Taking Back the Workers’ Law: How to Fight the Assault on Labor Rights
By Ellen Dannin
Cornell University Press, 2006
Citizen Wealth: Winning the Campaign to Save Working Families
By Wade Rathke
Reviewed by Marc Dann
Congress’s tabling of the Employee Free Choice Act is among the many troubling signs that the political process, even with Democrats controlling the White House and both houses of Congress, is not going to be sufficient to protect, let alone improve, the status of working Americans. In fact, the recent health care and financial services debates show that the grip of corporate lobbyism on Capitol Hill and the White House may be stronger than ever. And, as always, the voices of those who work for a paycheck continue to be drowned out by the overwhelming resources of American corporations. This imbalance is certain to become worse, as the long-term impact of the U.S. Supreme Court’s 2010 Citizens United v. Federal Election Commission decision (which removes limits on corporate political spending) plays out. Two recent books outline strategies, outside of the traditional political process, that can protect workers from wage theft, consumer fraud, and corporate abuse of the legal system, while helping to provide working-class families with improved access to health care and the legal system.
In Taking Back the Workers’ Law: How to Fight the Assault on Labor Rights, Ellen Dannin proposes a legal strategy, one that’s much like those employed by the NAACP during the civil rights movement, that challenges anti-worker precedent in the enforcement of the National Labor Relations Act (NLRA) and other laws enacted to protect workers. Such well-intentioned legislation as the NLRA, the Davis-Bacon Act, and the Service Contract Act has shifted from operating as a sword designed to protect the working class to a corporate shield that prevents low-wage workers, and all those who seek collective action, from asserting their rights in the workplace.
Dannin’s book focuses on one consequence of the legal budget tightening that has resulted from the several-decades-long decline in union membership. Labor lawyers, concerned for their clients’ solvency, have been restrained from bringing cases (and making additional arguments within existing cases) that test some of the unintended consequences surrounding worker protection laws that current legal precedents have created. In some cases, such restraint takes the form of conceding issues that aren’t likely to be won until the appellate level. In others, it means foregoing the type of creative and innovative legal arguments that might end up changing such rigid precedents in the future.
Dannin also encourages lawyers, union leaders, and workers’ advocates to think out of the historical boxes when considering how to improve the law for workers. Lawyers representing unions and workers must renew their determination to test and challenge the contorted meanings behind the often ill-worded federal collective bargaining wage laws that some courts have applied. It is time for those of us who represent unions and workers afflicted by corporate wage theft to reread the statutes and reconceptualize arguments before submitting the same canned briefs that our firms have been filing for twenty years.
An important premise of Dannin’s book is that lawyers representing labor unions and individual workers have to look for opportunities (while still meeting their fiduciary duties to clients) to get off the defensive and advocate for more creative—and often more historically accurate—applications of existing federal and state labor laws, particularly the NLRA. She begins by encouraging us to reread the language of the statute, which can easily be read as unambiguously protecting the rights of workers. Dannin quotes from the NLRA itself:
It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting 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 and other mutual aid or protection. (National Labor Relations Act, 29 U.S.C. 151)
For example, Dannin points out that while the “right” to replace striking workers is a product of decades of unfavorable judicial precedent, the words of the NLRA that ban the replacement of striking workers are unambiguous. Even labor leaders and lawyers who deal with the NLRA on a daily basis might be surprised to read Section 13 of that act: “Right to strike preserved: Nothing in this Act [subchapter], except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike or to affect the limitations or qualifications on that right” (29 U.S. 163). The NLRA clearly says that the right to strike will not be interfered with or impeded or diminished in any way. It is virtually impossible to suggest that such statutory language allows companies to replace striking workers. Dannin persuasively argues that practitioners should go back to basics by persistently reminding judges of the NLRA’s (and other, similar statutes’) plain language.
Taking Back the Workers’ Law provides a playbook for a strategy—similar to that of the civil rights movement—to convince courts to apply the NLRA, and other laws designed to protect workers, in a way that actually protects workers. Dannin argues that lawyers representing workers and unions should identify the areas in which judges have genuine discretion—and then take on the exhausting task of convincing them to use it. Even in those cases where courts take the easy way out, she encourages practitioners, particularly National Labor Relations Board General Counsel lawyers, to insist on building factual records, using experts (such as economists) to support their claims. This is something the Obama administration could accomplish, totally under the radar screen of the U.S. Chamber of Commerce and other anti-worker advocacy groups.
In the civil rights movement, the NAACP and other civil rights advocates carefully chose incremental targets. Rather than directly challenging the U.S. Supreme Court’s facially unconstitutional 1896 decision to allow racial segregation in Plessy v. Ferguson, the NAACP Legal Defense Fund (LDF) chose to challenge its application, assuming correctly that states would not allocate the resources to fund the “equal” standard of “separate but equal.” By exposing the real costs of segregation, the LDF influenced public opinion and created other forms of legal precedent, preventing the concept of separate but equal from ever becoming a practical reality. That, in turn, established a legal and societal environment in which the discriminatory Plessy precedent could be overturned.
The success of those who advocate for gun rights is a more recent (and more aggressive) example of how the willingness to bring seemingly hopeless cases and make unconventional arguments has—years later—resulted in significant changes to the law, including the U.S. Supreme Court’s 2008 decision to embrace the literal meaning of the Second Amendment in District of Columbia v. Heller.
But Dannin doesn’t stop at offering strategies geared toward bringing the NLRA back to its originally intended purpose. She explores the idea of fashioning judicial precedent that recognizes a private employee’s property right in his or her job. This is not a stretch from the application of contract law to commercial transactions. A company with a verbal contract to purchase or sell widgets at a particular price has a court-protected property interest in its right to do so. It defies logic that a verbal agreement to provide labor at a particular rate of pay is not afforded the same degree of protection. Consider the extra layer of protection given to public employees who have constitutionally-protected property rights in their jobs. Public employees have leveraged the U.S. Constitution’s proscription against a due-process-free governmental seizure of personal property to gain better protection in the workplace. Why shouldn’t workers and their unions be able to convince the courts to turn the tables and allow workers to reasonably (and legally) rely on the promises of their employers?
An extension of what Dannin proposes is the encouragement and support of more entrepreneurial efforts by lawyers who file minimum wage and overtime suits under the Fair Labor Standards Act (FLSA). Lawyers could use the Federal False Claims Act to enforce Davis-Bacon, the Occupational Safety and Health Act, and other worker protection laws; and they could use regulatory enforcement tools to hold nonunion and cheating employers accountable.
All that said, it is also important to be cognizant of the short-term risks associated with novel cases and legal theories. Bringing the wrong case before the wrong court can easily exacerbate existing anti-worker legal precedent. Dannin should have offered some of the same admonitions (such as the importance of picking targets carefully) that Wade Rathke provides in Citizen Wealth: Winning the Campaign to Save Working Families. Rathke draws on his forty-year experience with ACORN to propose several tough-love routes toward developing win-win partnerships with the business community to improve the conditions of the working class.
In Citizen Wealth, Rathke argues that working-class and poor Americans can build better lives for themselves by working outside of the political system. It didn’t take ACORN too long to realize what it faced within that system when, after ultimately false accusations about its operating practices were released, almost every politician in America disclaimed the organization. In Citizen Wealth, Rathke lauds the type of work that ACORN did best—blending the unrecognized economic power of workingclass and poor people with political and community organizing (unlike its role in administering government contracts for which it was widely criticized). He theorizes that the design of a new community organizing and activist playbook (much like Dannin’s proposed next-generation legal playbook) is central to any constructive reform. Focusing on creating alternative advocacy strategies, Rathke trumpets the potential use of already-available means that aren’t often considered part of the conventional toolbox.
Citizen Wealth encourages activists to mobilize outside of the union realm to improve the economic security of those at the bottom of the income scale. Arguing an unlikely perspective for a lifelong community and liberal political organizer, Rathke promotes the value of cherrypicking future battles by embracing the self-interested mindset of institutions and corporations that profit off of the poor and working class. He suggests that middleand lower-class workers’ economic empowerment is best secured by identifying competitive opportunities within particular industries, especially those that draw large profits from poor and middle-class consumers. He recommends targeting specific industries—from student loans to home lending to consumer goods—to find political and public relations mechanisms that can shift the balance of economic power far enough to benefit poor and working-class families, but not so far as to keep potentially cooperative business partners from responding favorably.
To illustrate this point, Rathke identifies several cases that brought attention to outrageous and unfair—even by anti-worker conservative definitions—acts of corporate conduct, like charging 372 percent interest on payday loans or engaging with stores, like Wal-Mart, that prey on the working class and poor. Organizers’ persistent determination led to resolutions that allowed everyone involved to save face and increased the wealth at the bottom of America’s economic ladder.
Rathke also encourages the labor movement to redefine itself as a broad movement, representing workers across companies and industries rather than viewing itself as merely a collection of bargaining units that serves workers in specific strata. He then proposes using the purchasing power of those workers. The AFL-CIO has begun to move in this direction by organizing non-members for political and grassroots purposes. A practical sign that this process will work is the fact that, in recent years, the AFL-CIO has only been able to balance its books as a result of revenue streaming in from union-branded credit cards.
ACORN’s (and other groups’) success in enacting state minimum wage laws was an important first step. Advocacy at the local political level and through public relations campaigns for living wage laws may be the next step. Some of Rathke’s proposals are new, but many have already been employed by efforts like the AFL-CIO’s Working America program. Many of these tactics have been staples of political and labor organizing for nearly a century. What Rathke adds to the mix is a keen understanding of how to identify opportunities and pick battles that make sense, both for the people whose interests he seeks to advance and for the targeted industries or institutions.
The new model for community organizing should harness the buying power of working-class and poor people (who spend virtually all of their earned income)—it’s vital that these consumers get to the table with the companies that serve them. Activists and worker organizations must convince such companies that it is more profitable to provide services and goods at a fair price, using transparent and ethical business practices, than it is to deceive and exploit this huge market of potential consumers. Rathke recounts his efforts to convince the thriving income tax refund advance industry to adopt more equitable measures for its mostly poor and working-class clientele.
Both books emphasize the importance of leveraging the obvious, but unrealized, promise of existing law. As Dannin looks to the NLRA, Rathke looks to the hundreds of thousands of people who are eligible for already-enacted programs—such as the Earned Income Tax Credit, food stamps, and Temporary Assistance to Needy Families—but are not availing themselves of this available government support. Rathke correctly points out that organizing resources should first be allocated toward making sure that eligible families take advantage of the fruits of battles already won. He proposes harnessing technology and modern marketing practices to make sure the benefits of such programs get to those who need it.
Both Citizen Wealth and Taking Back the Workers’ Law provide good starting points for figuring out how to enhance the quality of life of those below the median income line, now that the stark realization has set in that the political process—in and of itself—will not be enough. The labor leaders and community organizers of the future (and the lawyers who represent them) need to rethink their business models and incorporate more creative and entrepreneurial strategically-targeted tactics if they hope to advance the economic security of the people they serve.
New Labor Forum 19(3): 49-50, Fall 2010
Copyright © Joseph S. Murphy Institute, CUNY
ISSN: 1095-7960/10 print, DOI: 10.4179/NLF.193.0000008