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Sunday, January 11, 2009

Is uncoercive workplace democracy impossible?

The ongoing propaganda battle over the Employee Free Choice Act (EFCA) is largely two sides’ trading anecdotes. The apparent futility of the debate suggests a larger and depressing possibility – that uncoercive workplace democracy is simply impossible.

EFCA provides (among other things) that employees can certify their desire to form a union by checking a card rather than by voting in a certification election. Employers’ organizations argue that the “card check” deprives employees of a secret ballot, exposing them to intimidation by union organizers. (The idea that EFCA undermines the secret ballot is a constant refrain in the anti-EFCA press). EFCA supporters respond that the “secret ballot” in certification elections demanded by Chamber of Commerce types is actually an intimidated ballot: Employers use intimidating tactics – for instance, threatening to close plants or lay off workers if union representation is approved -- without fear of serious sanction from the NLRB.

Without purporting to be any kind of expert in labor relations, I am inclined to think that both sides are right. It is hard for me to imagine that union organizers would not pressure workers during card-signing campaigns in ways that we would find intolerable in, say, a school board election. (Do union folks seriously contend that a worker who refused to sign the card would never face some degree of ostracism from a pro-union workplace?) Likewise, it is common knowledge that employers pressure workers with thinly veiled threats of job loss if they vote for the union -- threats that often materialize in actual termination. In theory, the NLRB could outlaw tactics deemed to be coercive, and Congress could stiffen the sanctions to make such limits stick. In practice, the NLRB will likely be either Democratic (pro-labor) or Republican (pro-management) and dilute any statutory limits that Congress enacts.

Is the moral of the story that uncoercive democracy in the workplace is a pipe dream? This is a sad thought to someone like myself with a soft spot for Brandeisian localism. But the more the defenders and detractors of EFCA defend their version of democracy, the more dispirited about workplace democracy I become.

Posted by Rick Hills on January 11, 2009 at 03:26 PM in Employment and Labor Law | Permalink


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Mr. O'Donnell: I apologize if it looked like I was trying to use one anecdote to draw a broad conclusion. I was not. I'm peripheral here, and realize that, being peripheral, my large sections of block text will not be afforded as much weight as your own.

That being said, your last set of comments, I think, validates the point of the original post. What normative significance you ascribe to coercion and "coercion" is secondary--- we may find sitting in these workers' homes to be a good thing or not, may fall on one side or another of the line between what you call coercion and "coercion" (cue the anecdote war): that there is inevitable incentive to push for or against unionization with means other than sheer presentation of argument is the real point.

Mr. Bodie: Thank for the information. I was not aware that these addresses were actually given out as a matter of law.

Posted by: AndyK | Jan 12, 2009 12:26:26 AM

I've written about the information problems created by union representation campaigns, and I think that when it comes to the EFCA, some compromise should be attempted to resolve these information issues. Coercion is a different issue, depending on what you mean by coercion. What kind of pressure are you referring to? To me, getting fired is quite different than being ostracized. The employer will always be able to exercise coercion that is quite different in kind than the union. That's why I think th EFCA makes sense, unless we figure out some way of providing for better protection against employer retaliation.

Physical intimidation or violence is another matter. I haven't seen a lot of hard evidence that there is real physical coercion out there -- I think it's mostly anecdotes. But if there is, then victims should bring criminal charges. Violence is violence.

What about AndyK's example of organizers hanging out at employees' homes? Not violence, but it may seem threatening or invasive. Unions get employee home addresses once they've filed an election petition. The reason is to allow unions a chance to make their case to employees. Unions are not allowed on employer property without permission, and it can be difficult for unions to get their message to employees. There's a possible solution to this, I think: do not provide employee home addresses, but in return allow unions to come onto employer property to make their case. The "hows" of this would have to be worked out, but it seems like a potential compromise.

Posted by: Matt Bodie | Jan 11, 2009 10:58:05 PM


I might have mentioned there's no little irony that in your response to Rick's lament over the trading of anecdotes (assuming for now that's indeed the case) you offer us yet another anecdote. And then you draw from that a concusion that hardly seems warranted by either the anecdote or anything said thus far: both sides to this debate/battle can grant that human beings are prone to corruption and/or willing to resort to coercion without sufficient moral warrant. The point is, rather: Do the "procedures" in question serve to rely on or encourage such things as corruption and coercion or do they help us limit or discourage occurrences of same or at least mitigate their effects or is their impact perhaps relatively negligible in either direction? Or perhaps, as in the example from Raz, one kind of (micro-)coercion is of a kind of order and magnitude that permits us to reduce the instances of (macro-)coercion, both distributively and in the long-term, and thus we find sufficient moral justification for its employment. Think, for instance, and in part by way of analogy, of cases of "dirty hands" (after Walzer) in political life (as discussed by C.A.J. Coady). Often the justifications of such otherwise ethically repugnant or troubling behavior assume static or unchangeable social and political conditions that make the resort to dirty hands appear reasonable or unavoidable. But perhaps our ethical focus should be on the malleable (because contingent and historical) conditions that gave rise to the problem of dirty hands in the first place. In other words, we need not assume some intransigent fact about our nature that condemns us to a proclivity for corruption and coercion but rather examine the specific environments where such corruption and coercion tends to flourish or remain recalcitrant. So, while it is true that political environments are often morally corrupt, this should not be a license to draw an inference about human nature: "The point is not that 'power tends to corrupt,' though it does, but that the values which politicians find themselves driven to promote, and others find themselves driven to endorse, may be the product of degraded social circumstances and arrangements." Coady provides us with the overarching lesson here:

"[T]he problem posed by corruption is not just that we are likely to draw the wrong norms from political behaviour (though this is important for those who rely so heavily upon appeals to role morality) but that we tend to focus our moral concerns too narrowly. We concentrate upon the particular act that will require dirty hands and ignore the contingency and mutability of the circumstances that gave rise to it. Yet it is precisely these circumstances which often most deserve moral scrutiny and criticism [as both Rousseau and Marx appreciated], and the changes which may result from such criticism can eliminate the 'necessity' for those types of dirty hands in the future. This suggests that philosophers and other theorists have in fact been too complacent in their acceptance of the neutrality and immutability of the background circumstances which generate 'dirty hands' choices. Robert Fullinwider once remarked that we need politicians just as we need garbage collectors, and in both cases we should expect them to stink. But, once upon a time, we needed the collectors of what was euphemistically called 'night soil' and, in many parts of the world [yet see http://ratiojuris.blogspot.com/2008/11/global-distributive-justice-sanitation.html], human ingenuity has eliminated the need for that very malodorous occupation."

In other words, we might leave highly questionable or arguable assumptions about human nature out of the picture, or at least afford them a less prominent place, and focus our concerns and energy more aptly elsewhere.

Posted by: Patrick S. O'Donnell | Jan 11, 2009 8:40:06 PM

Well, as Joseph Raz taught (at least some of) us in The Morality of Freedom (1986), there's coercion, and there's "coercion," to wit (and bear in mind I'm citing the conclusion of an argument, the details of which will be found in the book):

"So if the government has a duty to promote the autonomy of people the harm principle [going back to Mill and Hart] allows it to use coercion both in order to stop people from actions which would diminish people's autonomy and in order to force them to take actions which are required to improve people's options and opportunities. [....] It follows that a government whose responsibility is to promote the autonomy of its citizens is entitled to redistribute resources, to provide public goods and to engage in the provision of other services on a compulsory basis, provided its laws merely reflect and make concrete autonomy-based duties of its citizens. Coercion is used to ensure compliance with the law. If the law reflects autonomy-based duties then failure to comply harms others and the harm principle is satisfied [as Raz earlier explains, 'sometimes failing to improve the situation of another is harming him']."

So, I'm NOT "a priori discounting the possibility of coercion in any process," but its possibility or incidence does not necessarily thereby serve to definitively characterize the process itself, any more, say, than the unconscionable treatment of Palestinians by the Israeli state means we need refrain from calling Israel a "democratic state," or this nation's historical treatment of Native American Indians and Black people means we no longer live in a constitutional democracy.

[I'm pessimistic about the prospects of "economic democracy" which, from my perspective, would be far more democractic and meaningful than "workplace democracy" within a capitalist economic system. In both cases, however, we run into the "methodological problem of how to infer the large-scale, long-term steady state properties of a system from small-scale, short-term evidence." In any case, following Elster and Moene, the decline in unionization in this country may portend more labor-mangaged firms or cooperatives (in Scandinavia, a country with a high degree of unionization, there are comparatively few labor-managed firms, whereas the highly successful Mondragon group of cooperatives in Spain emerged in a political environment hostile to unionism).]

Posted by: Patrick S. O'Donnell | Jan 11, 2009 6:07:38 PM

When the SEIU attempted to unionize at my undergraduate university, I spoke with many of the workers. Some had no idea what was going on, others knew and supported or didn't support the initiative. Several, however, related stories of SEIU officials sitting in the houses of holdouts, refusing to leave until the cards were signed.

So yes, Prof. Hills, I think your intuition meshes with reality. Coercion and corruption are simply human nature, and all our procedures are second-best.

And Re: Mr. O'Donnell: I don't think one can a priori discount the possibility of coercion in any process. Isn't that falling into the very trap advocates of the EFCA claim people make about the Australian ballot?

Posted by: AndyK | Jan 11, 2009 5:14:41 PM

I should have said in the parenthetical comment that "uncoercive workplace democracy" is redundant.

Posted by: Patrick S. O'Donnell | Jan 11, 2009 4:59:44 PM

It strikes me as irrational to draw conclusions about the prospects of workplace democracy ('coercive workplace democracy' is an oxymoron insofar as a democratic workplace by definition would not be largely or characteristically 'coercive' in nature) from the EFCA debate. I would think one would at least rely on premises drawn from a fairly large literature about the theory and practice (the latter of course being empirical studies) of workplace democracy (I would cite that literature, but don't want to risk 'clogging' blog comments with a bibliography: it's a bit frightening for some to be confronted with a body of literature they are completely ignorant of). The political rhetoric that precedes social change and reform efforts is typically overheated and hyperbolic, particularly amongst those clinging to the status quo (someone at this blog once cited Hirschman's The Rhetoric of Reaction, 1991, along these lines). Think, for instance, how the medical profession and many employers reacted in the beginning of last century to the Progressive movement for health insurance: all sorts of horror stories were told about what would result if compulsory health insurance was enacted (and those stories turned out to be fiction, at least in those European welfare states that implemented such insurance schemes).

Posted by: Patrick S. O'Donnell | Jan 11, 2009 4:55:33 PM

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