Wednesday, August 26, 2009

Hutchison: EFCA is Racist

Hutchison

Harry Hutchison (George Mason) has just posted on SSRN his article Employee Free Choice or Employee Forced Choice? Race in the Mirror of Exclusionary Hierarchy.  Here's an excerpt of the abstract:

The Employee Free Choice Act (EFCA) is arguably the most transformative piece of labor legislation to come before Congress since the enactment of the National Labor Relations Act of 1935 (NLRA). Putting the potential impact of the EFCA in historical perspective, one commentator contends that the NLRA marked the culmination of a systematic effort of the Progressive movement that dominated so much of American intellectual life during the first third of the twentieth century. As it was widely acknowledged at the time, the NLRA was revolutionary in its implications for American Labor Law. Less widely recognized were the adverse effects of this and other New Deal statutes on people of color. Readily available evidence shows that President Roosevelt’s insistence on raising the price of labor (1) increased unemployment and human suffering, and (2) also widened the unemployment gap between blacks and whites . . . .

One of the newest attempts to transform labor relations is the EFCA. The first to disappear under the EFCA would be a system of union democracy whereby unions could only obtain the rights of exclusive representation for firms if they could prevail in a secret-ballot election. Second, the EFCA would eliminate the necessity of a freely negotiated collective bargaining agreement between management and labor and instead substitute compulsory arbitration. While some labor union advocates contend that law ought to be conceived of as a vehicle to democratize the workplace by redistributing power in labor markets in favor of workers, while concurrently demolishing hierarchical command structures that entrench gender, race and class lines, this proposal would likely expand labor hierarchy, labor market cartelization and diminish the employment prospects of racial minorities. As such, the EFCA is marked by contradiction. This paper deploys Critical Race Reformist theory, economics and apartheid-era South African labor history in order to show that rather than embracing freedom for workers, eliminating poverty, and expanding opportunities for all, this proposal would likely invert such goals and instead operate consistently with the record of exclusion and subordination tied to American Progressivism and the labor movement.

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https://lawprofessors.typepad.com/laborprof_blog/2009/08/hutchison-efca-is-racist.html

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Comments

I must admit I am unfamiliar with the conclusions that the New Deal hurt African Americans, but wow, this goes against everything I've ever seen, heard, or experienced in my workplace. There is just no way. It's impossible.

Posted by: John Blickenstaff | Aug 26, 2009 11:56:12 AM

Is the thesis that African Americans are better off without unions and collective bargaining, or just that the NLRA has tended to favour white American men mostly? The latter point is I'd think well-known and not very much disputed, but the former would be surprising. How is the current model of nonunion, at-will employment working for African Americans? I'll be interested to read this article. Thanks for making us aware of it.

Posted by: David Doorey | Aug 27, 2009 8:40:05 AM

John: It's not only possible, it's well-documented. A good place to start is David Bernstein's "Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal."

See http://mason.gmu.edu/~dbernste/Redress.html

Posted by: anon | Aug 28, 2009 8:40:34 AM

If Labor and the Civil Right Movement were against each other so much then why was MLK shot while organizing?

Posted by: John Blickenstaff | Aug 29, 2009 3:40:52 PM

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