Law (the Legal System) and the Coercive Power of Employers as a Class

Introduction

It is interesting how little discussion arises over the nature of the legal system and how it contributes to the exploitation, oppression and economic coercion of billions of workers throughout the world. Unions rarely if ever discuss such issues–it is considered to be utopian at best–whereas unions dealing with the “real” problems that workers face every day. Representatives of unions really need to justify their lack of interest in, on the one hand, addressing such issues and, on the other hand, in failing to incorporate a critique of the legal system into trade-union education.

All Corporations as Criminals–Not Just Some, Or: Definition of the Problem

Below is a set of quotes, along with some commentary, from Professor Harry Glasbeek’s (2018) book Capitalism: A Crime Story. Glassbeek points out in various ways that the employment contract, whether individual or collective, involves coercion:

Every contract of employment, supposedly voluntarily entered into by workers, imposes a legally enforceable duty on workers to obey, a duty to exercise reasonable skill and care, a duty of good faith and loyalty. The worker is not to talk back, let alone rebel; the worker’s only goal is to serve her employer and its goals. This is deeply embedded in our supposedly liberal legal system. As Otto Kahn-Freund put it, the lawyer acknowledges that the hallmark of employment relationships is the element of subordination to which one party, the employee, is said to agree. Canada’s Task Force on Labour Relations baldly stated that a superior-inferior nexus is the distinguishing characteristic of the employment relationship.46 Even when workers can protect themselves better by having won the right to engage in collective bargaining (obviously a departure from the individual contract model), workers are required to obey all reasonable orders the employers issue. The notionally sovereign, autonomous workers are repeatedly and expressly told that the workplace is not a debating society. Coercion of individuals and appropriation of their product remain salient features of legally enforceable contracts of employment, even when laws are passed to alleviate the burdens imposed by its judicially developed doctrines.48

Force and taking—it is the norm. It is not hard to see this if law’s pretenses are unmasked. Take our illustrative mugger who threatens a person with force: the law is sanguine. He is a criminal. The employer who threatens a worker with wage loss if she insists on having clean lungs is treated, by means of a legal pretense, as merely negotiating terms and conditions of a contract (including those of safety at work) with another equally sovereign party. This is a momentous and absurd assumption. Yet, all occupational health and safety regulation begins with this premise, that is, with the initial thought that, whenever possible, safety at work should be left to bargaining between private (if unequal) actors. I will come back to this issue, but the implications are dire for workers. For the moment, I return to my claim that it is patently false to assert that workers enter voluntarily into contracts of employment. Workers have no choice about whether to sell their labour power [their capacity to work or to use the means of production, such as computers and other machines and tools]; if they are lucky they can choose among some purchasing capitalists. They must sell parts of themselves. That is their only freedom, a freedom that is best described as a freedom they are forced to exercise, an oxymoronic idea if there ever was one.

This coercive economic system and its indirectly coercive political and legal system can have deadly consequences, to which legislators have to pay lip service (as the Westray mining murders illustrate:

Legislators may have to overcome stiff opposition from the dominant class’s opinion moulders, but will act to still the palpable public unrest. They feel under pressure to reassure the non-capitalist public that politicians, policy-makers, and the law do truly care about life and the social values by which non-capitalists want, and expect, to live.

Canada’s Westray mining tragedy provides an easy illustration. Before the mine blew up, there had been fifty-two violations of mining safety regulations detected by the inspectorate, none of them leading to punishment. In the aftermath of the deaths of twenty-six workers (no employers or managers, of course), a public inquiry was established. The findings were that the operators had been incompetent at best and, at worst, heedless of human life. Note here that, while the violations of the regulations provided evidence for such findings, it was not the lack of obedience to the resultant orders for breaches of those
standards that got everyone angry. It was the business plan and the daily modus operandi of the mine owners that was seen as repellent, as worthy of criminalization. This was explicitly supported by the authoritative commission of inquiry. Its recommendation was that, if the law did not allow for criminal prosecution of corporations and of their senior operators for this kind of conduct, it should be reformed. After a lengthy battle (capitalists, their corporations, and their ideological defenders did not like this turn of events), legislation was enacted. It makes it possible to criminalize the omission to take action when it is reasonable for some senior officers to believe that it is likely that there will be a
failure to take adequate care (calibrated by regulations or general legal principles). This gradual realization that the usual exceptional legal treatment of capitalists and their corporations needs to be reined in from time to time is not jurisdictionally specific. Analogous legal reforms have been initiated in some Australian jurisdictions and a somewhat less sweeping statute was enacted in the U.K.

These recognitions that heedless risk-creation and risk-shifting, so natural, so routine to for-profit corporations, is potentially criminal in nature and might be so treated go against the grain, go against the starting premise that capitalism’s normal workings involve virtuous actors, using innocent substances and methods that may occasionally lead to unfortunate “accidents” and “spills.” The resistance mounted by capitalists and their corporations’ cheerleaders has been forceful and, thus far, has blunted the impact of the new criminal law reforms. In Canada, after ten years of operation, there has only been one prosecution in respect of fatalities at work per year, even though the number of fatalities has remained constant. The calculation is that there is a 0.1 per cent chance that a prosecution will be launched after a workplace death. That this was always going to be true can be gleaned from the fact that all these reforms took ages to put on the statute books (in Canada close to eleven years; the Australian Commonwealth statute took a similar twelve years to be given life), despite officialdom’s caterwauling about the tragic nature of the results that had led to them.

The powers-that-be continue to believe in their internalized make-believe view that it is not unethical, not criminal, for practising capitalists to undertake actions that they know, or should know, will lead to a certainty of death or other unacceptable outcomes. Thus, when confronted by policy-makers under pressure to confirm that we still live in a liberal democratic society and should punish capitalists as if they were ordinary folk, they ask everyone not to be romantic. Pragmatism is to rule. Principle is a luxury. The liberal spirit of law must be bent to allow capitalists and their corporations (and thereby all of us) to flourish. It is not a very convincing argument on which to base a legal system. At best, it is
amoral; it asks that we should be willing to suspend our ethical goals for the sake of expediency. In any event, this demand, based as it is on the notion that the suspension of our adherence to our shared values and norms is a practical response to real-world circumstances, is not backed by any sound evidence. What is certain, however, is that the tolerance for amorality, or worse, for ethical and moral failures, does nothing for the social cohesion that any society must have to flourish.

Some Proposed Solutions to the Criminal Nature of Corporations–and the Probable Resistance of Social Democrats to Such Solutions

Academics, like Professor Glasbeek, who are critical of the legal system and are aware of its class biases sometimes naively believe that those who claim to be opposed to capitalism are in fact opposed to it. For example,  Professor Glasbeek argues the following:

It would be politically useful to shift the nature of the debate. It should become a debate about whether corporate capitalism actually delivers the good it promises and that this permits it to justify asking society to bear the occasional “malfunctioning” of the system. If this can be done, anti-capitalist activists might find themselves on a more favourable terrain of struggle. Pro–corporate capitalism advocates will have to show that the material wealth capitalists and their corporations produce outweighs the dysfunctionalities generated by their ceaseless drive for more. The uneven distribution of wealth and power, the many physical and psychic injuries inflicted by the chase for profits, the rending of the values and norms by which people other than capitalists believe they should live, all can be listed and elaborated to offset the satisfaction we are supposed to evince because, in the aggregate, monetary wealth is growing ever so nicely. Making this a focus of the attack on capitalists and their corporations can reveal that their reliance on the argument that “the most wickedest of men [doing] the wickedest of things” is a proper means to deliver the “bounty” of economic growth that we supposedly need and crave is inane, perhaps even insane. An argument that their calculation of wealth does not speak of a kind of wealth that meets the aspirations of human beings who want to live in a more altruistic, more compassionate, more ecologically nurturing society can be put on the agenda.

I fail to see how such an agenda is really being promoted here in Toronto by the so-called progressive left. The progressive left talk about “fair contracts,” “good jobs,” and the like. Indeed, it is interesting how social democrats, ultimately, idealize law and the legal system. Thus, trade unionists here in Toronto, such as Tracy McMaster (union steward, organizer, former vice president, Ontario Public Service Employees Union (OPSEU) local 561 and Wayne Dealy (executive director, Canadian Union of Public Employees (CUPE) local 3902), who refer to a fair contract, indirectly idealize the legal system. They assume that there can be such a thing as a fair contract (including, of course, a collective agreement). The legal system, however, is not only “imperfect” (to use one of Ms. McMaster’s euphemistic terms) but riveted with biases against workers and the working class.

What are Wayne Dealys, Tracy McMasters of the world  doing to enlighten workers about the unfairness of contracts and the unfairness of a society characterized by the power of a class of employers? Or are they more concerned with idealizing collective agreements and minimizing the imperfections in collective agreements and the legal system of which collective agreements form a part?

What would the Dealy’s and McMaster’s say, not rhetorically but practically, about Professor Glasbeek’s following assertion:

This led to legislative interventions to “even up” the bargaining game. We now allow some unionization; we now provide some legislated standards if workers cannot win socially acceptable terms by their own free and voluntary dealmaking. The scope and kind of these protections wax and wane as political and economic fortunes change. When wins are recorded, they are significant worker friendly add-ons to what unmodified employer favouring law offers. But because they are add-ons, many of the legislative gains made by the working class are impermanent. The essentially coercive nature of employment remains intact. Still, the fact that there have been many reforms, that is, many interferences with free contract-making, may suggest to some that the continued significance of the ideological and instrumental impacts of the individual contract of
employment is overstated in the argument presented here. To many observers, the contention that workers are making autonomous choices when entering employment contracts holds up because, in the advanced economies where Anglo-American laws rule, many of us (after 180 or so years of fierce struggles) have some protections against the legalized right of employers to use their wealth as a bludgeon. It is fair to say that the modernized employment relationship looks more benign than it did, but this may only mean that its coercive nature is more insidious, less easily seen. This may make matters
worse….

The fact is that law maintains the basis for a deeply unequal relationship between employers and workers, even when this is sugar-coated by contingent gains made by the working class.

Social reformists and social democrats not only would likely ignore Professor Glasbeek’s analysis of the problem, but they would likely reject out of hand his proposed solutions. For instance, consider Professor Glasbeek’s following proposal:

The characterization of corporations as sovereign individuals with their own agendas is not defensible and should be confronted constantly. Conceptually and materially, they are collectives endowed with disproportionate economic and political powers that benefit the contributors of capital to their coffers. Corporations are instruments designed to satisfy capitalists’ drive for more. Their misbehaviours should be attributed to capitalism as a system and capitalists as people. Anti-capitalist activists and critics should not permit themselves to be distracted by legal proposals to reform corporations or by engaging with movements designed to persuade corporations to be more socially responsible. If, as argued here, capitalism is criminal in nature, it follows that, when they flout ethical and moral norms embedded in law or violate legally mandated standards, corporations are doing what comes naturally to red-blooded human capitalists and what they want their corporations to do. Given the frailty of the legal reasoning that bestows legal personality on an artificial being and that limits fiscal liability and removes legal responsibility from those who hide behind the novel legal person, anti-capitalist activists and critics would do well to argue for the abolition of corporations and hold their controllers’ feet to the fire. An extended and cogent argument to this effect has been made by Steve Tombs and David Whyte in their recent work, The Corporate Criminal.

Conclusion

I know of no social-democratic leftist individual in Toronto who seriously is working towards the abolition of corporations. They consider such talk to be absurd–in practice, although in theory they may pay lip-service to it. They certainly do not teach the decidedly opposite interests of workers and employers. Quite to the contrary. They often paper over such opposition by the use of such phrases as “fair contracts,” “fair collective agreements,” “fair wages,” “decent jobs” and the like.

I invite social reformists or social democrats to engage seriously in creating a movement for the abolition of corporations, in Toronto and elsewhere. Relying ultimately on the legal system to defend us is bound to end up in limited gains and the continued coercion, exploitation and oppression of millions upon millions of workers.

Of course, given my own experiences with social reformers or social democrats, I suspect that they will continue to ignore the systemic real experiences of class oppression, class exploitation and class coercion. In such circumstances, they need to be criticized constantly.

Review of Jane McAlevey’s “A Collective Bargain: Unions, Organizing, and the Fight for Democracy”: Two Steps Backward and One Step Forward, Part Two

This is the continuation of a post that reviews Jane McAlevey’s latest book entitled A Collective Bargain: Unions, Organizing, and the Fight for Democracy. 

In the last post, I showed that Ms. McAlevey exaggerates the extent to which strikes and collective bargaining can offset the power imbalance between the class of employers and the working class. In this post, I will show that Ms. McAlevey’s point of view is definitely social democratic or social reformist.

She writes the following in her book:

There’s nothing neutral about suicide nets; there’s nothing inevitable about creating a greater climate crisis by offshoring jobs so ships bigger than small towns cross oceans, killing the ecosystem and creating a need for more fuel; there’s nothing comforting about creating millions of close-to-slavery working conditions in faraway lands that Americans can’t see when they happily upgrade to the latest phone. We don’t need robots to care for the aging population. We need the rich to pay their taxes. We need unions to level the power of corporations.

This call for corporations to pay taxes–certainly, corporations should be forced to pay more taxes, but the implication here is that if corporations did pay more taxes, there would be a fair system. I will criticize this social-democratic view in another post, where I will criticize the Canadian social-democratic call for corporations to pay their “fair share” of taxes? Corporations need to be taken over by workers if they are to control their own lives since corporations form part of the economic structure that expresses a kind of economy where workers are controlled by their own products rather than the workers controlling their own products.

In the quotation above,there is a further problem that illustrates Ms. McAlevey’s social-democratic approach. She refers to the need for “unions [in order] to level the power of corporations.” How does the existence of unions “level the power of corporations?” To conclude this is to exaggerate the capacity of unions to challenge the employers as a class. The unions in the 1930s did not “level the power of corporations.” Ms. McAlevey provides no evidence that they did. They limited the power of corporations, but it is bullshit to say that unions have or can level the power of corporations. Such a view ignores the power of employers to dictate what to produce, how to produce, when to produce and so forth. I worked in several unionized environments, both private and public, and I failed each time to see how unions even approached the power necessary to “level the power of corporations.

As I showed in my review of Ms. McAlevey,’s  earlier book, No Short Cuts: Prganizing for Power in the New Gilded Age (found in the Publications and Writings section of this blog), Ms. McAlevey claims incorrectly that, when workers organize at the firm level, there is no difference between structural power and the power of agents. She confuses the micro level of organizing with the macro level of the capitalist economy as a whole. In her most recent book, she ignores altogether the difference and merely assumes what she needs to prove: that organized workers at the level of the firm or corporation somehow magically control their own lives and are equal in power to corporations.

Ms. McAlevey’s view concerning unions and their supposed power to level the playing field merely echos Canadian liberal sentiments, such as expressed in the work Reconcilable Differences: New Directions in Canadian Labour Law, by Paul Weiler (1980).

Furthermore, as a number of posts have shown (see for example Management Rights, Part One: Private Sector Collective Agreement, British Columbia), the management rights clause in collective agreements provides management, as the representatives of employers, with wide powers; collective agreements do not question such power but only limit it. Even when a collective agreement does not have an explicit management rights clause, arbitration boards have indicated that there is an implicit management rights clause. Ms. McAlevey conveniently ignores such facts and thereby idealizes the power of unions, the power of collective bargaining and the power of collective agreements.

In another post, I pointed out how, in the context of health and safety, one union representative admitted the limited power of unions (see Confessions of a Union Representative Concerning the Real Power of Employers).

Ms. McAlevey’s confusion of the micro and the macro extends to her exaggerated claims concerning the extent to which workers gain from strikes directed against a particular employer. She often uses the term “big” when referring to wins by workers and unions. From the introduction:

Chapter 1 discusses three such examples of women winning big.

To win big, we have to follow the methods of spending very little time engaging with people who already agree, and devote most of our time to the harder work of helping people who do not agree come to understand who is really to blame for the pain in their lives. Pulling off a big, successful strike means talking to everyone, working through hard conversations, over and over, until everyone agrees. All-out strikes then produce something else desperately needed today: clarity about the two sides of any issue. Big strikes are political education, bigly.

It is certainly an innovation to focus on winning over those who disagree with us–the left often are a clique that simply address themselves. However, this constant reference to winning big hides the fact that even more important and wider successes are considered big wins rather than skirmishes that should lead towards the overthrow of corporate power. Divorced from such a movement, they can hardly be considered “big wins.” Only those who have faith in the legitimacy of the collective bargaining system to produce fair results could use such a term as “big.”

Nowhere does Ms. McAlevey question corporate power as such but assumes its legitimacy.

Just as Ms. McAlevey confuses power at the micro level with power at the macro level in relation to unions, collective bargaining and collective agreements, she confuses the levels of power when it comes to identifying problems related to the environment. She writes:

There’s plenty of money to make a Green New Deal happen. Investigative journalist Christian Parenti has recently pointed out that corporations are currently sitting on $4.8 trillion in cash—a subset of $22.1 trillion they hoard. That money could be used to quickly transition the economy to a robust unionized green economy, one that can reproduce a dignified quality of life for workers of the future and end the destructive jobs-versus-the-environment debate. But to access that money, it takes real power and know-how—the kind of authority that unions in New York still have, along with a few other major states. To rebuild union power elsewhere, the environmental movement will have to stand up and fight alongside them—really fight, not just talk about green jobs. That means actively throwing their support behind workers’ right to strike and actively backing workers. That kind of organizing and the power it builds will be necessary to raise taxes on the rich (versus just talking about it) [my emphasis] and make progress on shifting federal subsidies away from fossil fuels and toward a safe, resilient economy that works for humans and our planet.

Just as the British Labour Party, in its Manifesto It’s Time for Real Change, jumps on the bandwagon of climate change, so too does Ms. McAlevey. The view that climate change will be solved on the continued basis of the existence of a class of employers–a capitalist basis–by only making the rich pay more taxes is typical of social democrats these days (for my criticism of such a view, see The British Labour Party’s 2019 Manifesto: More Social Democracy and More Social Reformism, Part One).

Ms. McAlvey’s social-democratic position finds expression as well in her idealization of other capitalist countries:

There is a third option: the kind of income supports that come with the social democratic policies found throughout much of Western Europe. This would allow greater labor-force participation by both parents, but it would require radical changes to the fabric of our economy. In Sweden, people have generous paid parental leave—two back-to-back years, one for each parent—so that each baby born has a parent as its primary full-time caregiver for the first two years of life. When this parental leave is exhausted, Swedish toddlers enter a nationalized child-care system that is essentially free: paid for with a fairer taxation system that levels the playing field for children’s opportunity and success from birth forward.

The idealization of Sweden and other Scandinavian countries is another ploy used by social democrats to prop up their own reformist tendencies.

Let us look for a moment at Sweden. The consensus between employers and unions started to break down in the 1980s, and accelerated during the 1990s, when there was an economic crisis. (From “Education and Inequality in Sweden: A Literature Review,”
Carl le Grand, Ryszard Szulkin and Michael Tåhlin; in Editors: Rita Asplund and Erling Barth, Education and Wage Inequality in Europe: A Literature Review, 2005, page 355):

However, since the beginning of the 1980s, the consensus around the
solidarity wage policy has been undermined. The national federation of
employers has adopted new policies aiming at wage determination at the
firm level, while the attitudes among the trade unions have been mixed.
This new situation has resulted in a decentralisation of wage negotiations, giving more space for local agreements. Hence, the scope for variation in earnings, both between and within groups, has increased markedly in Sweden during the last decades.

The increase in within-group inequality is connected to two developments
in the Swedish labour market that have important policy implications. First,
the gender wage gap has been stable in the last two decades although the
gender differences in years of experience have diminished markedly. This
lack of improvements in the gender wage differentials is closely related to the
fact that the returns to education have decreased for women in relation to
those for men. Thus, the trend towards increased within-group wage inequality
seems to be to the disadvantage of women in Sweden. …

Second, the relative wages for public sector employees have fallen drastically
in the last decades. This development is closely related to a decrease
in the returns to education for public sector employees in relation to those
for private sector workers. This trend is, of course, related to the first
trend, as women dominate strongly in the public sector. Reasonably, the
main explanation for the rise of earnings inequality between public and
private sector employees is the increasing financial problem of the public
sector, as well as the decentralisation of the wage-setting processes that has
taken place in Sweden since the first half of the 1980s.

Changes in the labour market were followed by changed in education in the 1990s, characterized by a shift in governmental policy towards management by objectives–including education. (From Anne Berg  and Samuel Edquist, 2017, The Capitalist State and the Construction of Civil Society: Public Funding and the Regulation of Popular Education in Sweden, 1870–1991 , page 173):

However, as a consequence of the turmoil surrounding the oil crisis in 1973, the digital revolution, and the rise of finance capitalism and global outsourcing, many classic Swedish industries, such as shipbuilding and clothing manufacturing, started to go out of business. Unemployment rates rose and consumption stagnated. Sweden
managed to hold off the worst consequences of the crisis, but the path towards a change in policy and governance had been set. The reform of 1991 was part of a general shift in government policy from traditional rule by guidelines and directives to management by objectives. It followed a broader trend of reforms inspired by neo-liberalism, which called for decentralisation and marketisation of welfare services: education, health care and social security. The neo-liberal ideology had gathered strength in the 1980s, encompassing all the major political parties including the Social Democrats. The neo-liberal programme was set out to solve the problem of how to manage society and the bureaucratic system of government while saving resources. The market, not government, was to handle issues such as social security and education.13 In 1988, there was a decision in principle to implement management by objectives and results throughout the Swedish government apparatus. Soon, such a reform was decided on for the compulsory and upper secondary school system, combined with a move to decentralisation, both of which were to be particularly important for the subsequent changes in popular education policy.14 Interestingly, this policy change, mainly intended to make public administration more efficient, was also suggested for the administration of popular
education and its grant system. Goal-oriented management was seen at the government level as a way of safeguarding and strengthening the independence of popular education.

According to management by objectives, education can be taught according to discrete objectives that are then somehow magically integrated. I will critique in a future post management by objectives (outcome-based education, or OBE) via a critique of several articles of a former professor of mine (Robert Renaud) concerning Bloom’s taxonomy, which forms a ground for outcome-based education. (From Qin Liu (2015), Outcomes Based Education Initiatives in Ontario Postsecondary Education: Case Studies, page 7):

OBE’s precursors can be found in the earlier objectives movement, as represented by Tyler’s (1949) Basic Principles of Curriculum and Design, Bloom’s (1956) Taxonomy of Educational Objectives, and Mager’s 1962) Preparing Instructional Objectives, as well as in mastery learning (Block, 1971; Gusky, 1985), criterionbased assessment (Masters & Evans, 1986) and competency-based education (France, 1978). From these sources, it becomes apparent that OBE stemmed from and is rooted in efforts to address pedagogical concerns.

The idea that Sweden “levels the playing field for children’s opportunity and success from birth forward” is a myth.

Furthermore, I will, in a future post, criticize the idea that there is such a thing as “a fairer taxation system that levels the playing field for children’s opportunity and success from birth forward” in relation to schools. This idea of “leveling the playing field” is pure rhetoric, and presents a completely false picture of the decidedly uneven playing field characteristic of a society dominated by a class of employers–whether unionized or not.

I will also further argue that even if equal opportunity did exist, it would not change the hierarchical nature of the division of labour and the class structure since competition between workers, inheritance laws and the hierarchical ownership of the conditions of lives would be recreated as workers competed (with some losing and others gaining in the process–thereby merely mirroring the present class structure).

I started out, in the first post, by quoting Sam Gindin, with Mr. Gindin pointing out how popular Ms. McAlevey is these days. Her popularity is undoubtedly due in part to her own innovations in organizing. It is, however, also due to her exaggerated claims concerning the efficacy of her own approach to collective bargaining in eliminating power, wealth and income differentials between the class of employers and the working class.

In the next post, I will refer to how the president of the Canadian Labour Congress (CLC)–a social-democratic organization of unions federated to it and representing more than three millions Canadian workers– idealizes collective bargaining–like Ms. McAlevey.