Legal scholar: Unions must adapt to survive

For unions to thrive, labor rights must be reframed as assembly rights, Crain writes

This week, Wisconsin became America’s 25th “Right to Work” state. With similar legislation under consideration in Missouri, Illinois and Kentucky, a majority of states may soon bar employees and unions from negotiating agreements that require non-members to contribute to the costs of representing them.


How ominous are these signals for labor unions in America?

For unions to survive and thrive, at least two significant changes are necessary, argues Marion Crain, JD, vice provost and the Wiley B. Rutledge Professor of Law at Washington University in St. Louis.

Crain, with co-author Kenneth Matheny, JD, outlines her views in a recent paper, “Beyond Unions, Notwithstanding Labor Law,” published in the University of California-Irvine Law Review.

“In this paper, we offer a preliminary sketch of how
reframing labor rights as assembly rights might expand legal protections
for labor unions and other worker advocacy efforts, and shore up
democracy in the process,” Crain said.

First, unions must expand their support for, and build stronger coalitions with, actors such as workers’ centers, community and occupational groups, and identity caucuses.

Class action plaintiffs’ firms, government agencies, and attorneys general dedicated to enforcing workplace rights protected by employment law and employment discrimination statutes also can be important allies in targeting under-represented workforces.

These new groups offer the best chance for unions to move into new occupational sectors and counter the loss of membership strength in their historical manufacturing base, wrote Crain, an expert on labor and employment law.

Second, more robust constitutional protection for group action is essential to create “breathing space” for these new forms of worker

“That protection can and should be founded upon the First Amendment freedom of assembly,” Crain said.