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Democracy and Domination in the Law of Workplace Cooperation: from Bureaucratic to Flexible Production Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 1994 Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible Production Mark Barenberg Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Labor and Employment Law Commons Recommended Citation Mark Barenberg, Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible Production, 94 COLUM. L. REV 753 (1994). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. COLUMBIA LAW REVIEW VOL. 94 APRIL 1994 NO. 3 DEMOCRACY AND DOMINATION IN THE LAW OF WORKPLACE COOPERATION: FROM BUREAUCRATIC TO FLEXIBLE PRODUCTION Mark Barenberg* ABRIDGED TABLE OF CONTENTS I. INTRODUCTION ............................................. 758 II. CONCEPTIONS OF DOMINATION AND HEGEMONY IN THE APPLICATION OF SECTION 8(a)(2) TO CLASSIC COMPANY UNIONISM .................................................. 770 A. Domination Proper: The Company Union as an Infrastructure of Illegitimate Coercion .................. 777 B. Domination as Distorted Communication ............... 793 C. Hegemonic Consciousness .............................. 801 D. Domination Under Section 8(a) (2): A Case of Legal Fiction About Subject Formation? ...................... 824 III. NONHEGEMONIC AND COUNTERHEGEMONIC ASPECTS OF COMPANY UNIONISM: SOME PLAUSIBLE CANDIDATES FROM THE THEORY OF IDEOLOGY ....................................... 825 A. Pure Reformism ........................................ 827 B. Egalitarian Communication and Trust Across Power Asym m etries ........................................... 829 C. The Oz Effect: Indifference and Skepticism ............. 829 D. The Tocqueville Effects: Spurring Collective Action .... 831 E. Backlash Effects: Indignation and Ressentiment ........... 835 IV. THE HISTORICAL COMPLEXITY OF REFORM, DOMINATION, AND WORKER SUBJECTIVITY UNDER COMPANY UNIONISM ........... 837 A. Some Interpretive Thickets ............................. 838 B. Workplace Micropolitics and Local Contingencies ....... 842 C. Some Broader Historical Viewpoints and Trends ........ 845 D. The "Core" Company Unions .......................... 848 E. The "Vulnerable" Company Unions ..................... 862 F. Some Historical and Theoretical Regularities Relevant to the New Cooperative Workplaces ....................... 870 * Associate Professor of Law, Columbia Law School. For their valuable comments on the entire manuscript, I thank Vince Blasi, Terry Fisher, Alan Hyde, Deborah Malamud, Henry Monaghan, Subha Narasimhan, Clyde Summers, and Paul Weiler. Special thanks to Chuck Sabel for reading several drafts and generously sharing time, ideas, and knowledge. Kerry Candaele, Steve Kang, and Howard Fischer provided outstanding research assistance. I am very grateful to Columbia Law School alumnae/i for financial support. COLUMBIA LAW REVIEW [Vol. 94:753 V. Flx-xmI WORK ORGANIzATIoNs IN THE 1990s: NEW PoSSIBILITIES FOR PRODUCTVITY, DEMOCRACY, AND DOMINATION ................................................ 879 A. The Economics and Sociology of New Collaborative Work Relations ......................................... 881 B. The Promise of Self-Managing Teams ................... 890 C. The Perils of the Team Workplace: New Processes of Dom ination ............................................ 904 D. New Forms of Cultural Contest and Resistance in the Team Organization ... ................................. 918 E. The Emerging Consensus: Effective Team Participation and Strategic Labor Representation are Mutually Reinforcing ............................................ 921 F. Sum m ary ............................................... 926 VI. THE PROMISE AND LIMITATIONS OF LEADING PROPOSALS FOR LABOR LAw REFORM ......................................... 928 A. The Legally Constructed Context of Workers' Collective Communication and Action ............................ 930 B. Leading Legal Reform Strategies ....................... 936 C. Why Leading Reform Proposals Are Unlikely to Achieve Their Goals Fully ...................................... 940 VII. A LABOR LAw REGIME FOR DELIBERATIVE DEMOCRACY AND FOR HIGH PERFORMANCE ENTERPRISES AND NETWORS ............ 946 A. The Basic Principles and Purposes of Deeper Reform ... 946 B. Institutional Precursors: Imaginary and Real ............ 949 C. An Outline of Deeper Labor Reform ................... 956 1994] DEMOCRACY AND DOMINATION IN LABOR LAW 755 UNABRmc TABLE OF CONTENtS I. INTRODUCTION ........................................................ 758 II. CONCEPTIONS OF DOMINATION AND HEGEMONY IN THE APPLICATION OF SECTION 8 (a) (2) TO CLAsSIc COMPANY UNIONISM .................................. 770 A. Domination Proper. The Company Union as an Infrastructure of Illegitimate Coercion .............................................. 777 1. The Idea of StructuralCoercion .................................. 777 2. The Idea of Structural Coercion................................... 778 3. Company Union Practices Constituting Structural Coercion ......... 779 a. Trasformismo: Incentives to Realign the Leadership Cadre ........ 779 b. Infrastructure of Surveillance and Illegitimate Incentives by Peers .................................................... 786 c. Discriminatory Organizational Funding, Recognition, and Bargaining Concessions ...................................... 789 B. Domination as Distorted Communication ............................ 793 1. The Ideal of Egalitarian Deliberation ............................ 793 2. Company Union Practices That Constitute Distorted Communication ................................................ 798 a. Bans on Employee Meetings .................................. 798 b. Managerial Participation in Employee Deliberations ............. 799 c. Trasformismo, Again .......................................... 800 C. Hegemonic Consciousness .......................................... 801 1. Hegemony as a Consequentialist Theory of Ideology ............... 801 2. Hegemonic Company Union Practices ............................ 802 a. Structural and Performative Dissemblance ...................... 804 b. False Juridico-Political Legitimation ........................... 806 c. Universalization ............................................. 808 d. Naturalization .............................................. 813 e. The Psychodynamics of Authority and Deference ............... 814 f. Expurgation of the Other. Emotional Splitting and Dichotomous Mapping .................................................... 818 g. Neutralization and Reference-Group Refraining ................. 821 D. Domination Under Section 8(a) (2): A Case of Legal Fiction About Subject-Formation ................................................. 824 III. NONHEGEMONIC AND COUNTERHEGEMONIc ASPECTS OF COMPANY UNIONISM: SOME PLAuSIBLE CANDIDATES FROM THE THEORY OF IDEOLOGY ............... 825 A. Pure Reformism ................................................... 827 B. Egalitarian Communication and Trust Across Power Asymmetries ....... 829 C. The Oz Effect: Indifference and Skepticism .......................... 829 D. The Tocqueville Effects: Spurring Collective Action ................... 831 1. Whetting the Appetite .......................................... 832 2. Group Articulation ............................................. 832 3. Runaway Legitimation .......................................... 833 4. Aiding Collective Action ........................................ 834 E. Backlash Effects: Indignation and Ressentiment ........................ 835 IV. THE HIsroRIcAL. COMPLExrrY OF REFORM, DOMINATION, AND WORKER SuBJECTIvrry UNDER COMPANY UNIONISM ................................... 837 A. Some Interpretive Thickets ......................................... 838 B. Workplace Micropolitics and Local Contingencies ..................... 842 C. Some Broader Historical Viewpoints and Trends ...................... 845 D. The "Core" Company Unions....................................... 848 1. Pure Reformism ................................................ 849 2. Contested Trust ................................................ 851 3. Hegemonic Processes to Bolster Insufficient Reform ................ 857 4. From Contested Trust to Structural Coercion ...................... 860 COLUMBIA LAW REVIEW [Vol. 94:753 E. The "Vulnerable" Company Unions .................................. 862 F. Some Historical and Theoretical Regularities Relevant to the New Cooperative Workplaces ............................................ 870 1. The Fluidity of Workers' Subjective Experience .................... 870 2. Company Unions and Worker Subjectivity: Some General Patterns .. 873 3. Manipulated Representation and the Failure of Naturalization ....... 874 V. FL.ExIBLE WORK ORGAN1ZATIONS IN THE 1990s: NEW PossnuLrtIES FOR PRODUCnVIy, DEMOcRAcy, AND DOMINATION ............................. 879 A. The Economics and Sociology of New Collaborative Work Relations ..... 881 1. The Economic Context of the Emerging Flexible Organization ...... 881 2. From Mass-Production Work Groups to Flexible Teams ............. 884 B. The Promise of Self-Managing
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