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The teeth in the Labor Law trap (Marx & Philosophy Review of Books reviews “Tells the Bosses We’re Coming”)


Tells the Bosses We’re Coming:
A New Action Plan for
Workers in the Twenty-First Century

256 pages, $26 pbk, ISBN 978-1-58367-856-5
By Shaun Richman

Reviewed by Augustus B Cochran, III

….not concerned to diagnose the cause of workers’ problems, Richman’s analysis implicitly centers work law as the principal culprit responsible for the labour movement’s predicament. He makes a strong case that labour law, rather than balancing the power disparities between employees and employers and protecting worker rights, has instead become a ‘trap’ favoring bosses and impeding worker organization. He deftly analyzes the teeth in the trap (51-53). Most flaws he identifies are well-known: enterprise-level bargaining, a right to strike weakened by permanent replacements, management’s rights and permissive topics of bargaining that exclude key business decisions determining the quality and quantity of work, benefits constituting a private welfare system that makes unionized companies less competitive, and campaign rules that advantage employers. In criticizing exclusive representation as aiding employers more than unions, however, he attacks a major pillar of the American model of unionism. Exclusivity established through National Labor Relations Board (NLRB) elections, when combined with the legal duty to represent all workers in the bargaining unit equally regardless of union membership and the encouragement of free riders (workers receiving benefits without paying even the minimal costs of representation, so-called ‘agency fees’) in public and private (‘right to work’ laws now enacted in a majority of states) employment, now imposes more burdens than benefits, he contends.

In fact, although almost everyone recognizes that the National Labor Relations Act (NLRA) is badly in need of revision, Richman controversially argues that this legal scaffolding is so fundamentally broken that it cannot be fixed but must be abandoned in favor of an entirely new approach.

In advocating forcefully for labour to break out of the trap created by labour law and orthodox organizing, Richman proves himself unafraid to skewer sacred cows and shred shibboleths held dear in labour circles. The book’s substance is matched by its style: the writing portrays the energy and impatience of an organizer, and if occasionally more depth and clarity might be desired, it conveys the intensity and urgency of the crisis facing labour. Richman’s tone is conversational, which appropriately embodies his purpose in writing: despite the title’s reference to bosses, the target audience is labour activists and progressives seeking to reinvigorate the American workers’ movement and the left more broadly. And although the title promises ‘A New Action Plan’, he does not advocate a single strategic approach. Instead, his goal is to spark a dialogue about a wide range of possible actions and reforms that labour might embrace, ranging from the mundane and commonplace to proposals unfamiliar to most non-academics and falling well outside the zone considered ‘practical’ or ‘realistic’, the constraints that place most fundamental changes beyond the limits of most American politics.

An example of ideas likely to raise hackles of union officials is minority unionism as a means of escaping the exclusive representation trap. Originally proposed by Charles Morris (2005), this tactic would encourage unions to organize and seek to bargain for those workers interested in union representation, even if members did not constitute a majority, possibly resulting in multiple minority unions in the same workplace. Even though Morris argues that the NLRA can accommodate minority unionism and that this strategy might eventually result in majority unions, this approach would probably need radical legal reinterpretations, and the course of this strategy is uncertain. Although displaying some ambivalence, recognizing the stability and resources assured by union shops and dues checkoffs, Richman endorses experimenting with this strategy.

Richman also considers several other rather fundamentally novel proposals. Without closely describing or analyzing European experiences, he suggests that some form of co-determination would meet American workers’ demand for more voice at work. Although polls prove that workers indeed want more say, the data suggest that employees might prefer non-adversarial representation, and union leaders fear that workers might be coopted into accepting works councils as substitutes for unions. Another example of ‘going back to basics’ is Richman’s willingness to challenge at will discharge as the default common law of employment. There is no doubt that lacking legal protection against unjust terminations weakens workers, but it is less clear that legislating just cause employment significantly strengthens employees vis-à-vis their employers. Experience with statutory just cause, in Montana, the only state to enact such a law, and perhaps in countries such as Brazil with legislated rather than negotiated models of labor regulation, suggests that enforcement mechanisms more than legal texts are key. A related idea is creating a private right to sue, allowing direct access to courts to enforce not only just cause statutes but other labor protections…

Read the full review at Marx & Philosophy Review of Books

Tell the Bosses We're Coming: A New Action Plan for Workers in the Twenty-First Century

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