Taking Back the Workers' Law: How to Fight the Assault on Labor Rights (review)

A savvy litigation strategy to "take back" the National Labor Relations Act must become a core part of labor's strategic arsenal if labor revitalization is to succeed, argues Ellen Dannin in her new book. A former NLRB attorney and, currently a professor at Wayne State University Law School, Dannin is a staunch defender of the National Labor Relations Act as a fundamentally sound vehicle for advancing labor rights. She rejects the argument that the core problem with labor law at this historic juncture is either the constitutional foundation of the labor act, the statutory text, or the structure of the labor board. Rather, she asserts, the problem arises from the federal judiciary's hijacking of the NLRA's sound principles and pro-worker statutory prescriptions and the improper injection of outmoded common law, master-servant principles into judges' interpretations of the NLRA. As a result, a "judicially amended" labor act is now diametrically opposed to the NLRA's statutory edicts and core purpose. Dannin maintains that employing such a "take back" strategy can—incrementally and over time—reverse decades of anti-labor decisions by the federal judiciary.

Dannin has little use for labor leaders who are now heaping scorn on the labor act and rejecting the NLRB as the bosses' tool. By attacking the NLRB and attempting an end-run around it, they are not only going after the "wrong target," but are actually aiding the employers' campaign to disempower the NLRB. While identifying with labor's frustration at the current anti-labor legal climate, she nonetheless counsels the labor movement to stop attacking and skirting the NLRB. For instance, she expresses serious reservations about the long-term consequences of using card check agreements to avoid the bureaucratic machinations and employer assaults on unions that typically accompany Board-sanctioned elections. Indeed, the Board must be re-legitimized because "in the long run, government-run board elections are best for unions and workers."

There are no quick fixes, says Dannin. She counsels patience: repealing the "judicial amendments" to the Act requires that labor embrace a "long view" of legal reform—one that recognizes what is, in Dannin's view, the inevitable incrementalism by which labor law advancement occurs. There is an homage to the NAACP's Legal Defense Fund's two-decade campaign to overturn Jim Crow segregation, but the analysis offers few particulars on how this translates to the labor front; the NAACP discussion covers only one and a half pages. Assessing the strategic relationship between civil rights litigation and the mass civil rights movement would do much to illuminate how Dannin's vision could be integrated into a larger pro-labor agenda. Unfortunately, there is no follow-through on this.

The author's extensive experience and acumen is particularly showcased in the core chapters that address the relative absence of creative lawyering in much labor litigation. Here, legal themes and arguments are presented as ammunition for labor attorneys who seek to reject a routine approach in litigating NLRB cases. She explains why policy-driven legal arguments—often ignored by overly-pragmatic counsel—ultimately matter and suggests ways to use them to win cases. Dannin is also highly effective when offering labor advocates nuts-and-bolts explanations of how to maximize the chances for victory when intervening on behalf of union clients in Board proceedings. She explains why a creative development of the evidentiary record at trial is foundational if one is out to convince the appellate courts to reverse bad legal decisions that ignore core pro-worker principles embedded in the NLRA. As I read this portion of the book, I thought that a former Board attorney like Dannin could offer much insight into why the NLRB's own efforts to defend the labor act are so meager. Dannin might also shed light on the role played in the litigation process by the highly politicized and now vociferously pro...