Oswalt, Michael M.
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Reflections on the modern labor movement tend to take a bad-news/good-news approach to the future: yes, unions are down, but a new trend suggests they are far from out. The framing is optimistic, but also right. What’s “new” has often involved innovations in unionizing, and over the past three decades organized labor has gotten creative, taken risks, and every once in a while—for the first time in a while—started winning. The new wave campaigns were variously “comprehensive,” legally canny, sometimes global, and usually movement-esque in their approach to traditionally underrepresented constituencies and sectors. Less discussed is that the trends developed counterparts: hot takes in unionization became new normals in negotiation. If exposing dirty directors weakened corporate resolve in union drives, C-suite exposés became a regular feature in contract drives. If union organizers learned that an employer’s fiercest anti-union weapons could be traded away during a campaign, contract organizers realized that a collective bargaining agreement could do the same for future campaigns. And if fighting for a union became less about money and more about morality, so did fighting for a contract. The current trend is “alt,” short for “alternative-labor,” and invoked where unions or non-profits mobilize workers for better working conditions but not necessarily collective bargaining. As its name implies, the efforts have varied origins, tactics, and aims, making the category hard to define with specificity. But if the alt-labor innovations of today signal how more mature entities—alt-, traditional, or otherwise—will push for workplace benefits tomorrow, clarifying what the present advance is, exactly, is useful foreshadowing. That definitional project is one goal of this article. Alt-labor is incredibly diverse, but through-lines exist. Its constituent groups are repeatedly marked by three non-standard relationships to law that generate exceptional conceptions of group membership, challenge organizing’s presumptive outer-bounds, and prove how even bad organizing doctrine can be harnessed for good. The major goal, though, is to argue that alt-labor isn’t foreshadowing anything because alt-bargaining is here. Over and over, the unconventional legal orientations that facilitate alt-labor’s inclusive approaches to membership, fluid conceptions of which workers or what entities are organizable, and optimistic spins on employment rights can be spotted in recent campaigns where the activists are already assembled and scrutiny instead surrounds how the group is negotiating. The innovative legal perspectives that make up alternative organizing practices, in other words, can now be found in situations where labor and management are actually passing proposals.