Taking Back the Workers' Law: An Interview with Ellen Dannin
by Michael D. Yates
is one of the most eminent labor law scholars in the United States. A former National Labor Relations Board
(NLRB) attorney and currently professor of labor law at the Pennsylvania State University's Dickinson School of Law, Ellen is also a champion of working-class rights. Her new book, Taking Back the Workers' Law: How to Fight the Assault on Labor Rights
(Cornell University Press, 2006), combines her scholarly understanding of U.S. labor law and her commitment to rebuilding the U.S. labor movement. While many in organized labor say that U.S. labor law, the NLRB, and the courts are so hostile to workers that unions should avoid using them, Ellen argues organized labor and its allies must engage in a broad struggle to bring to fruition the democratic and pro-labor core of the labor law. At the center of her argument is a litigation strategy, pioneered by the civil rights movement, aimed at relentlessly and creatively bringing to both the NLRB's and the courts' attention the stated values and purposes of the National Labor Relations Act, compelling them by the force of the litigation and the zeal of its supporters to make rulings that effectuate these values and purposes.
Michael Yates (MY): Ellen, before we discuss your new book, perhaps you could tell MRZine readers a little about yourself. How did you come to be interested in labor law and the role law can play in people's lives?
Ellen Dannin (ED): To answer that you need to know something about my background. To me these issues are not theoretical. They matter on a personal level.
I did not grow up in a union family. I grew up very poor in an impoverished rural area of Ohio. It was not until junior high school that I even had teachers with bachelor's degrees.
The first I heard about unions was as a child when farmers were dumping milk to protest milk prices. My grandfather was a farmer and selling milk was a large part of his income, so these issues mattered to us personally. Around the same time, I saw civil rights protests in the news, and I was inspired by the courage of the protesters and the justice of their cause.
When I was about ten, I got my brother and sister to march in front of our house with signs demanding more pay and less work. This was a tiny town of less than 1,000 people, and they were scandalized. My mother, though, thought it was pretty funny. She called herself a Republican, but she sympathized with the civil rights protests.
It took me a long time to get through college. I put myself through school and had to drop out for a few years when I ran out of money. During that time I decided that what I ultimately wanted to do was become a lawyer. I liked to write and I wanted to do justice. Law seemed the best way to combine the two. When I finally got back to college, I studied the equal rights and women's suffrage movements around the time of the Civil War. That was when I really became interested in unions. When I went to law school I had decided I wanted to practice labor law.
MY: Until Congress passed the National Labor Relations Act in 1935, workplace relationships were governed by the common law. What exactly is the common law? Why was (and is) it so hostile to working people?
ED: All countries that were British colonies use the common law system in which law is developed by judges as they decide cases. This system is over a thousand years old. There were some statutes even hundreds of years ago, but most of the law was -- and still is -- found in court decisions. The basic common law still applies to the workplace. This includes at-will employment which permits an employer to fire a worker without just cause, master-and-servant law which means just what is says, "freedom" of contract which has been consistently used to take away any protections for workers, and property law which gives employers property rights in the job and gives workers none.
Why is the common law so hostile to working people? That's a good question. We certainly know that is. We can see that, for hundreds of years, judges have consistently overturned laws intended to allow workers to form unions or guilds or to strike or boycott for fair working conditions. In cases where judges have not overturned these laws, they have interpreted them into meaninglessness. This is still the case today. There is no US workplace law that judges have not gutted through interpretation.
My view is that judges do this for a number of reasons. One is that the common law tradition is quite strong. We lawyers learn common law ideas as the basis for our entire legal education. As a result, when we encounter new situations, we tend to turn to the common law for answers. In addition, many judges do not have any personal experience with the lives most people live. It is a closed book to them. But they do understand business, and they understand their own lives and interests and those of people like them. I think that while some judges may be biased against workers, most are just ignorant.
Unfortunately, with the appointments made to the federal courts of appeals in recent years we may have far more judges whose decisions are made through the lens of their limited understanding.
MY: What changed with the enactment of the NLRA? Why was this such an important, even radical, piece of legislation?
ED: First, the NLRA was enacted against a background in which the courts had repeatedly overturned progressive legislation, and Congress had reacted by passing new laws to "overrule" the courts' decisions. This meant that the NLRA was drafted with an eye to making it stand up under judicial scrutiny.
This can be seen in its policy sections which spell out in no uncertain terms what the purpose of the law is. Congress had hoped, since judges are supposed to interpret laws in a way that promotes their policies, that, if Congress was clear about its policies, judges would be unable to overturn and subvert the law.
You can see just how radical a piece of legislation it is when you read the parts of the NLRA that set out its policies. Those policies state that the purpose of the NLRA is to protect and promote worker mutual aid and protection, and the right to act collectively with any worker -- not limited to those employed by the same employer, and to strike. The purpose of these protected rights was to create equality of bargaining power and to promote the practice of collective bargaining in order to raise wages, to improve working conditions, and to establish stable terms of work within and among industries. In other words, it intended to put an end to playing workers off against one another in a bidding war to lower wages and working conditions.
Compare this to our common law tradition of master-and-servant law where the master/employer owns the job and the servant/employee may have access to the job only by the master's permission.
MY: How has the radical promise of the NLRA been subverted? How have things reached the point that, as you note in the book, AFL-CIO Vice President and former United Mine Workers president Richard Trumka, himself an attorney, can argue that the NLRA should be repealed and we should go back to the legal regime of the common law?
ED: The NLRA has been subverted in several ways. One was that in its critical early years several things happened that prevented the NLRB from developing the law along the lines Congress had spelled out.
First, as soon as it was enacted, employers began filing injunction cases to prevent its operation. Every time someone filed an NLRB charge against an employer, the employer went to court to get an injunction to keep the NLRB from acting. These tended to be dismissed, but the effect of having to spend so much time in court took away energy and attention from making the law effective.
Second, the NLRB was focused on ensuring the NLRA would be found constitutional. Everyone knew that the Supreme Court was likely to find it unconstitutional, because it had just done so with a similar law. So enormous resources went into developing records that would lead the Court to uphold the NLRA. As we now know, the law was upheld for various reasons, including changes in the Court's makeup. But while the focus was on this one critical issue, attention was taken from other important legal issues.
Third, NLRB attorneys suffer from the same limits of imagination we all do. In early cases, they made concessions as to how the law should be interpreted. As it has turned out, many of those concessions have come to undermine key parts of the statute.
Finally, I don't think the NLRB attorneys were really ready to cope with the forces that make judges judicially amend workplace laws and, as a result, destroy their effectiveness.
When I look at all of these problems, it becomes apparent that the NLRA has yet to be enforced as intended.
MY: You disagree completely with Trumka. Why?
ED: First, I cannot understand how anyone can see the common law as the workers' friend. It never has been. There is just no question that the NLRA still offers far more protections than does at-will employment, master-and-servant law, employer property rights in the job, and workers' freedom to contract away their protections. That's what the common law offers.
Second, I see no reason to declare unilateral withdrawal and cede territory that should be the workers' territory. I think we need to fight where the battle lines are now, not withdraw to ever smaller and weaker "rights." I saw that happen recently when the Brown University case on graduate students' rights was handed down by the NLRB. Everyone acted as if it meant that no graduate students could organize unions, and by expanding that one case, they made that the reality. In fact, the NLRB has no power to rule on graduate student rights or any worker rights except as to those in the single case that is before them. Unfortunately, many union supporters gave that one case the power that the NLRB could not. This is not the only case where this has happened. We have to stop ceding territory.
Third, my view is that you get nowhere by thinking small and by being defeatist. To get rights, you need to claim them. A good example is Kyle MacDonald who spent a year making trades starting with a red paper clip and ending with a house (see <oneredpaperclip.blogspot.com/>). He was helped by getting publicity for his cause. The publicity created allies who helped him get what he wanted. I am certain that at the start and along the way he had people who told him he was crazy and it could not happen. They were thinking small and realistically. He was scheming to make the most of his opportunities.
Unions and their allies need to draw a lesson from this story.
Most NLRA critics will tell you that the law was passed to promote interstate commerce and therefore it is no good. They are correct that the NLRA does include promoting interstate commerce as one of its policies. But that is only one of its policies. It is not the whole policy. Yet NLRA critics talk as if promoting collective bargaining, equality of bargaining power, and all the other NLRA rights and policies should be tossed away because the word commerce is used.
And maybe it would have been better had it been grounded in the Thirteenth Amendment or the First Amendment. But that is not what happened.
So the choice we now have is whether we throw away the law we do have on the hope that someday there will be a good Congress and a good President and we will get the perfect law, whatever that law is.
I come from poverty, and the way I see it, you do not throw out anything that has some use. It is easy to dismiss the NLRB and NLRA for not being perfect, but that ignores the fact that it still provides remedies for workers fired for union activities. Sure, it may only be a few thousand dollars, but, for the average worker in this country, that is real money.
There is no question in my mind that this law can become what its drafters meant for it to be -- the Workers' Law -- if we want it to be and if we are willing to put as much work into this project as in attacking the NLRA.
MY: Can you tell us, without of course going into the detail you do in the book, the basics of your strategy for "taking back the Workers' Law"?
ED: Probably the best way to summarize it is to say that I constructed this strategy by borrowing from the NAACP Legal Defense Fund strategies developed in the late 1920s to overturn the legalized racial apartheid that was then the law of this country, a law fixed in statute and in decisions by the US Supreme Court. I told you earlier that as a child I was impressed by the Civil Rights movement. I read Richard Kluger's Simple Justice -- the story of the path to Brown v. Board of Education -- just after I finished law school, and that made a huge impression on me.
The NAACP LDF lawyers were brave and visionary individuals. They created a multi-decade strategy of education, targeted litigation, and activism directed to changing this country's dominant values and to remake the legal and social landscape of this country.
They have not yet achieved full success, but their story is more one of success than one of failure. The NAACP experience teaches us that it is possible to overturn unjust judicial decisions, even those by the Supreme Court. And given the forces of law and power arrayed against them, the lesson of the civil rights movement is the power of the weak -- when they are organized and strategic.
Taking Back the Workers' Law advocates creating both a campaign to change this country's dominant values and a targeted litigation strategy. The values campaign is intended to replace the current values of greed and selfishness with the NLRA's values of solidarity, equality, industrial and social democracy, social and economic justice, fair wages and working conditions, and industrial and social peace. Just as with the civil rights movement, this is a battle that must be fought on many fronts and for which we must make a long-term commitment. If we have the courage and dedication to do this, we can at last make the NLRA's rights a reality.
I recognize that I haven't explained the details of the strategy here, but that is because to do them justice I had to explain them at book length.
MY: It seems to be that two groups will have to come on board to accomplish this -- labor leaders and the larger radical and progressive community. How can we get them on board? Labor leaders will surely be skeptical, given their antipathy to the NLRB and the courts. And at least some radicals and progressives will say that a larger social movement must be built before such a litigations strategy could work.
ED: I don't agree. While it would be nice if labor leaders and the progressive community would enlist in and support this fight, their skepticism and opposition to the NLRB may not allow them to. That would be unfortunate, of course.
I think this fight will happen to some degree whatever these groups decide. As I have traveled the country giving talks about the ideas in my book, I have found that union audiences are overwhelmingly positive about them. One union organizer told me that he feels that labor has been wandering in the wilderness for over twenty years, and these ideas were the first thing that made sense and gave him hope. Others have said the same thing.
In addition, one of the NLRB's regions has held a training session to discuss the strategy. This tells me that the people who work for the NLRB are hungry for making the law more effective.
There is a hunger out there and a sense that this strategy makes sense. I think that many people will start to try some of the ideas on an individual basis. But to be truly successful there must be a coordinated long-term strategy. That cannot be done by individuals acting alone.
My view is that the time for debating "the one best way" to achieve success has to be over and that it has always been a distraction for meaningful action.
We must view ourselves as engaged in the equivalent of World War II. Success will depend on waging this fight on land, sea, and air and engaging the enemy on many battle fields. And just as generals sent troops into battle knowing there would be losses, we must recognize that there will be setbacks and victory will be slow in coming. But just because there will be losses does not mean we can avoid engaging in this struggle.
If labor and radicals are unwilling to engage in this campaign, if they remain willing to cede terrain, the campaign will pass them by.
MY: What steps should be taken right now to begin to implement your proposals? How do you assess the likelihood of these things being done?
ED: Well, first people should read the book and read it with an open mind. People need to be creative and excited about mining the law for opportunities. We need to take the red paper clips we have and see how we can parlay them into a house.
Second, there must be input by many different people into constructing and advancing the strategy. Some of the ideas can be implemented on an individual basis, but for real change we must have thoughtful strategies and the resources to implement them.
Will these things happen? I am optimistic that they will. I am optimistic that there are people who will feel the same way as one person who read the book. He told me that reading the book had changed how he saw the world, that it had been a paradigm shift for him.
MY: Any final thoughts?
ED: I am going to include here one idea for your readers of a strategy they can consider right now. Others are mapped out in the book.
While judges have undermined the NLRA, they have not been the only source of problems. The NLRB has tended to try NLRA cases in a lackluster way. Attorneys cut corners -- often because they are short on resources but also because of a failure of imagination. In addition, the NLRA and its amendments have been the target of opposition from those who seem to want to make it fail and would rather look flaws and failures than see the NLRA as an exploitable resource in labor's arsenal.
Finally, not to be too hard on judges, the NLRB, and NLRA critics, we all would benefit from taking the time to examine our assumptions and what we "know" to be true. Here is an example of just such an assumption.
If I were to ask what § 8(c) is, most labor lawyers would say that it is the employer's free speech right. Some would add that § 8(c) it just more evidence that the NLRA is anti-union. These are the responses I have uniformly gotten.
In fact, § 8(c) says nothing about employers nor about rights.
What § 8(c) does say is : the "expressing of any views, argument, or opinion, . . . if such expression contains no threat of reprisal or force or promise of benefit" is not a violation nor evidence of a violation. Whatever congress intended, § 8(c) was drafted with language that gave employers no more rights than it gave employees or unions. It was only through the process of applying the law that the courts and others completed the work of those who wanted § 8(c) to give employers expansive rights to make anti-union speeches.
In other words, § 8(c) is now the employer free speech right only because everyone has stopped reading the statute and come to accept this label. We can change that. There is no reason why unions and employees can not argue for rights that parallel the speech rights of employers. In fact, it would be an interesting project to take the case law developed around 8(c) and employers and extend those protections to unions and employees. There is no such union or employee right now only because no one has tried to do this, but there could be.
One important lesson here is that, rather than assuming what the NLRA says, or relying on our memories, or assuming the worst and the least, we need to pore over every word of the NLRA, with fresh eyes, looking for opportunities. That must be a collective effort.
MY: Thanks, Ellen. And good luck with the book.
Michael D. Yates is associate editor of Monthly Review. He was for many years professor of economics at the University of Pittsburgh at Johnstown. He is author of Longer Hours, Fewer Jobs: Employment and Unemployment in the United States (1994), Why Unions Matter (1998), and Naming the System: Inequality and Work in the Global System (2004), all published by Monthly Review Press.