Class Conflicts of Law II: Solidarity, Entrepreneurship, and the Deep Agenda of the Obama NLRB

Abstract

In the words of NLRB Chairman Wilma Liebman, American labor law has been turned “inside out.” Business values - imported from outside the NLRA - have gravitated to the core of labor jurisprudence, while labor values - originally enshrined at the heart of the statute - have floated to the periphery. While business values are grounded on a deeply rooted core theory and narrative of entrepreneurship, exemplified in the doctrine of the “core of entrepreneurial control,” there is no labor equivalent. When it comes time to balance employer common-law rights against worker statutory rights, the employer’s robust and coherent entrepreneurial interest is counterbalanced by a scattering of disconnected interests many of which are neutral in valence like employee “choice” or “stability in collective bargaining.” I propose that labor’s counterpart to business entrepreneurship is labor solidarity. Just as capital - and control over capital - is central to business entrepreneurship, so is solidarity - and the generation and enforcement of solidaristic norms - central to the statutorily protected activities of “self-organization” and “concerted activity for mutual aid or protection.” If our labor law is to be turned rightside-out, we will need to develop (or, more accurately, to recover and update) a positive juristic understanding of solidarity, including a core theory and narrative of the generation of solidaristic norms. At the theoretical level, this project entails rejecting the prevalent, economic model of rational choice - which is conceptually powerless to comprehend the statutorily protected activities of self-organization and mutual aid - and adopting the cognitive model of constitutive choice. Elements of such an approach can be found in scattered decisions of the NLRB and courts, but they remain to be assembled and shaped into a coherent theory and narrative. If the Obama NLRB were to build on these decisions, bringing solidarity back to the center of the labor law, the official understanding of labor activity would change dramatically, and along with it a number of important legal doctrines. Examples include reinstating protection for worker norm implementation in the workplace, reinstating Weingarten rights in the non-union workplace, requiring employers to bargain with non-majority unions for their members only, and developing a new “core of solidaristic control” parallel to the employers’ “core of entrepreneurial control.”

Keywords: Labor, Rational Choice, Constitutive Choice

JEL Classification: J53