Abstract
William B. Gould is an eminent professor of labor law at Stanford University. He is best known for his service to a variety of public organizations, including a term as chair of the National Labor Relations Board, (NLRB), which regulates union-management relations in the private sector. The present book is an overview of US labor law as it affects corporate employees, some of which can be found in the author's well-regarded book, A Primer on American Labor Law (2019). What's new here are two stand-alone chapters, one on the gig economy and the other on college athletics. A few recent developments have been added.
A lengthy and somewhat meandering overview is followed by six substantive chapters. Chapter 3 discusses “American Exceptionalism.” Its point, I think, is that race, specifically the experiences of Black Americans, is vital for an understanding of the US labor movement, past and future. Chapter 4 provides a brief historical introduction to labor law. It's notable for its concision, which comes at the price of failing to cite almost no historical scholarship of the past forty years.
Chapter 5, on the modern labor framework, is a meaty discussion of the industrial relations system within unionized firms. Its features include collective bargaining contracts that run for three years, occasionally more, during which time the union foreswears strikes. To make this possible, the system includes grievance arbitration and intracontractual linkages between wages and prices. The NLRB, created in 1935, adjudicates the system, including organizing, but lacks enforcement power. The book takes to task critics who question the system's virtues, such as the fact that management can refuse to bargain about a wide range of issues, and the heavy reliance on grievance arbitration as the method for resolving intracontractual disputes. The chapter ends with a brief examination of walkouts over safety during the Covid crisis, when some union members had to choose between illegal work stoppages to protest the viral threat or possible loss of their jobs to replacement workers.
Chapters 6 and 7, on the gig economy and college athletics, are more tightly focused than the rest of the book. It's notable that they are the only chapters with summary conclusions. As in other countries, the gig economy story involves the misclassification of workers as independent contractors, as analyzed in David Weil's landmark study, The Fissured Workplace, which isn’t cited. The analysis zooms in on a single aspect of the gig economy, ride-sharing, and more than half the chapter is devoted to developments in California. It's a fascinating case study that ends with the passage of a proposition, proposed by the companies, holding that drivers are independent contractors. (California, unlike most states, permits a proposition to go on the ballot if it receives pre-ballot signatures from at least 4% of voters. Gathering signatures statewide is expensive.) The proposition currently is on appeal to California's highest court. Uber and Lyft, primarily, spent over $200 million USD to achieve their victory, more than ten times the amount the labor movement could muster. It's odd that Gould, who has a wealth of experience interacting with employers, provides scant information on their nationwide resistance to unions and none on their anti-union political mobilization, which has been relentless. Half the story is missing.
Chapter 7, on college athletics, will be of interest to readers outside the US who are unfamiliar with the scandalous mistreatment of student-athletes. University athletics are big business, with revenues exceeding $20 billion USD. Players in the highest-grossing sports—basketball and football—go on to become professional athletes, sometimes before graduation. The players, predominantly African American, do not share in the bounty. Among the legal issues discussed are paying minimum wages to, and collective bargaining by, student-athletes, as well as antitrust challenges to national athletic associations.
The book ends with a chapter on how labor law might be changed to make it less of a deterrent to organizing. Some unions have foresworn the NLRB's organizing procedure because of its perceived weakness in dealing with unlawful employer resistance. When organizing disputes end up in the courts, their resolution can take a very long time, sapping the union's momentum. Comprehensive legal reform has been the labor movement's holy grail since the 1960s. Its current incarnation is the Protecting the Right to Organize (PRO) Act, which was passed by the House of Representatives in 2021 but currently, languishes. The book recommends a number of legal tweaks related to organizing as well as collective bargaining and the administration of labor-law machinery, some drawn from the PRO Act. Suggestions on how these reforms can be achieved are not offered.
The book's omission of the public sector is unfortunate given that roughly half of US union members work for government, although they are covered by their own labor laws. Recently unions have organized large numbers of new members in public health facilities and among university teaching assistants. Silence about these successes adds to the book's pessimistic tone. Many of the largest unions today straddle private and public. The Auto Workers recently gained more than 36,000 members at my own public university–teaching assistants and other graduate employees. Dues collected in the public sector can be used to support private-sector organizing.
The book also has nothing to say about changing attitudes towards unions among millennials, who are increasingly pro-union. (Starbucks and Amazon are not mentioned, perhaps because the upsurge at those companies happened after the book was written.) Another omission is mention of how women and immigrants figure in the contemporary labor movement. But consideration of these groups is crucial to speculation on labor's prospects.
An argument that recurs throughout the book is that labor law reform is not the primary solution to the steady disappearance of unions from America's private sector. Rather, law is subordinate to labor's failures to develop new organizing strategies and to provide sufficient resources to realize them. Unions, says the book, are “lethargic.” Dues are too low. Organizing is “frequently” led by union officials who have been denied promotions, not by young activists. No data are provided to support these assertions. In general, the book is a half-step removed from current developments within individual unions. However, one could also argue that in the US, especially, labor law has primacy. Unions aren’t delusional in pressing for labor law reform for decades.
The book's criticisms of labor are overstated. Over nearly thirty years, there's been a multitude of research reporting on innovative mobilization tactics and other aspects of union renewal. Whatever its shortcomings, the US labor movement can’t be faulted for not trying. And sometimes the results take years to show effect, as with the Justice for Janitors campaign. As for labor's alleged failure to raise dues and organizing expenditures, the book again offers no evidence to support its claims. The little I could find indicates that dues have risen; there are no recent studies of union organizing expenditures per member.
Meanwhile, other labor-law scholars have offered new strategies for collective representation that go beyond the NLRB's legal strictures. One is sectoral wage determination, which some parts of the US labor movement have embraced. The book heaps scorn on sectoral bargaining as an impracticable European import. But California recently enacted a law that empowers a wage board to set working standards in the state's fast-food industry, which employs 550,000 workers. It's not mentioned. The law was stimulated by the Fight for $15 movement, which is mentioned but drubbed for achieving nothing. Fight for $15 also hastened minimum-wage increases for fast food workers via state and local legislation. These set a floor for union wages, hardly nothing.
One of the book's greatest weaknesses is its silence on labor's shrinkage in other parts of the world. The US situation is not exceptional. One has to look not only to domestic factors to understand labor's decline but also those that transcend a single-country analysis.