Taking Back the Workers' Law: How to Fight the Assault on Labor Rights

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Timothy Evanson, May 28, 2007 (view all comments by Timothy Evanson)
Ellen Dannin is (now) a professor of law at Penn State. A notable legal scholar and sought-after and dynamic public speaker, this is her first full-length treatment of American labor law.

Many American labor union activists argue that the National Labor Relations Act has been so undermined by the courts and NLRB decisions that the NLRB and NLRA should be abandoned. Union organizers routinely counsel member "not to rely on the NLRB," and the reining wisdom in the U.S. labor movement is to organize outside the NLRB using card check, neutrality agreements and comprehensive campaigns.

Dannin disagrees. Dannin says the NLRA can be "retaken" by using the same strategy the NAACP Legal Defense Fund used to undermine Jim Crow and separate-but-equal in the 1930s, 1940s and 1950s.

The first third of Dannin's book takes the reader through the history of the legal civil rights movement, during which the NAACP laid out a long-term litigation strategy. NAACP lawyers chose to attack discrimination in law schools because judges were most familiar with them. Once discrimination in law schools had largely ended, NAACP lawyers expanded their attack -- first to public colleges and universities, then to public elementary and secondary education, and finally to the workplace and public accomodations (like hotels and restaurants). Whether a lay reader, interested citizen or attorney, everyone will find something useful in this portion of the text. Dannin's history is a bit dry, but her writing is clear and succinct, and strongly detailed without getting bogged down.

The middle third of Dannin's book outlines court rulings and NLRB decisions that have undermined the National Labor Relations Act. This section is a terrific primer in American labor law, but is quite complicated. The average labor leader may well find herself flipping past page after page of dense text. In a way, this isn't Dannin's fault: The courts and NLRB have so contorted American labor law to fit the desired policy outcomes that just following the reasoning (sic) is enough to give any reader a headache. What is less clear, however, is how this section of the book relates to the first or last sections. For union organizers or new attorneys, this section may be a useful primer. But it's less integral to the work.

In the last third of the book, Dannin outlines a "albor rights are civil rights" program. She argues (almost stridently) for academics, unions and lawyers to begin a decades-long process of educating judges and other attorneys about the nature of work (including the collapse of the "bright line" between supervisor and employee). Dannin places an extremely heavy emphasis on the NLRA's stated goals of social and economic justice, and says the preamble should be the foundation for a new push to "take back the workers' law." The best part of this section of the book is in outlining how academia -- particularly labor scholars -- have failed to undertake basic research into the nature of work. Solid, broad histories of the American labor movement, sociological inquiries in to the nature of work, the grey-area role of supervisors in the workplace, the nature of professionalism, how "creeping coordination" pushes even the most uneducated and unskilled workers into supervisory roles (making hash of the NLRA's distinction in this regard), and more: Academics, Dannin says, simply have not laid the groundwork for a revitalized labor movement, despite repeated declarations (by organizations such as LAWCHA) that they will do so.

This final third of the work is probably the best section by far. The writing is vibrant and Dannin's work is a clarion call to action. Her agenda for academia and the legal community is clearly laid out, and she builds a solid legal and factual case for her plan.

Dannin never quite engages the skeptic, however. Judges routinely cited law journals and sociological studies in the 1960s and 1970s; courts rarely do so today. Judges are far too aware today that the sociological studies underpinning the Supreme Court's ruling in "Brown v. Board of Education" are now considered immensely flawed, and this has bred a deep suspicion of incorporating such analysis into court rulings. It's not even clear just how Dannin intends to convince conservative judges (whether legally conservative, or just judges who adhere strongly to stare decisis) to abandon six decades of incremental pro-employer rulings, nor how the legal community is supposed to engage a politicized and demoralized NLRB. For many union leaders and organizers, Dannin's strategy may be sound. But if it takes three decades, there won't be a labor movement left to celebrate the win.

Nevertheless, Dannin's book is thought-provoking and provides some terrific insights into the state of labor law in the U.S. today. It is clearly written, detailed, well footnoted (for me, that is a huge plus!), and at times even a smart and persuasive read. That's a major accomplishment for any legal text. Ellen Dannin's "Taking Back the Workers' Law" is must-reading for any labor leader, union organizer or progressive policymaker interested in revitalizing American labor law.

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Product Details

ISBN:

9780801444388

Author:

Dannin, Ellen J.

Publisher:

ILR Press

Subject:

Labor & Employment

Subject:

Industrial relations

Subject:

Employee rights

Subject:

United states

Subject:

Labor laws and legislation -- United States.

Subject:

Business-Business Law General

Publication Date:

20060431

Binding:

Hardcover

Language:

English

Pages:

194

Dimensions:

9.42x6.36x.77 in. .98 lbs.