Working Up Some Indignation on Labor Day

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Working Up Some Indignation on Labor Day

Published in the Maryland Daily Record September 4, 2012

Hope you enjoyed your Labor Day. You can bet the unions did not, given organized labor’s dwindling membership and growing unpopularity. A 2010 Pew Research poll showed that over half of Americans have a negative view of unions, and 61% agreed with the proposition that unions have too much power. Gallup polling shows similar results. In some critical part of the national psyche, the whole rationale of organized labor has come to seem suspect.

No More Bias For Unions

I thought about that rationale recently upon encountering yet another of those loud demonstrations against a non-union employer that have become so constant a feature of downtown life. “Shame On ____,” the signs read, naming a company that was either non-union itself or, more likely, using a non-union contractor to do site work in the company’s offices. Shame? That word invoked a norm, an accepted moral standard under which business people should feel guilty if they choose not to do business with unionized companies. But it’s not a standard most of us hold to anymore, as those polls showed.I think if you asked follow-up questions of the poll respondents, you’d soon encounter a variety of arguments based on freedom of contract. For instance: a) The picketed company had a right to contract with whatever contractor it pleased, and since unionized contractors often cost more, why should the company feel bad about hiring the non-unionized variety? Or b) If enough workers at the non-unionized contractor wanted to unionize, they could seek and win an NLRB election; what about their freedom not to unionize and deal directly, one-on-one, with the boss?

Status to Contract

They taught us in law school that a great movement of Western civilization has been “from status to contract,” a phrase coined by Henry Sumner Maine in an 1861 treatise on Ancient Law. Maine’s notion was that the development of Western law and culture turned serfs and slaves into freely contracting workers, endowing them with dignity and agency where previously they had had none. And public attitudes towards unions are surely partly bound up with this, with a fear that the control a worker exercises in negotiating with a boss directly is lost if the worker is dependent on union negotiators. It’s nice to have such concern for worker autonomy, but awfully convenient for employers, too.

In that connection, there have been other developments in Western society that also bear remembering. Back before the Middle Ages, when almost all economic activity was agricultural, much of it was also communal. Villages, tribes, or families owned the fields and the pasturage in common (hence the term “commons” to describe such plots). There might be chiefs or kings, but they were not thought of as being owners. As a result, among those who worked the land, there were not employers or employees in the modern sense, because an employer’s ownership of the enterprise is critical to the distinction. Everyone was an owner. In fairness, there probably were employers and employees as we would understand the term even at that time, in urban occupations, but not in the farming which was any country’s principal industry.

The status of serfdom and of noble ownership of the land worked by serfs was a medieval development that arose only with feudalism. Historian Daniel Richter has piquantly characterized this feudal innovation as “the bizarre European custom according to which individual warriors were entitled to possess land in perpetuity, pass it on to their lineal descendants in the male line, and force others to do the work of making it productive.”1 Otherwise put, the worker’s former status of stakeholder was lost to medieval protection rackets, and the new status of serf substituted for it.

Serfdom to Statuslessness

It is true enough, then, that the subsequent move from serfdom to contract, towards a world where one only assumed voluntarily “the work of making productive” someone else’s land was a glory of Western civilization. But it is arguable that the feudal distinction between one’s own land – or workplace – and someone else’s was not so glorious, and it wasn’t reversed in the move from status to contract, in fact it became perpetuated. One could see the trap snap shut, for instance, when the “owners” of previously common land would enclose it as their own personal economic preserve – a practice that in England was protested as far back as Thomas More and as recently as Karl Marx. At that point, anyone who wanted to work the land would have to contract with the “landlord.” The worker now had “freedom” to contract to work where before his or her status would have guaranteed the right to do so – and along with that right, the worker might have expected some say in how the enterprise was run.

The English colonists brought this pattern with them, and it displaced the Native Americans’ notion of tribal ownership and an economic system based largely on gift exchange. In consequence, by the time contract completely superceded status for determining workplace arrangements in America (i.e. at the point U.S. slavery finally was ended), the unconscious archetype all U.S. workplaces hewed to was freedom of contract of the rawest sort, one in which the employer was the equivalent of a landlord, with all the disproportionate bargaining power that implied. Workers had lost their status as stakeholders, in exchange for a questionable freedom of contract.

Restoring Status Through Job Protections

The union movement seeks to restore in modern workplaces not merely bargaining power but some of the stakeholder status pre-feudal workers had earlier enjoyed. In most collective bargaining agreements, for instance, there is a protection against dismissal of employees without just cause coupled with layoff protection rights. Together, they curtail the freedom of employers to fire at will.

Protected job tenure enrages some. As Mitt Romney famously said, he likes being able to fire people who provide him services. The oft-expressed justification for this rage is the feeling that the proprietor of the business should have flexibility to arrange his workplace as he pleases to maximize profits and best meet competition, and that governmentally-guaranteed or, worse, governmentally-imposed restrictions on the right to fire impede that flexibility.

The Union Antidote

That flexibility does, as business apologists claim, help American workplaces face the challenge posed by the comparatively high cost of U.S. labor. But American workplaces are equally challenged by the voracious demand of owners, senior executives, and investors for profit. Companies run more as commonweals and less as plantations could offset some of the labor cost disadvantage. There was a time before bosses; their role and their compensation are not utter givens. They hark back, not to some divine decree or brute economic necessity, but only, as historian Richter has reminded us, to the armed thugs who dubbed themselves nobility and carved up the common landscape during the Middle Ages, and whose successors completed the work with enclosure. Unions could be viewed as a modern antidote.

I know, I know: Labor Day, not May Day. But it needs to be said from time to time that the workers came first, and that the entrepreneurs who succeeded the landlords who succeeded the knights are the arrivistes. Recognizing that unions seek to offset an ancient imbalance provides at least an argument for the indignation they seek to invoke against non-union shops.

[1] Daniel K. Richter, Before the Revolution: America’s Ancient Pasts at Location 476 in Kindle edition (2012).

Copyright (c) Jack L. B. Gohn

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