Work Rights, Individual Rights

...If we take these two laws as the legislative embodiment of a set of underlying social movements, we can see much in common...

...Industrial democracy" has virtually disappeared within the United States because the political and administrative structures that once sustained it are now in an SPRING • 1997 • 69 Work Rights, Individual Rights advanced state of decay...

...But if fired or denied a promotion because of gender, race, politics, and so on, there was no legal recourse...

...When unions were strong and statutory employment rights undeveloped, this system worked to enhance the attractive power of organized labor, but today, when American unionism is on the defensive, we find that unorganized workers often have much greater access to a rights-conscious employment law than do workers covered by a union contract...

...And perhaps of even greater consequence, the Supreme Court's reinterpretation of the entire scope and meaning of collective bargaining did much to undercut the potency and appeal of trade unionism itself...

...At first this legislative shift seemed to revitalize the union idea...

...and in the private sector barely one out of ten workers carries a union card...

...The revival of a mass democratic trade union movement and its return to the workplace is essential to the success of this project...

...In 1974 the Supreme Court held that the NLRB did not cover anyone who had the authority to "formulate and effectuate management policies by expressing and making operative the decisions of the employer...

...Working People & the Nation's Economy, Politics, Culture & Society (New York: Pantheon Books, 1992), p. 397...

...From a legislative point of view the decisive moment came when, during the great political opening that followed the Birmingham 68 • DISSENT Work Rights, Individual Rights demonstrations of May 1963, legislation governing fair employment practices was rolled into the 1964 civil rights law as Title VII...

...Katherine Stone has labeled this system—and the ideology it embodies—"industrial pluralism...

...Today, trade unionism in the United States represents but 15 percent of all American workers...

...All this was formalized in the Court's infamous Yeshiva decision of 1980, which ruled that faculty members at a private university were ipso facto "managers" because they operated in a collegial manner and could make effective recommendations to the administration regarding hiring, budgets, teaching load and content, and other policy matters...

...For the first time in a generation the union movement began to stir in the South and among employees in public and nonprofit institutions...

...Both of these laws were passed to resolve , fundamental social problems, not entirely dissimilar in their nature...

...Another series of judicial decisions devalued union solidarity and privileged the right of workers to resign their membership in the midst of a strike and then scab on their workmates...

...The rights-conscious ideology engendered by the new civil rights movement advanced union consciousness among AfricanAmerican workers and relegitimized the union movement among many whites, especially those whose collars were pink, white, and gray...

...Finally, a discourse of rights is incapable of grappling with the structural crisis, both economic and social, which confronts American society...

...But rather than a fulfillment of Randolph's social democratic vision, the 1963 March on Washington signals the moment when work rights underwent a fundamental shift...

...A series of decisions, almost all written by the most liberal Supreme Court justices, institutionalized collective bargaining, but only under conditions that narrowly channeled the functions trade unions could perform for their members...

...Thus the great 1963 March on Washington, again spearheaded by A. Philip Randolph, called for a federal program of job creation, a higher minimum wage, and a liberalization of the labor law...

...the union's system of shop stewards and committeemen is a weapon of democracy.' Looking back we know the many failures of this system: the Wagner Act granted workers one right, the right to organize...

...and if the laws governing occupational safety and health regulate the work environment, rather than a union contract clause, the factory air will smell just as sweet...

...In a town tightly controlled by the United States Steel Corporation, the mayor abruptly cut short a Perkins speech in the city hall when union militants sought to make their voices heard...

...Indeed, the summer of 1963 may well be taken as the moment when the discourse of American liberalism shifted decisively out of the New Deal/ laborite orbit and into a world in which the racial divide colored all politics...

...The hiring, pay, promotion, and layoff of employees are now subject to governmental review and private litigation to an extent the union movement could hardly match, even in the heyday of the Wagner Act...

...social legislation passed during this era—perhaps during the entire twentieth century—were the Wagner Act of 1935 and the Civil Rights Act of 1964...

...If a worker was fired while in the process of organizing a union, her union could appeal to the NLRB and the courts...

...Management and labor are like political parties in a representative democracy—each represents its own constitutency and, as in a legislature, engages in debate, compromise and settlement.' Thus in 1941 the United Automobile Workers published a remarkable pamphlet for its shop stewards, "How to Win for the Union," which framed the shop floor struggle between workers and their foremen in precisely such constitutional and ideological terms: With the coming of the union, the foreman finds the whole world turned upside down...

...According to David Abraham's penetrating reading of this "right to resign" doctrine, the court subverted the legal and ethical basis of collective solidarity in favor of an "abstract and atomistic conception of our society...

...see also Nelson Lichtenstein, "Great Expectations: The Promise of Industrial Jurisprudence and its Demise, 1930-1960," in Lichtenstein and Howell Harris, Industrial Democracy in America: The Ambiguous Promise (New York: Cambridge University Press, 1993), pp.113-128...

...The United States is now on the verge of a risky experiment: to become the first parliamentary democracy in modem world history without a substantial trade union movement...

...We might well call it "The Age of Social Reform," a single generation in which a powerfully intrusive state, strengthened by depression, war, cold war, and domestic social conflict, sought to transform the traditional hierarchies governing the industrial, racial, and gender order...

...The Yeshiva decision proscribed collective bargaining in virtually any work setting not characterized by simple drudgery...

...And if there were forty blacks you could count on forty votes...

...Finally, the Supreme Court severely restricted the right of a union or of its workers to take part in unofficial job actions or in wildcat strikes...

...72 • DISSENT...

...The preamble of the Wagner Act declared it the policy of the United States to "protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid and protection...

...and both of these laws generated a whole new layer of the federal bureaucracy, years of political and ideological conflict, and an enormous body of case law designed to tease out the meaning of these statutes...

...Meanwhile, capital became ever more mobile and American workplaces increasingly transitory institutions outside the control even of the legally defined managers...

...Unlike the NLRB, the FEPC worked with and through individuals, taking the complaints of specific workers, investigating their grievances, and issuing directive orders...

...It was based on a simple but powerful metaphor: that collective bargaining is industrial self-government, a "microcosmic constitutional democracy, a mini-democracy in the private sphere...

...Professional athletes challenge owners, journalists challenge editors, consumers challenge manufacturers," reported Work in America, an official U.S...

...From the early 1960s onward the most efficacious defense of American job rights would be found not as a collective initiative, as codified in the Wagner Act and advanced by the trade unions, but as an individual claim to a worker's civil rights based on one's distinctive race, gender, or other attribute...

...A bright steward should be able to do just about as well with his contract...

...and in the Boys Market decision of 1970, the high court made virtually all work stoppages illegal during the term of a contract, reviving labor injunctions of the sort that had so crippled the union movement during the nineteenth century...

...The legal-regulatory system by itself is simply not capable of enforcing the inner life of millions of workplaces...

...used the language of the New Testament to give these same egalitarian sentiments an equally transcendent meaning...

...Workplace rights encompassing the gender, sexual orientation, old age, disabilities, and parenthood of employees have put a new and expanded conception of social citizenship on the agenda...

...In the wake of the fire there were many calls for more money and personnel to put teeth into enforcement of Occupational Safety and Health Administration (OSHA) regulations...

...President Franklin Roosevelt was highly vexed, but he nevertheless issued Executive Order 8802, establishing a Fair Employment Practices Commission (FEPC), designed to guarantee that employers offered their workers equal treatment regardless of race, creed, or color...

...The steward's greatest difficulty will come on grievances which do not appear to be covered by the terms of the contract...

...Thus A. Philip Randolph, of the all-black Brotherhood of Sleeping Car Porters, who had plenty of experience in dealing with racist unions on the railroads, knew that trade unions alone were neither strong enough nor reliable enough to ensure equality of employment to the millions of African-American workers pouring into the war industries at the outbreak of World War II...

...Second, the spread of employee rights has suffered through its necessary dependence upon professional, governmental expertise...

...Moreover, Yeshiva generated a Catch-22: the more workers win control and participation at work the less likely they are to be protected as workers, in which case the forms of participation might well continue, but merely as a mask for managerial control...

...4 Rights consciousness spread to every corner of society...

...If one looks at the newsreel footage or still photographs of that era, one sees an enormous number of American flags, symbolic of this new sense of rights-conscious Americanism...

...They were now the subversives, while the workers upheld law and order...

...The Wagner Act contained numerous rights and protections: prohibitions against employer-dominated unions and unfair labor practices...

...In 1941 he threatened a March on Washington, demanding that the Roosevelt administration ensure that black workers had equal access to the new jobs in the booming war industries...

...By 1980, in First National Maintenance Corporation, the Supreme Court ruled that companies have no obligation to bargain over—or even to provide advance notice of—the closure of part of their operations...

...Thus the two most important pieces of "labor legislation" in the United States in recent years are the Americans with Disabilities Act of 1990 and the Family and Medical Leave Act of 1993...

...Ushered onto the street amid a crowd of angry steelworkers, Perkins resolved her dilemma when she saw an American flag flying above the local post office building: it was in the lobby of this federal institution, under a flag representing the power of the national polity, that she resumed her speech detailing, for a largely Catholic, immigrant audience, their rights under the National Recovery Administration's labor code for the steel industry...

...Strong unions, an active program of job creation, and an elaborate system of job training and recruitment linked fair employment and full employment into a unified program...

...But as part of the civil rights package, "fair employment" moved out of the laborite world, in which employee rights were seen as part of the tradition guarded by the unions, the Labor Department and the old New Dealers, and into a realm in which rights were individually defined and litigated...

...Only unions had standing with the NLRB, not individuals...

...Like the latter-day civil rights acts, the Wagner Act set up a federal agency—the National Labor Relations Board (NLRB)—to administer and safeguard these rights...

...Meanwhile, the Equal Employment Opportunities Commission (established under Title VII of the 1964 civil rights law), actually expanded its authority and jurisdiction during the decades in which Republican presidents held the White House...

...Doris Turner, a leader of the hospital workers, came to see the linkage between civil rights and union rights: "Really and truthfully, they were one struggle, just being waged in different places...

...The court's position was that "the harm likely to be done to an employer's need to operate freely in deciding whether to shut down part of his business for purely economic reasons outweighs the incremental benefit that might be gained through the union's participation in making the decision...

...not unexpectedly the single most important financial contributor was a trade union, the United Automobile Workers...

...Thus when statutory employment rights came in conflict with collectively bargained work rules, the former have been routinely "preempted" by the latter, under an expansive definition of Section 301 of the Taft-Hartley Act...

...For example, at the Imperial Foods chicken processing plant in Hamlet, North Carolina, twenty-five workers died in 1991 when their low-wage, nonunion factory burst into flames...

...All further limits on management power, and all enhancements of labor's rights, were supposed to flow from the private battle waged between an employer and SPRING • 1997 • 67 Work Rights, Individual Rights this organized employees, with government turning its face away...

...No matter how well it is done, such regulation takes disputes out of the hands of those directly involved, furthers the influence of administrative professionals, sets up these experts as the target of everyone's resentment, and ends by increasing litigiousness and undermining the legitimacy of government...

...The Wagner Act was a radical legislative initiative because it left as its legacy a permanent set of institutions within the very womb of private enterprise—which offered workers a voice, and sometimes a club, with which to resolve their grievances and organize themselves for economic struggle and collective political action...

...But no consistent regulation is really possible without hearing from the workers themSPRING • 1997 • 71 Work Rights, Individual Rights selves, and their voice will remain silent unless they have some institution—perhaps a union— that protects them from the consequences of speaking up...

...Indeed, the whole history of OSHA has shown that no army of government inspectors can ensure management compliance with safety standards without help of systematic, organized pressure at the worksite itself...

...It leaves it to another body—a court, a panel, a government agency—to sort out the various claims and reach a just approximation of the appropriate balance...

...A conservative Congress, a divided working class, and a judiciary infinitely sensitive to the claims of management prevented the organization of most of the South, almost all privatesector white-collar employees, and the whole world of engineers, supervisors, technicians, managers, and sales personnel: all those workers who we now think of as the great American middle class...

...Industrial democracy therefore had a twofold meaning: on the one hand it meant an equality between organized labor and its employer adversary, and on the other, it established a highly political institution in which workers could debate, discuss, and determine the majoritarian sentiment of the membership...

...But the FEPC idea of the 1940s and 1950s did not stand alone...

...Taken to its logical conclusion, rights consciousness absolves individuals of the consequences of their own grievances...

...5 David Abraham, "Individual Autonomy and Collective Empowerment in Labor Law: Union Membership Resignations and Strikebreaking in the New Economy," New York University Law Review 63 (December 1988), pp...

...In the United States, trade unions organized about 33 percent of all nonagricultural workers at their height, but the collective bargaining system never became the employment norm...

...It was a March for Jobs and Freedom...

...In the textile industry, restaurants, hospitals, and municipal service, women workers, and AfricanAmericans in particular, provided the backbone for successful organizing campaigns...

...The predominantly liberal court of the early postwar era kept state employment law out of the unionized workplace, but it also cut workers off from the potential benefits of the rights-conscious employment laws that were written in the years after 1964...

...certainly not at variance with the rhetoric of the American civil rights movement a quarter century later when Martin Luther King, Jr...

...To Abraham, this line of argument "thwarted the function and jettisoned virtually the entire raison d'être of labor law...

...In mid-century America the rise of the new industrial unions did much to transform an ethnically heterogeneous working class into a social formation whose "whiteness" provided an essential key to its sense of identity and entitlement...

...Indeed, the courts now ruled "self-help" illegal when undertaken outside the scope of the union's grievance or arbitration procedures...

...and when thrown onto the defensive, American unionists have found it all too easy to transform their organizations into the kind of job trusts that generate their own racial and gender hierarchies...

...This is usually considered a great victory, and indeed it was...

...Leon Fink and Brian Greenberg, Upheaval in the Quiet Zone: A History of Hospital Workers' Union, Local 1199 (Urbana: University of Illinois Press, 1989), p.113...

...q Notes As quoted in American Social History Project, Who Built America...

...The first is that of enforcement...

...Lawyers have been able to use a Constitution written over 150 years ago to cover the complex issues of modern life...

...The wartime FEPC had little actual power, but it established a decisive precedent...

...Back in the late 1960s," remembered one union organizer, "whenever you went into one plant the first thing you looked to was how many blacks were there working...

...The radical social reality underpinning the assertion is that of an industrially disenfranchised, immigrant working class suddenly awake to the emancipatory vision of a pluralist and socially conscious Americanism...

...But if the spirit of immigrant labor and that of the African-American civil rights movement shared much in common, the administrative structures designed to advance their struggles differed radically...

...The two most radical pieces of U.S...

...But three problems arise in the complete substitution of a rights-based model of social regulation for one based on the collective advancement of mutual interests...

...4 American Social History Project, Who Built America?, pp.586-604...

...But at the very moment in which this great rights-conscious revolution was being carried forward, the model of collective action embodied in the Wagner Act was reaching a dead end...

...For example, when it comes to wrongful discharge claims, unionized workers, relying upon a cumbersome and expensive system of internal arbitration, are often at a disadvantage when disputes involve drugs and drug testing, defamation by their supervisor, unlawful searches, and so on...

...Its advocates, in both the labor movement and the civil rights community, saw it as part of a larger social democratic project designed, like the Wagner Act and Social Security, to raise "the standard of living and purchasing power" of the entire working class...

...The result is a centralization of power at the top and an atomization of society at the base...

...The sentiments expressed in the UAW's stewards' handbook did nothing to prevent racist hate strikes against the upgrading of black workers in auto plants during World War II...

...When local elites—factory managers, city officials, police captains— continued to suppress union organization, they were accused of undermining the law and defying presidential authority...

...Thus Section 8 of the Wagner Act—which prohibits employers from discriminating against an employee because of union membership—protected workers by constraining traditional "employmentat-will" hiring and firing practices and, thereby, creating "job rights" by federal statute...

...His smalltime dictatorship has been overthrown, and he must be adjusted to a democratic system of shop government...

...All this imposed an enormous burden on the unions, even during their heyday in the 1940s and 1950s...

...In other words, any employee who has the discretion to think on the job, to use judgment in interpreting commands— anyone whose job has not been reduced to mindless routine—is excluded from the Wagner Act framework of representation...

...These complaints are not designed to add yet another voice to contemporary assaults upon the American welfare state and its civil rights laws...

...About freedom of speech and the equality of men and the importance of having one law—the same law—for rich and poor, for the people you liked and the people you didn't like . . . . About the uses to which wealth and power could honorably be put...

...A new feminist consciousness within the workplace has helped generate laws covering areas of interpersonal relations and employer-employee contact once considered exclusively private...

...In the 1960 Lucas Flower case, for example, the Supreme Court insisted that the mere presence of an arbitration clause in a collective bargaining contract meant that the union had waived its right to strike over grievances...

...Bell gives us the point of view of Dobie, a Slovak steelworker, whose understanding of an egalitarian citizenship is shaped 66 • DISSENT Work Rights, Individual Rights by his participation in the great organizing drives of his union, the United Steelworkers of America: Made in the U.S.A., he thought, made in the First Ward...

...In such a situation the steward goes through his contract with a fine-tooth comb to find some provision which will cover this particular situation...

...1281, 1314, 1316-1323...

...But the central institution designed to bring "industrial democracy" to the worksite was not the NLRB itself, but an autonomous, nongovernmental institution—the trade union—certified as a counterweight to the concentrated power of capital...

...3 International Education Department, UAW-C10, //ow to Win for the Union: A Discussion for UAW Stewards and Committeemen (Detroit, 1940), p.8...

...2 Katherine Van Wezel Stone, "The Post-War Paradigm in American Labor Law," Yale Law Journal 90 (June 1981):1509-80...

...During the very same season in which Congress passed the 1964 civil rights act, the Supreme Court—the liberal Warren Court—ruled, in the now obscure Fibreboard decision, that trade unions had no right to bargain over what the courts defined as issues (such as production planning, price schedules, and investment decisions) that lie "at the core of entrepreneurial control...

...But collective action, institution building, and rights consciousness are not mutually exclusive, and we need quickly to redress the balance if the American system of work rights is not to disappear...

...It was the way you thought and felt about certain things...

...The courts also ruled, in a series of decisions through the 1950s and 1960s, that huge numbers of workers—professionals, supervisors, technicians, security personnel, and so on—were, for the purposes of the labor law, not workers at all...

...and despite the rise of public-employee unionism in the 1960s and early 1970s, organized labor has seen both its absolute and relative size decline for more than two decades...

...Even among those opposed or indifferent to the fate of the labor movement, such rights-consciousness proved remarkably seductive...

...An emblematic moment came on the day in 1934 when Secretary of Labor Frances Perkins visited the unorganized steel workers of Homestead, Pennsylvania, to hear their grievances and explain to them New Deal labor policy...

...provisions ensuring employee free speech and representation elections...

...Equally important, the courts turned the very idea of industrial democracy, which had once occupied the very heart of the collective bargaining process, into an exclusionary principle that exempted unionized workers from many of the statutory rights that those same courts and legislatures had begun to create or enforce...

...In too many cases, workers have used the new work rights that emerged out of the civil rights movement to democratize gender and racial hierarchies, only to see their real security and opportunities undermined by the dramatic transformation of their working environment over which they have had virtually no control...

...Indeed, the postwar Supreme Court elevated private arbitration under collective bargaining to such an exalted status that the judiciary has virtually reprivatized labor relations, establishing a rigid barrier between the workplace and external sources of law, thus sealing arbitration and the collective bargaining process from the rebirth of the rights-conscious constitutionalism that has been such an otherwise notable feature of post1960s American jurisprudence...

...If workers are protected against sexual harassment by the Equal Employment Opportunity Commission rather than their union shop steward, the employee's rights are protected nonetheless...

...All of the old industrialized nations face these problems...

...Union density reached its height in the early 1950s...

...In the 1972 Granite State decision, Justice Douglas argued, "When there is a lawful dissolution of a union-member relation, the union has no more control over the former member than it has over the man in the street...

...Courts and administrative agencies therefore remain flooded with claims of those seeking redress for employer harassment, dismissal, demotion, or other injury...

...But it wasn't where you were born or how you spelled your name or where your father come from...

...About human dignity, which helped man live proudly and distinguished his death from an animal's, and finally about the value to be put on human life, one's enemy's no less than one's own.' Such was the ideological fruit of labor's great upsurge in the 1930s...

...government publication of 1973, "and young blue collar workers . . . are demanding the same rights and expressing the same values as university students...

...During the 1960s and 1970s—the very years in which civil rights law was being codified—Congress did nothing to liberalize labor relations law, even when the Democratic party commanded substantial majorities in both houses of the legislature...

...Both transformed the world of work and the values and expectations held by workers, managers, and that loose assortment of politicians, academics, and editorial writers who shape the way we think about the world...

...The explanation for America's uniquely weak system of workplace representation arises not out of the "post-industrial" character of the computerized workplace or from the pressures generated by the boom in low-wage manufacturing abroad...

...This new sense of a rights-conscious Americanism is manifest in Thomas Bell's 1941 novel Out of This Furnace...

...Ironically, this segregation was a product of the court's most liberal justices—William 0. Douglas among them—whose impulse was to defend both collective bargaining and the autonomy of the arbitration system from conservative legislators who deployed a discourse of "rights," including a "right to work," in the interests of anti-union management...

...The emergence of a vibrant sense of rights consciousness— whether it be held by second-generation Slavic workers in the 1930s, by AfricanAmericans in the 1960s, by middle-class women in the 1970s, or middle managers in the 1980s, remains crucial to the construction of a democratic polity...

...In 1965 and again in 1978, presidential efforts to ease the difficulties confronting union organizers were turned back by a coalition of Republicans and Southern Democrats committed to a pro-employer status quo...

...Thus in the 1970s women workers won a large employment discrimination settlement against AT&T, but the downsizing of the corporation in the 1980s and the failure to win substantial compensation for those most affected, has rendered their victory a pyrrhic one...

...Union solidarity is seen only as a coercive set of legal/administrative pressures, curb70 • DISSENT Work Rights, Individual Rights ing the work rights of the individual ex-unionist...

...Collective bargaining alone could never resolve these difficulties...

...One might argue that the protective functions unions once embodied are being taken over by an elaborate set of new agencies, new laws, and new advocates...