[In a post earlier this year, William Clare Roberts responded to Matthew Dimick’s recent article in Catalyst: A Journal of Theory and Strategy, available here. Dimick then responded to Roberts with his own post. In the present post, Claire Mummé intervenes in the debate, responding to Dimick and Roberts.]
Earlier this year, Matt Dimick argued in the pages of Catalyst that law, more precisely labour law, impedes the development and organization of the labour movement and working class in the United States. It is not enough to seek more or better labour rights, he argued, because rights are a big part of the problem. To strengthen trade unions and engage in working-class mobilization, workers’ organizations should push for the implementation of a legal framework based on freedoms, rather than rights. Under such a model, the state would provide neither protections or prohibitions, but instead create a protected zone in which labour and management are free to negotiate on the sole basis of their respective social and economic powers. William Clare Roberts then took up the theme on Legal Form, critiquing Dimick’s analysis of the relationship between rights and freedoms, law and the state. In this post, I offer thoughts on Dimick’s Catalyst piece, and in doing so engage with some of Roberts’ critique.
The Demobilizing Effects of the Wagner Act in Canada
Dimick is correct, I think, to conclude that it is not only the substance of the Wagner Act (the 1935 National Labour Relations Act) but also its structure that has forced the US labour movement into a relationship of dependence upon the state, and has impeded its ability to mobilize and coordinate large-scale action. This claim holds as much for the United States as it does for Canada, where labour law is based on a modified Wagner Act model.
In 1956 political economist H. A. Logan noted in the Canadian context that “[t]he powerful weapon of the strike as an aid to negotiation through militant organization was weakened in its usefulness where the approach to recognition had to be certification”.  In the 1980s Panitch and Swartz argued that
[t]he certification approach to recognition did not just weaken the apparent importance of militant organization, but directed the efforts of union leaders away from mobilizing and organizing towards the juridical arena of the labour boards. [It fostered] a legalistic practice and consciousness in which union rights appeared as privileges bestowed by the state rather than democratic freedoms won and to be defended by collective struggle. 
Thirty years later the demobilizing effects of the Wagner Act, in Canada at least, continue to weaken the labour movement. In the Canadian context, the act makes it very difficult for trade unions to build a strong base of independent economic power, such that many hold relatively little leverage in their relationship with employers. Unions therefore need the legal remedies and enforcement processes of the state to realize their rights, as they do not have the strength to do so alone.
We can see this by considering the impact of legal rights on the mobilizing work of trade unions. At a first level, reliance on an enforceable rights framework teaches workers that their interests can be protected without having to engage in the messy and difficult business of collective action. This, in turn, often makes them less willing to engage in industrial action when it is necessary to do so. At the same time, the act’s prohibition on mid-contract strikes has the effect of conditioning local unions to spend time between bargaining rounds ensuring that the collective agreement is respected by the employer, typically through a combination of negotiations and legal mechanisms. Obviously, on its own, this is very useful work. The problem is that a legal rights framework incentivizes it to occur at the expense of ongoing organizing and community-building. Between collective bargaining agreements, local unions typically transition into a servicing mode, waiting until just before the agreement’s expiration to begin marshaling collective will to action once again.
Roberts suggests that Dimick’s critique of the substitution of collective worker power with legal remedies mistakes the relationship between law, the state, and social movements. He suggests that this substitution can be a “good thing”, giving the movement some breathing room to engage in other campaigns and endeavours. While Roberts’ point might apply to national and provincial-state campaigns, that is not the level at which most mobilizing begins. For North American trade unions, organizing and mobilizing is usually most effective when it begins at the local level and builds upwards. But having lived through decades of neoliberal austerity, job loss, and precarity, workers often do not start from a place of class identity or commitment to solidarity. When trade unions work to help workers see their collective strength, union staff and workers are practising a set of skills and developing a sense of collective identity. When trade unions do not engage in this process on an ongoing basis, their members may be less willing or unable to do so when it is needed. The issue is not whether legal rights create a zero-sum game with the state. The issue is that it makes mobilization the exception, not the rule. As Roberts himself points out, “the power of the working class, like a muscle, grows and develops through exercise”. In the context of North American labour law, the reliance on legal rights slacks that muscle, and undermines its exercise.
Because the Wagner Act model provided some gains for the working class through the mid-twentieth century, the Canadian labour movement has focused its energies since that time on maintaining and improving the rights it contains. The result, as Judy Fudge and Harry Glasbeek have argued, “has been to bolster the notion that this scheme, with the assumptions and values it embeds, is the working class’s best defence to the onslaughts mounted by Canadian capital”.  Indeed, through successive waves of privatization and deregulation, the movement has turned increasingly to law and litigation as a source of protection. But unions’ dependence on legal rights also make them particularly vulnerable to their repeal. As Otto Kahn-Freund argued in 1950s Britain, “[w]hat the State has not given the State cannot take away”. 
The “Rights = Law” and “Freedom = No Law” Equation
To correct this weakness Dimick argues that we should abolish the current rights-based statutory framework and replace it with a freedoms-based structure. It is here that Roberts offers one of his central critiques. He argues that Dimick equates rights with law and freedoms with “no law” in a way that confuses the Hohfeldian distinction between rights and freedoms, and that also misses some key features of law’s relationship to the state.
But for the rest of my comments, I am going to move away from the debate over the Hohfeldian framework and its conceptual shorthands. While there is much that I find useful in Hohfeld’s framework, as the Roberts-Dimick debate suggests, the rights/freedoms distinction can also distract from the project it is used to analyze. So let us focus on what role law can and should play in enabling the labour movement to mobilize workers and develop their collective identity and power.
Dimick and I are in agreement that in North America, the most useful legal system is one in which the law does not dictate the manner and content of the immediate interactions between parties. There would therefore be no laws that specify the process of organizing a union, of gaining the employer’s agreement to bargain with that union, of enforcing the terms of an agreement, of strikes and other industrial actions. The employer would have no obligation in law to recognize or bargain with a trade union. If collective bargaining were to occur, it would do so because the union represented workers of a number great enough that their collective withdrawal of labour would cause significant economic harm to the employer or industry. In other words, the social and economic power of the parties would determine when, why, and how employers and trade unions would agree to bargain. This is often referred to as a “voluntarist” system.
However, such a system would not be free from law. It is here that Dimick’s “rights = law and freedom = no law” equation hides some necessary nuance. It is important to note that in most voluntarist systems, there is law that creates, supports, and incentivizes participation in labour-management collective action.  The British system of collective laissez-faire is instructive here. Writing in the 1950s, Otto Kahn-Freund offered a description and theoretical justification for the existing system of labour law in the United Kingdom, which he termed “collective laissez-faire”. Kahn-Freund explained it as involving “the retreat of the law from industrial relations and of industrial relations from the law”.  Over the years, however, others have argued that Kahn-Freund’s description of collective laissez-faire underplayed the role of the state in supporting it through auxiliary legislation , and ignored the impact of other legal regimes (e.g. property, contract, tax, and welfare law) that organize the terrain on which the parties will interact in their semi-autonomous zones.  In other words, the voluntarism of collective laissez-faire was not one free from law, even if it was free from detailed direction from the state on the nature of the labour-management interaction.
Dimick would, I think, agree with the above analysis.  I raise it because the role of enabling and supporting legislation should be factored into any future design of industrial regulation, as should the legal rules operating in its background. But highlighting the role of law in creating, supporting, framing, and conditioning voluntarist systems also engages with Dimick’s analysis of the general problem of law as a system of social regulation. It suggests that the labour movement’s target should not be law tout court, because a system of voluntarist labour-management system would not operate in a legal vacuum.  Rather, what is problematic are rights-based legal frameworks that trade unions can only enforce through the state’s legal forums, because those rights have it made it impossible for trade unions to enforce them themselves.
How to Build a Voluntarist System
At the end of the day, Dimick’s suggestion is not especially radical. Dimick proposes a system of industrial self-government, one that takes law out of direct regulation of union membership, union recognition, collective bargaining, and industrial action, replacing it with a space for self-regulation through economic and social power. Dimick demonstrates that such a system already exists, in varying forms, in a number of countries around the world.  One thing that bears further consideration, however, is how we would get from here to there. Dimick does not spend too much time on this, other than noting that civil disobedience will likely be required. So let me flesh this out a little, as it is a question of central importance if the trade union movement is to go down this road seriously.
We can all agree that it would not be difficult to convince many employers in the United States or Canada to support the elimination of most labour rights. They would be quite happy to engage in an economic power struggle free from specific labour law obligations. But if that were to occur tomorrow, the consequences to the trade union movement would be dire. The likely result would be a massive withdrawal of union recognition by employers, a significant drop in membership rates and funding for union operations, as well as a stall in implementation of existing bargaining agreements. This is so because, as Dimick demonstrates, most trade unions would be entering the voluntarist system with very little independent economic power. For a such a model to work, trade unions must enter that system with some modicum of strength. In the immediate term, therefore, trade unions need to start organizing around and outside the statute, so as to build economic power despite it. To do this they need to build relationships with one another (rather than, as in Canada, fighting amongst themselves). They need to learn from and support all of the alt-labour organizing occurring on the ground, and also provide solidaristic support to other social justice groups and invite it in return. They need to organize large-scale wildcat strikes and start building up their coffers for the fines that will ensue.  In short, they need to think creatively beyond the strictures of act and so as to be able to regain some measure bargaining leverage.
One can already see this underway. Over the last years in the United States we have seen unions working with workers to improve working conditions outside of direct organizing drives ; we have seen massive waves of wildcat teachers’ strikes, who include in their demands benefits for other workers and their communities ; we have seen impressive large-scale strikes in very precarious workplaces ; and we are seeing the organizing of gig economy workers.  The Canadian labour movement has been marked by a little more complacency, but in the last two years we are beginning to see the re-emergence of wildcat strikes , there is currently an organizing drive underway for Foodora drivers in Toronto  and at various Amazon warehouses across the country ; the “Fight for $15 and Fairness” campaign built a strong broad-based movement , et cetera. This is the type of organizing we need to see, this and more.
To conclude, Dimick’s ultimate proposal for a voluntaristic system of labour relations is persuasive. To build such a system, we need to organize against rights-based law, which dissipates the capacity for independent trade union action and the growth of collective power, incentivizes and restricts worker mobilization, and creates a system of dependence upon the state. We need a system through which the trade union movement can build independent economic strength. The type of trade union creativity, organizing, and mobilization that will be required to get there is exactly the kind of action that will also, in the meantime, allow the working class to flex its muscles and begin to build a broad level of support in struggle.
 H. A. Logan, State Intervention and Assistance in Collective Bargaining (Toronto: University of Toronto Press, 1956), 76.
 Leo Panitch and Donald Swartz, “Towards Permanent Exceptionalism: Coercion and Consent in Canadian Industrial Relations”, 13 (1984) Labour/Le Travail 133, at 145 (emphasis added).
 Judy Fudge and Harry Glasbeek, “The Legacy of PC 1003”, 3 (1994–95) Canadian Labour & Employment Law Journal 357, at 358.
 Otto Kahn-Freund, “Labour law”, in Morris Ginsburg (ed.), Law and Opinion in England in the Twentieth Century (London: Stevens & Sons, 1959), 244.
 Keith Ewing, “The State and Industrial Relations: ‘Collective laissez-faire’ Revisited”, 5 (1998) Historical Studies in Industrial Relations 1.
 Otto Kahn-Freund, “Labour Law”, in Otto Kahn-Freund, Selected Writings (London: Stevens & Sons, 1979), 9. See also this piece for a description of the industrial, union, economic, and political forces that shaped the emergence of this system.
 Law also impacts the self-regulatory system of the Scandinavian states, where, as Dimick explains, the law recognizes and enforces the basic agreements. And, of course, the Haleian point about background rules would apply there as well.
 Hugh Collins, “Against Absentionism in Labour Law”, in John Eekelaar and John Bell (eds), Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 1987), 70.
 Dimick might disagree with terming his preferred system “voluntarist”, however. See note 11 below.
 Whether it could so operate is unclear. There has been an ongoing debate in the UK about whether trade unions could have built the strength they held in the mid-twentieth century without the legislation and state policies that incentivized and supported collective bargaining. See Alan Bogg, The Democratic Aspects of Trade Union Regulation (London: Bloomsbury, 2009), ch. 1, for an overview of debates regarding the operation and theorizing of collective laissez-faire.
 I would include twentieth-century Britain as a self-regulated system, even though it never reached the level of entrenchment as the Scandinavian countries.
 Clearly, the financial consequences of operating outside the act may be significant, and not affordable for some unions. But creative solutions may be available to address some of this problem.
 Although not without its problems; see, for instance, the UFCW’s “Our Walmart” campaign with Walmart employees.
 Andrew Van Dam, “Teachers’ Strikes Made 2018 the Biggest Year For Worker Protest in a Generation”, The Washington Post (14 February 2019), available at https://www.washingtonpost.com/us-policy/2019/02/14/with-teachers-lead-more-workers-went-strike-than-any-year-since/; Jane McAlevy, “Chicago Teachers Are Making History. Again.”, The Nation (15 October 2019), available at https://www.thenation.com/article/union-strike-chicago-teachers/.
 For example, the recent Stop and Shop strike. See Griffin Buell, “Strike Empties the Shelves at Stop and Shop”, Labor Notes (28 May 2019); available at https://www.labornotes.org/2019/05/strike-empties-shelves-stop-shop.
 See Veena Dubal, “Gig Workers Organizing for Solidarity Unions”, Law and Political Economy Blog (19 June 2019); available at https://www.labornotes.org/2019/05/strike-empties-shelves-stop-shop.
 Unifor engaged in at least two wildcat strategies in 2018 and 2019, one in regard to the Oshawa Chrysler plant shutdown and one in Windsor in regard to layoffs at Nemak. In Unifor’s campaign at Nemak, however, they have framed the issue as lost jobs to Mexico, which unfortunately pits workers against one another.
 Foodsters United, affiliated with the Canadian Union of Postal Workers, have a certification drive currently underway in Toronto; see https://www.foodstersunited.ca/couriers.html#demands.
 The United Food and Commercial Workers currently has an application before the Ontario Labour Relations Board to represent employees of Amazon Fulfillment Centres and their related employers. It is mired in litigation. See UFCW Canada, Local 175 v. Amazon Canada Fulfillment Services, 2018 CanLII 71068 (ON LRB).
 See Fiona Jeffries, “Getting to $15 and Fairness”, The Monitor, Centre for Policy Alternatives (1 July 2018); available at https://www.policyalternatives.ca/publications/monitor/getting-15-and-fairness. See also “$15 and Fairness Manitoba”; available at www.manitobafor15.ca/.
Claire Mummé is Assistant Professor of Law at the University of Windsor.