Labour and Democracy Notes

Labour and Democracy

• Democracy is a central project of labor law, especially crucial today with rising authoritarianism.

• This chapter examines the relationship between labor law and democracy, exploring the tension between democracy and labor under capitalism.

• It traces the evolution of ideas on workplace democracy and the relationship between workplace and political democracy, including unions as a defense against authoritarianism.

• A critical task for labor law scholarship is to rethink the body of law to better serve the goals of workplace, economic, and political democracy.

• Scholars ground labor law in liberal values like autonomy, dignity, and human rights or argue it should advance human capabilities or non-domination.

• A crucial organizing principle for labor law must be democracy: workplace, economic, and societal.

The Tension Between Democracy and Labour Under Capitalism

• Democracy is the right of people to govern themselves.

• Wage labor is in tension with the right of self-governance.

• Under common law, employers have the right to command employees, unilaterally set pay, conditions, and schedules, and terminate employment at will.

• Theoretically, employees could bargain, but most workers had no actual power to do so.

• Although contemporary law has limited the dictatorial power of the employer, the employment relationship remains one defined by the economically strong employer over the economically weak employee.

• Richard Hyman wrote that capitalism requires employers to extract a surplus from workers' labor, transforming work into a sphere of inequality and unfreedom.

• The late nineteenth century industrial revolution brought the contradiction between democracy and wage labor into sharp relief.

• Worker movements described wage labor as a form of bondage/slavery.

• Corporations were the functional equivalent of monarchs.

• Terrence Powderly argued that corporations rule through wealth and possess unlimited power.

• The labor movement struggled to displace despotic power with democracy.

• Unions had heterogeneous Ideas: some eschewed engagement with politics, others embraced it; some organized at the level of the craft, others industrially or even internationally; some engaged workers of all races and genders in their struggle, others sought democratic rights only for white men.

• Scholars of the era objected to the antidemocratic conditions that characterized most of people’s waking lives.

• They conceived of labour law as a corrective to private law.

• In 1897, British scholars Sidney and Beatrice Webb published their classic work, Industrial Democracy, arguing that unions were a necessary element in a democratic state.

• Democratic industrial relations required worker organizations that were internally democratic and that could exercise collective control over the workplace and industry.

• Hugo Sinzheimer pressed the idea of economic democracy as necessary to political democracy.

The Rise and Fall of ‘Industrial’ Democracy

• Industrialized democracies developed labor law systems to reduce the core conflict between the promise of self-governance and the autocratic nature of work.

• In the United States, the Great Depression forced a settlement, when, under the leadership of President Roosevelt, Congress enacted the National Labor Relations Act (NLRA).

• It guaranteed the right of workers to organize, bargain collectively, and strike.

• Senator Wagner hoped the law would guarantee democratic choice and real equality between the employer and employee.

• The statute helped facilitate a rapid rise in unionization, with over one third of Americans joining a union by the 1950s.

• The statute also contained numerous weaknesses that undermined its democratic promise.

• For example, it excluded vast numbers of workers employed in agriculture and domestic work, the majority of whom were people of color and women.

• The law embraced a ‘voluntaristic’, enterprise-based approach.

• After the 1947 Taft-Hartley Amendments, U.S. labor law limited unions’ ability to exert economic pressure and protected employers’ ability to oppose workplace democracy and campaign aggressively against unionization.

• After 1945, European countries instituted both workplace democracy and higher-level economic democracy, albeit through a range of approaches in different countries.

• Reforms included state intervention enabling establishing works councils, enterprise committees, or other consultative rights at the worksite.

• The 1960s saw an expansion of those rights in some countries.

• For example, most provided workers the right to negotiate about decisions at work only after key decisions on investment and product strategy had already taken place.

• The post-war legal regimes helped facilitate unionization and made the experience of work less autocratic, at least for those workers who were in industries with significant union density.

• They also gave rise to a period of relative economic equality in industrialized countries, during which democracy functioned reasonably well, with governments broadly responsive to workers’ interests.

• Unions not only raised wages through collective bargaining, but they fought for higher statutory minimums, safer workplaces, anti-discrimination laws, healthcare, and other social benefits.

• Corporations pushed for higher profits, moving capital to lower-wage and non-union jurisdictions.

• They also ‘fissured’ by contracting out work to low-wage, nonunion subcontractors, shrinking the portion of their labor force that enjoyed full-time work, and vastly increasing their use of ‘contingent’ workers, including part-time and temporary workers and independent contractors.

• Opposition to unionization became routine and overt, particularly in the United States, where the courts largely permitted employer de-unionization tactics and neither political party offered strong support of labor.

• Even in countries like Germany, workers’ collective power eroded.

• Works councils, for example, declined in number, and no longer bolstered broad union strategies.

• Collective bargaining rates plummeted, particularly in countries that lacked systems of sectoral bargaining, like the United States and the United Kingdom.

• Workers lost their primary mechanism for self-rule at work, leaving workplaces increasingly autocratic.

• As unions declined, economic inequality soared, reaching its highest point in many countries since the early 20th century.

Labour and Political Democracy

• Workplaces are characterized by autocratic power; workers have little influence over their wages, their schedules, their benefits, their patterns of work; they are often under surveillance or electronic monitoring, sometimes unable to take bathroom breaks, and have little ability to exit for a better alternative.

• The decline of workplace democracy has been devastating for political democracy.

• Strong democratic unions are essential to democracy.

  • They increase rates of political participation among workers.

  • They aggregate workers’ political voice in ways that produce more representative government and more redistributive policy.

  • They strengthen social ties, serving as a bulwark against racial divisions on which authoritarianism and ethno-nationalism prey.

  • They have tended to lend support to democratic institutions and anti-authoritarian movements.

  • By decreasing economic inequality, they limit one of the conditions that enables right-wing populists to thrive.

• Union members are more likely to vote, protest, sign petitions, lobby, and join associations.

• High union rates in a community correlate with greater political participation among all working people.

• The U.S. states with the highest unionization rates also have the highest rates of voter turnout, particularly among working-class voters.

• Unions produce more representative government and more redistributive policy outcomes.

• They serve as a countervailing force against the disproportionate power that wealthy corporations and elites exercise in politics, affecting the kinds of candidates that succeed and the public policies that prevail.

• Countries with stronger labor movements tend to have more generous social benefits.

• Unions play a critical role in preventing and challenging authoritarian regimes.

  • One way they do so is by serving as a bulwark against social division on which authoritarianism and ethno-nationalism prey.

  • Recent empirical research suggests that union membership can reduce racial and ethnic resentment.

• By involving workers in democratic practices both at work and in the political sphere and producing governmental outcomes more aligned with workers’ interests, they counteract citizens’ perception that government serves elites and is not responsive to ordinary people.

• Strong trade unions, and in particular high collective bargaining rates, are one of the most effective ways to reduce economic inequality, which researchers have identified as a key threat to democracy.

• Numerous examples from around the world demonstrate that labor movements often play a critical role in preventing, destabilizing, and dismantling authoritarian regimes.

• Not all unions, however, are equally supportive of democracy.

• As unions have become weaker, some have become less internally democratic.

• The research suggests that unions better support political democracy when they embody democratic values internally.

• Neoliberalism has brought about changes in the structure of work that have weakened ties among workers and allowed employers to exercise more control and surveillance over employees.

• In countries where unions have been able to maintain a stronger presence, right-wing populist movements have remained more minor actors.

A Labour Law for a Democratic Future

• Critical questions remain: How can we reconstruct the democratic role of unions in the contemporary fissured, globalized, and increasingly automated economy, and against the rising tide of ethno-nationalism and authoritarianism?

• How can labor law regimes facilitate both economic and political democracy, and, more specifically, strengthen unions’ ability to serve as a bulwark against authoritarianism?

• Some have concluded that rebuilding strong, democratic trade unions is an impossibility given political opposition and the changed nature of work, at least in the near term.

• The goal of achieving either form of democracy cannot be abandoned without risking the other.

• The existence of corporate-enabled ‘voice’ without an organization that can exercise real power over economic and political life could potentially contribute to further decline in confidence in democracy and increase the turn toward authoritarian ideologies.

• A system of political organizing that bars workers from collective bargaining is likely to be only minimally effective at advancing democratic aims.

• Political processes that engage workers in government as co-regulators are more promising—but only if they are joined with efforts to build strong, democratic trade unions.

• Any system of labor law must keep as central goals both economic and political democracy.

• Labour Law must facilitate strong trade unions that are independent from both government and business, that are themselves democratic, and that can exercise real power in the workplace, the economy, and the political sphere.

• Some legal systems regulate the internal affairs of unions in great detail to ensure robust participation rights, majoritarian governance, and transparency.

• The law should prohibit corruption and discrimination and impose a duty of fair representation.

• The goal is to ensure that union members are not subject to an arbitrary authority but rather have the ability to participate in the governance of their organizations.

• The law must guarantee structures of democratic decision-making at the level of the workplace and the firm, for example through workplace collective bargaining, works councils, and democratization of corporate boards and ownership structures.

• The law must enable sectoral bargaining that empowers unions to reduce economic inequality and exercise power over the economy.

• It must facilitate broad, inclusive unions that cut across racial and ethnic divides and that include workers who have too often been excluded from labour law’s protections, like gig workers, domestic workers, and agricultural workers.

• It must encourage and enable unions’ engagement in politics, creating mechanisms for workers and unions to engage in and legitimize democratic governance and to bargain for social welfare goods at the regional and national levels.

• The regime must protect workers’ ability to engage in collective action by striking and protesting not only against individual employers, but also on a sector-wide or multi-sector scale.

• The question arises whether the law should also protect political strikes—those in which workers seek to make a political point or to change governmental policies rather than to win a better labor contract.

• Workers’ political aims and their economic aims are often inexorably connected, and in any event, such strikes an important form of democratic engagement and can be a critical tool for resisting authoritarianism.

• Real democracy—economic and political—must remain a lodestar for labor law.