospect they only offered a partial, temporary, and extraordinary respite from state and corporate opposition to the collective interests of working people. The decades from the thirties through the seventies witnessed the rise and fall of union density as well as the fall and rise of inequality that stands out in contrast to the rest of American history since the industrial revolution. However, because of the extraordinary circumstances of that era (which are connected to important sociopolitical variables including the economic emergency, immigration, the state, unions, individualism, and cultural politics), the New Deal serves as a poor historical metaphor for those interested in labor’s revival. The circumstances that created the New Deal are unlikely to be repeated, thus the future of labor organizing and the law will look more like the deep and difficult past of American history prior to the 1930s than like the “modern” age of organizing and collective bargaining.

Research Article

February 14, 2016

The Right Not to Have Rights: Posted Worker Acquiescence and the European Union Labor Rights Framework

Nathan Lillie

Page range: 39-62

Abstract

The emergence of the European Union citizenship agenda has mainly taken place along the evolution of mobility rights, with the goal of creating a pan-European labor market. Mobility undermines the nationally embedded notion of industrial citizenship. Industrial citizenship protects workers’ rights and secures their participation in national political systems. The Europeanization of labor markets severs the relationship between state, territory and citizen on which industrial citizenship has been built, undermining worker collectivism and access to representation. This is legitimated in terms of building market-citizenship, i.e., enabling mobile workers as market actors. However, the way mobility is regulated in the EU has the purpose and effect of weakening collective labor institutions, which also undermines workers’ ability to act as autonomous market actors. The same factors which undermine the industrial citizenship of mobile workers also prevent them from being effective free market agents: i.e., they can neither negotiate nor enforce individual contracts effectively in the face of systematic employer fraud and wage theft. The “Arendtian dilemma” of the “right to have rights” — a dilemma that derives from the claim that rights depend on the existence of a political community, which until now is the territorially exclusive nation-state, rather than universal personhood — emerges as industrial citizenship is internationalized. By disembeddeding workers from host-country industrial relations systems, EU regulation provides the social context in which workers’ rights become alienable.

Research Article

February 14, 2016

Organizing: Should the Employer Have a Say?

Pnina Alon-Shenker, Guy Davidov

Page range: 63-100

Abstract

Israeli courts were recently faced with the question whether an employer is allowed to voice objections to unionization during an organizing drive. Since the legislation fails to provide an answer to this question, it was up to the courts to come up with a solution. The National Labor Court in Histadrut v. Pelephone held that employers have no say and must refrain from any communications whatsoever with the workers regarding the decision whether or not to join the union. The Supreme Court later affirmed this decision. This Article explores this legal question and examines whether this decision was justified, and whether it should be adopted in other countries as well. It first discusses the justifications for the conflicting freedoms in this scenario — the workers’ freedom of association and the employer’s freedom of speech — to appreciate their relative strength in the circumstances. It then examines whether it is possible to achieve a certain balance. To this end, the Article critically reviews the legal mechanisms adopted by other legal jurisdictions (the United States, Canada and the United Kingdom) in this regard, shedding light on their effectiveness and the difficulties of organizing in practice in each jurisdiction. The main argument advanced in this Article is that the solution has to be purposive — to advance the goals of labor law, specifically freedom of association — and that the purposive analysis must be contextual. A rule prohibiting the employer from voicing opinions is surely an infringement of freedom of speech, and strong reasons are needed to justify it. Whether strong enough reasons exist depends on several contextual factors. Essentially, the question is whether it is possible, given the current context, to secure real freedom of association without such a rule. By context we mean two main things: first, the real-life current experience concerning the struggles of organizing; and second, the existence of alternative legal mechanisms that might address this problem.

Research Article

February 14, 2016

Workplace Democracy and Democratic Worker Organizations: Notes on Worker Centers

Catherine L. Fisk

Page range: 101-130

Abstract

Worker organizing outside the traditional union framework in the United States has lately focused on worker centers, which provide the benefits of collective action and participatory workplace democracy without the legal obstacles faced by unions. This Article offers thoughts on legal regulation of worker organizations’ internal governance to facilitate collective power with appropriate protection for the rights of individuals within the collective. Federal law extensively regulates the internal governance of unions so as to protect minorities in an organization that is an exclusive representative. It does not apply to worker centers, which disclaim the desire to represent workers for bargaining. Worker centers are regulated only lightly, under state law of nonprofit organizations. But if they become powerful, they will be large and will need to be managed by a leadership that may or may not remain accountable to the membership and respectful of minority rights. This Article offers a reading of the literature on union democracy from the 1950s as notes toward thinking about governance of worker organizations that are not labor unions. Democracy was the political moment when the demos recognized that the power of the polis was their power, not an illegal seizure of something that belonged to the rich or well born. Sheldon Wolin, “Democracy: Electoral and Athenian” (1993)

Research Article

February 14, 2016

Organizing Workers in Argentina, Brazil, Chile and Mexico: The Authoritarian-Corporatist Legacy and Old Institutional Designs in a New Context

Graciela Bensusán

Page range: 131-161

Abstract

In what way do the corporatist and authoritarian legacies that modelled some Latin American labor institutions influence the opportunities for and restrictions on organizing workers in a new context? To what extent did institutional designs, together with other economic and political factors, influence the characteristics that currently distinguish the union organizations in the countries of the region? Taking into consideration the existence of a broader debate about the consequences of globalization and political democratization for unions, the contribution of historical institutionalism and previous research, in this Article I compare the institutional and organizational dynamics of unions in four countries with authoritarian legacies and corporatist traditions (Argentina, Brazil, Chile and Mexico). The Article argues that in spite of these shared traditions, the differences in the institutional designs — which have scarcely been considered in the specialized literature — have historically imposed distinctive features on the associational power of workers and unions. These features not only persist to the present day, but also translate into dissimilar trajectories of the labor movement and opportunities for organizing workers in the last decade.

Research Article

February 14, 2016

Organizing Workers in “Hybrid Systems”: Comparing Trade Union Strategies in Four Countries — Austria, Germany, Israel and the Netherlands

Guy Mundlak

Page range: 163-200

Abstract

The freedom and right to associate carries distinct meanings in different systems of industrial relations, giving rise to distinct institutions. Where bargaining is based on grassroots association, rates of membership in trade unions and coverage of collective agreements are low. Where bargaining is actively endorsed by the state, high rates of membership are matched by considerable coverage. Over the last two decades, some countries, four of which are studied here, have gone through a process that I designate as hybridization, in which a gap emerges between a rapidly declining rate of membership and persistent relatively high level of coverage. The Article accounts for the growing gap between coverage and membership and its implications. On the basis of extensive interviews with trade union officials, organizers, works councils’ members, Labor Chamber representatives, academics and journalists in the four countries, the Article further seeks to document and explain new organizing practices at two levels. First, why do unions seek to organize, despite persistent power accorded to collective agreements by the state? Second, which strategies are used for current recruitment and organizing practices? The discussion highlights the ongoing tension that is folded in the meeting of institutions that are aimed at sustaining the centralized system of bargaining and social partnership, with the dynamics that are characteristic of raising membership levels. Some best practices that seek to address this tension are identified, but are also characterized as difficult to emulate and extend as a general practice

Research Article

February 14, 2016

Trade Union Ambivalence Toward Enforcement of Employment Standards as an Organizing Strategy

Ingrid Landau, John Howe

Page range: 201-227

Abstract

Trade unions in Australia have long played an important role in the enforcement of minimum employment standards. The legislative framework today continues to recognize this enforcement role, but in a way that is more individualistic and legalistic than in the past. At the same time that the law has evolved to emphasize the representation and servicing role of trade unions, the Australian union movement has sought to revitalize and grow through the adoption of an “organizing model” of unionism that emphasizes workplace-level activism. This Article explores how these seemingly opposing trends have manifested themselves in the enforcement-related activities of five trade unions. Considerable diversity was found among the unions in relation to the extent to which and how the unions performed enforcement-related activities. However, all five unions spent significant time and resources on monitoring and enforcing employer compliance with minimum standards and saw this work as a core part of what they do. The case studies suggest, however, that the way in which this work is undertaken within unions and by whom has changed significantly in recent decades. While there was evidence that enforcement work was used tactically by unions in certain cases, this was largely on an ad hoc basis and there was little indication that the enforcement work was integrated into broader organizing objectives and strategies. Overall, the unions were ambivalent, if not skeptical, as to the capacity for enforcement work to grow unions through building workplace activism and collective strength.

Research Article

February 14, 2016

Unionizing Subcontracted Labor

Hila Shamir

Page range: 229-255

Abstract

Subcontracting — the practice of using intermediaries to contract workers, whether through temp agencies, manpower agencies, franchise, or other multilayered contracting — is an increasingly popular pattern of employment worldwide. Whether justified from a business perspective or not, subcontracting has dire implications for workers’ rights: it insulates the beneficiary of their labor from direct legal obligations to the workers’ wages and working conditions and drastically reduces their ability to effectively unionize. This Article explores the impact of subcontracting on unionization of subcontracted labor. It argues that labor law in most postindustrial developing economies is structured around the Fordist model of production and employment and therefore provides insufficient protections to workers whose employment arrangements deviate from that model. The Article maps the various hurdles subcontracting poses to unionization. It identifies three main challenges to the basic assumptions that animate traditional labor law: first, that a union has leverage and significant bargaining power vis-à-vis an employer; second, that the union and the employer are repeat players in negotiations, and that accordingly the labor contract is a relational contract in which both parties consider the short and the long term in their calculations; and third, that the bargaining unit represented by the union is relatively easily discernable and relatively stable. The Article argues that subcontracting disrupts all of these assumptions. Accordingly, in order to remain relevant to subcontracted workers, labor law requires adaptations. The Article sketches a preliminary list of existing and potential legal responses to subcontracting that better guarantee subcontracted workers’ rights to unionize. Its main suggestion is to move away from a bilateral towards a multilateral structure of collective agreement bargaining in subcontracting situations. Finally, the Article questions whether law can provide a once-and-for-all solution to the problems posed by subcontracting, and explores the dynamic role of law and unionizing in this context.

Research Article

February 14, 2016

The Untamed Politics of Urban Informality: “Gray Space” and Struggles for Recognition in an African City

Ilda Lindell, Christine Ampaire

Page range: 257-282

Abstract

This Article examines the ways in which market vendors in Kampala, Uganda, responded to plans to redevelop their markets through the concession of long-term leases to private investors. These plans met with massive resistance from the marketers, with significant outcomes. The Article uncovers how the marketers actively negotiated a “gray space” between legality and illegality and creatively used the law, with a view to asserting themselves as the legitimate rulers of their markets. It shows how the marketers engaged in highly diverse modalities of struggle, stretching across the legal/illegal boundary. They organized in multiple configurations which were flexible, hybrid and mutant in character, rather than being fixed in particular organizational categories. In their struggles, the marketers engaged in shifting alliances and with a disparate range of political allies. Their politics were fluid, untamed and pragmatic, but also contradictory and fractured. This flexibility and pragmatism enabled them to navigate a complex political landscape and to make instrumental use of a generally unfavorable legal environment

Research Article

February 14, 2016

Informal Workers’ Aggregation and Law

Routh Supriya

Page range: 283-320

Abstract

In India, more than ninety percent of the workforce is informal. In spite of this enormous percentage of informal workers, these workers remain invisible to law and policy circles. One of the reasons for such exclusion and invisibility is the absence of unionism involving informal workers. In order to overcome this invisibility, informal workers are increasingly organizing into associations that are different from traditional trade unions. These organizations devise their strategies and their legal statuses in view of the atypical characteristics of informal activities. In this Article, I document some of these organizations of self-employed informal workers in India – their characteristics and functions. On this basis, I contend that these organizations offer a model for collective action by informal workers. I argue that these associations are a sui generis organization of informal workers, and could become a precursor to solidarity-based collective initiatives by informal workers globally. In the backdrop to this proposition, I analyze the role of law in promoting such aggregation of informal workers in furtherance of their collective action. I argue that while organizations of informal workers in India employ the existing legal framework to the best of their advantage, the law fails to recognize some of their status as workers, thereby creating hurdles towards informal workers’ collective action. A small farmer works on her own farm. In tough times, she also works on other farms as a laborer. When the agriculture season is over, she goes to the forest to collect gum and other forest produce. Year round, she produces embroidered items either at a piece rate for a contractor or for sale to a trader who comes to her village to buy goods. Now, how should her trade be categorized? Does she belong to the agricultural sector, the factory sector, or the home-based work sector? Should she be categorized as a farmer or a farm worker? Is she self-employed or is she a piece-rate worker? Because her situation cannot be defined and contained neatly in a box, she has no work status and her right to representation in a union is unrealized. She is denied access to financial services or training to upgrade her skills. The tyranny of having to belong to a well-defined “category” has condemned her to having no “identity.” — Ela R. Bhatt E la R. B hatt , W e A re P oor but S o M any : T he S tory of S elf -E mployed W omen in I ndia 17 (2006).

Research Article

February 14, 2016

Active Industrial Citizenship of Domestic Workers: Lessons Learned from Unionizing Attempts in Israel and the United Kingdom

Einat Albin, Virginia Mantouvalou

Page range: 321-350

Abstract

In this Article we offer a new conceptualization of industrial citizenship, which is sensitive to gender and migration status. Our conceptualization builds on the theoretical distinction between active and passive citizenship and the analyses of active industrial citizenship. We suggest that active industrial citizenship should be detached from the old and influential tradition of trade unionism that is connected with the public/private divide. Our proposed conceptualization leads to attaching value to activities related to ethics of care and to the pursuit of legal status, which should be seen as forms of activism. The discussion focuses on organizing domestic workers. We argue that this new conceptualization of active industrial citizenship leads to the recognition of domestic workers as active industrial citizens, rather than passive victims of abuse. It also transforms the way we view organizational forms within the labor market, making it possible to appreciate on an equal basis membership in trade unions and participation in NGOs and other civil society organizations, thereby building cooperation as well as taking part in other aspects of public life. We ground our argument on theoretical literature as well as a qualitative study, a series of interviews with key trade union and NGO actors with expertise in organizing and supporting domestic workers in Israel and the United Kingdom.

Research Article

February 14, 2016

Organizing in the Shadows: Domestic Workers in the Netherlands

Margriet Kraamwinkel

Page range: 351-367

Abstract

In 2009, a small group of domestic workers joined FNV Bondgenoten, the largest Dutch trade union in the private sector and affiliated with the Dutch trade union confederation FNV. The group that joined consisted mainly of women immigrant workers, many of whom did not have a residence permit. FNV’s policy is that we organize workers and do not ask for passports. Still, a group like this brought to light several problems for FNV, both practical and fundamental. The Article identifies three types of problems. The first set of problems concerns the invisibility of domestic workers. Domestic workers work in private houses and are leery of talking to strangers if they don’t have residence permits. This demanded new organizing tactics from the sector, like asking women to bring a friend to a meeting and joining churches. A cash payment of membership fees system was devised, its administration done by handwriting. At the same time, the public debate on immigration toughened; immigrants without residence permits (“illegal aliens”) in particular were depicted as somewhere between a profiteer and the devil. This debate also took place within FNV. The second set of problems is defined by the traditional views in Dutch society on domestic work. The group chose to become union members, since they wanted to better their position in the labor market. Dutch law on domestic work excludes them from full protection of labor and social security law. The inclusion of domestic work in labor and social security law is contrary to cultural and historical traditions and views and therefore contentious. The third set of problems is caused by the connectedness of labor and social security law and immigration law. Domestic workers in the Netherlands work in the shadows in two ways: by not having a residence permit, and by not being protected by labor and social security law. The result of our campaign is that a group of publicly financed care workers will be better protected, but the group of domestic workers that fought for ILO Convention 189 will still be excluded from our labor and social security law and not be able to qualify for a residence permit.

About this journal

Theoretical Inquiries in Law is devoted to the application to legal thought of insights developed by diverse disciplines such as philosophy, sociology, economics, history and psychology. The range of legal issues dealt with by the journal is virtually unlimited, subject only to the journal's commitment to cross-disciplinary fertilization of ideas. We strive to provide a forum for all those interested in looking at law from more than a single theoretical perspective and who share our view that only a multi-disciplinary analysis can provide a comprehensive account of the complex interrelationships between law, society and individuals.

Theoretical Inquiries in Law appears in several databases, including Lexis, Westlaw, LegalTrac, and HeinOnline.

At present, Theoretical Inquiries in Law is ranked third for "impact factor" by the Washington and Lee most cited legal periodicals list in the "Jurisprudence and Legal Theory" category, ahead of such journals as Law and Social Inquiry, Law and Society Review, Legal Theory, Canadian Journal of Law & Jurisprudence and Oxford Journal of Legal Studies.