Saturday, March 12, 2011
As the legislative battle in Wisconsin continued on Friday with the enactment of a bill which limited collective bargaining rights of most state employees, similar disputes are simmering across the country. Along with Wisconsin, Ohio, Iowa, and Idaho, among others, seem poised to join the growing group of state governments that are prohibiting at least some public employee collective bargaining. Also on Friday, the West Virginia House of Delegates passed a resolution supporting the public employee unions in Wisconsin. Despite this show of support, and unlike Wisconsin, which still allows collective bargaining in limited circumstances, West Virginia law does not extend collective bargaining rights to any public employees.
These controversies raise issues of democracy and dignity. WVU College of Law Professor Anne Marie Lofaso recently commented on a new federal proposal that would count a non-vote as a no-vote in elections regarding unionization by saying that such a process would run "counter to the spirit of democracy." Likewise, Lofaso uses notions of democracy and dignity as the basis of her theorizing about workers and unions. In Toward a Foundational Theory of Workers’ Rights: The Autonomous Dignified Worker, 76 UMKC L. Rev. 1, available on ssrn, Lofaso critiques the conventional free-market view of workers and then advocates “a novel theory of grounding workers’ rights in two values: autonomy as promoting an individuals’ freedom to become part author of his or her working life and dignity as promoting each individual as having equal moral worth.” Id. at 3. Indeed, “[t]he conflict between the property rights of capital and those of labor in market economics signals an incompatibility between the current capitalist conception of property rights and the human right to work.” Id. at 38.
Professor Lofaso writes:
[W]orker autonomy means employees who (1) know what issues affect their working lives and know how to resolve those issues according to their own interests; (2) have access to information relevant to making informed decisions; and (3) are free to effectively decide how to resolve those issues. Autonomous workers must, therefore, possess the power to effectuate these decisions. But workers who do not gather together may simply not have the power to control decisions affecting their working lives. Thus, worker autonomy often implies some level of industrial or worker autonomy—the need for meaningful employee participation at a variety of levels, a right to any information management would deem necessary to effect wise business decisions on behalf of property owners; state intervention to protect these worker rights to be free from coercive forces, all set in a pluralist industrial or other workplace framework.
Id. at 41-42. The author concludes with specific recommendations for the Congress, Executive, Supreme Court, and NLRB, to protect the rights of the autonomous and dignified worker. Id. at 57-64.
In her most recent piece, “What We Owe Our Coal Miners,” 5 Harv. L. & Pol’y Rev. ___ (forthcoming 2011), [UPDATE: NOW available on ssrn], Lofaso focuses on the work of coal mining, work that is closely identified with West Virginia. Indeed, the statute of a coal miner (pictured right) is on the grounds of the State Capitol Complex. Despite the valorization of coal miners, the workers themselves are often under-protected, as illustrated by last year's loss of life at the Upper Big Branch mine, owned by Massey Coal Company, of Caperton v. Massey Coal Company fame.
Lofaso advocates mandating the union model on the mining industry by demonstrating that “collective bargaining above the regulatory floor is likely to result in safer, healthier mines, and that the safety records of such mines will be better justified when based on informed, unforced, general agreement.” Id. at 702. Throughout the article, Professor Lofaso observes the power disparity between coal operators and their miners; examines the incentives for operators to circumvent mining regulations; identifies several market failures, such as inequality of bargaining power, irrationality in assessing risk, asymmetrical information, and monopsony; and, finally, advocates for “extending the union model to nonunion mines” in order to resolve many safety issues. Id. at 702-03.
In sum, Professor Lofaso writes:
Coal mine operators possess greater bargaining power than coal miners. The conditions resulting in this disparity of bargaining power are precisely those conditions that Congress intended to ameliorate when it passed the NLRA. A comparison between pre- and post-regulator fatality rates in coal mines strongly supports the conclusion that current regulations make coal mines safer. Those regulations raise the floor of rights on top of which unions bargain, thereby further addressing the disparity of bargaining power . . . making it more likely that unions will bargain for even better safety conditions than current regulations permit. . . . Accordingly, it makes sense for policy makers to consider bringing the union model into the nonunion coal mine.
Id. at 726. From the more “radical solution” of compelling union representation for all coal mines, id., Lofaso also advocates more modest proposals, “such as posting miners’ rights,” or “mandate[ing] bargaining over health and safety . . . regardless of whether the miners are union represented.” Id. at 724. Ultimately, Lofaso observes that “[d]angerous jobs in industries that the public perceives to be vital to its comfort and security may be here to stay, but that does not mean that the public shouldn’t demand that policy makers focus on questions of human life and dignity in the context of these crucial multi-billion dollar industries.” Id. at 727.
The Constitutional power of the federal government to mandate unionization or even worker safety has become contenstious, as has the legitimacy of state governments relationship towards unionization. Lofaso's work reminds readers - - - in West Virginia and elsewhere - - - that such arguments have real life consequences.
with J. Zak Ritchie
(image: The West Virginia Coal Miner, bronze statue by sculptor Burl Jones, photograph by Ken Thomas, via)