Inside the Black Box

These days, much of politics and values in the United States gets filtered through the views of the right-to-life movement. But when it comes to the right to have a decent life, too many of our leaders are deaf and blind to taking action on the desperate conditions of so many in this country. Among those pressing for change, Cornell University’s James A. Gross has been a strong and consistent voice for the “ought to be” of work.

Starting roughly a decade ago, Gross began exhorting us to bring worker rights under the umbrella of human rights. His newest book, A Shameful Business: The Case for Human Rights in the American Workplace, is the fruit of this vision. There is no question which side he is on. The author’s voice is passionately present in every line of every page. The book covers issues of race and human rights, the ascension of market economic values over worker rights, the clash of property and labor rights, and safety and health issues in the workplace. This book is a no-holds-barred indictment of economic laissez-faire theory, its underpinnings, and its effects. The title of Gross’s concluding chapter (“Crimes against Humanity: Concluding Thoughts about Choosing Human Rights”) best captures his position.

Gross covers intellectual and legal developments that most of us have forgotten or never learned. For example, in his chapter on the triumph of the market economy, Gross describes how law and power evolved during the nineteenth and twentieth centuries to support the structure of employment in the U.S. That evolution, under the influence of capitalism, created a system in which the master-and-servant doctrine enforced inequality, while claiming that employers and employees had reciprocal rights and obligations. Here, and throughout the book, Gross shows how law has been used to enforce the subordination of workers. Partnership law gives employers the power to become a collective entity, and corporation law gives employers eternal life, simply by filing legal documents. While employees can also become a collective entity, that process is far riskier and more difficult than simply filing legal documents, and its existence is under constant assault.

Gross puts this into an historical perspective, noting that “entrepreneurs, characterized later by muckrakers as robber barons, needed to reconcile the values they preached of the free individual competing in the atomistic free market with the reality of concentrated corporate economic and political power” (p. 68). He describes this condition as Darwinian power that has used Christian principles to justify itself, as in Andrew Carnegie’s 1889 “The Gospel of Wealth.” “That was accomplished by combining Darwinian survival of the fittest theories and Christian principles into a justification of wealth and power. Darwin and Jesus were woven together and, in turn, interpreted through a combination of laws: the Scientific Law of Competition and the divinely ordained Law of the accumulation of Wealth” (p. 68). Gross questions why employers are allowed to have inherent rights, while workers have none. Thus, although we talk about bargaining agreements, the result, he says, can never be a bargain between equals.

Gross reminds us that the National Labor Relations Act (NLR A)—which was enacted to promote employees’ collective strength and achieve equality of bargaining power—was perceived as a serious threat to management. However, conservative judges tried to strangle the new legislation at its birth by developing doctrines that undercut its clear language through decisions that permitted captive-audience speeches, limited the right to bargain, and limited remedies in cases such as Darlington, which allowed employers to close part of their businesses to retaliate against employees for choosing union representation—and yet suffer no meaningful sanction.

Gross traces the effects of court decisions that reversed National Labor Relations Board (NLR B) decisions that had enforced rights protected by the NLR A. These chapters provide details of legal developments that may have slipped from most of our memories if, indeed, we ever learned them. Gross ends his case analysis in the 1980s and...