THE LAW AS A CONSTITUTIVE FORCE FOR CHANGE, PART
II: THE IMPACT OF THE NATIONAL LABOR RELATIONS ACT
ON THE U.S. LABOR MOVEMENT.
Author: Ballam, Deborah A. Source: American Business Law Journal v. 32 no3 (1995) p. 447-79 ISSN: 00027766 Number: BBPI95037193 Copyright: The magazine publisher is the copyright holder of this article and it is
reproduced with permission. Further reproduction of this article in violation of the copyright is prohibited.
THE LAW AS A CONSTITUTIVE FORCE FOR CHANGE, PART
II: THE IMPACT OF THE NATIONAL LABOR RELATIONS ACT ON
THE U.S. LABOR MOVEMENT. .............................................................................................................................1
INTRODUCTION ...............................................................................................................................................1
THE LABOR LAW FRAMEWORK FOR COLLECTIVE
BARGAINING .............................................................................................................................................................4
THE IMPACT OF LABOR LAW ON THE U.S. LABOR
MOVEMENT: THE SCHOLARLY ASSESSMENTINITIAL
ASSESSMENTS ..........................................................................................................................................................5
ASSESSMENTS OF LEGAL SCHOLARS ......................................................................................................6
ASSESSMENTS OF HISTORIANS................................................................................................................ 14
CONCLUSION ................................................................................................................................................. 21
ADDED MATERIAL. ...................................................................................................................................... 25
INTRODUCTION
In a Commentary that appeared previously in this Journal, I explored
the impact of the nineteenth century judiciary on shaping the unique
character of the U.S. labor movement.(FN1) The theme of that
Commentary was that the hostility evinced by the judiciary towards
organized labor forced the mainstream labor movement to drop its
demands for large-scale societal and economic reforms, and to limit its
demands instead to the "break-and-butter" issues of better wages, hours
and working conditions for laborers. The conclusion of that piece was that
law can be a constitutive force for change; that is, law can shape the course
of social and economic developments. That Commentary also raised critical
1
issues regarding reform movements in general. Specifically, the nineteenth
century experience of organized labor raised the question of whether, when
reform movements "try to work within the system, on the system's own
terms, are they doomed to co-optation and hence failure?"(FN2).
The purpose of this Commentary is to continue the examination of
these issues within the context of the twentieth century. The National
Labor Relations Act (NLRA)(FN3) was the single most important legal
development affecting labor in this century. The NLRA, informally known
as the Wagner Act, was signed into law by President Franklin D. Roosevelt
on July 5, 1935. The following day's edition of The New York Times
carried a front page story on the signing.(FN4) The Times quoted the
president as stating that the "high purpose of this act" is "a better relation
between labor and management," and "an important step toward the
achievement of just and peaceful labor relations in industry."(FN5) William
Green, the President of the American Federation of Labor - an organization
which had solidly supported the Wagner Act - was quoted as describing the
Act as "the Magna Carta of labor." (FN6) Green's assessment apparently
was shared, and feared, by many in the business community who were
convinced of the radical potential of the Act, and who had lobbied
vigorously against its passage.(FN7).
The AFL's support for the Wagner Act represented an about-face in
that organization's approach to achieving its goals. Samuel Gompers, the
AFL's first president and the most influential person in the development of
the mainstream U.S. labor movement, had espoused the policy of
"voluntarism," a policy followed by the AFL through the first three decades
of the twentieth century.(FN8) Voluntarism is an approach to labormanagement relations in which that relationship is determined privately by
labor and management through the bargaining process, and in which the
government plays no role. Labor's experiences with government repression
and judicial hostility to labor's political agenda in the late nineteenth century
convinced Gompers that labor would never achieve its goals if it had to rely
on government assistance because the government was biased in favor of,
and indeed controlled by, interests favorable to management. Rather,
Gompers believed, labor could be successful only by relying on direct
economic action where the respective economic power of labor and
management alone would determine the outcome.(FN9).
From the turn of the century to World War I, Gompers' voluntarism
seemed to be working. Labor's membership - numbering five million by the
beginning of the war - and political influence grew during this time.(FN10)
During the war itself labor seemed to have been accepted by the
government and by some elements of the business community as a partner,
albeit a junior one, in the war effort.(FN11) At war's end, however, the
partnership ended and business, unrestrained by the government, began a
vigorous anti-union campaign. In addition to the onslaught from business,
labor suffered further set-backs because of the post-war recession and
because of a hostile judiciary which increased its use of injunctions against
2
union activity to an all-time high.(FN12) By the early 1930s, union
membership had dropped to three million. The AFL, now headed by
William Green, feared for the continued existence of organized labor, and
now became convinced that the government must play a role in labormanagement relations. Many labor leaders viewed government intervention
as necessary, at least so far as providing legal protection for union
organizing and for forcing employers to deal with unions.(FN13) Thus, the
AFL deviated from its voluntarist approach and supported the Wagner Act.
These labor leaders' hope, of course, was that with government
protection for collective action and collective bargaining, labor would grow
into a force equal in strength to the business community, thus allowing
labor to be a true equal partner with business in a new industrial democracy.
During the first decade after passage of the Wagner Act, this hope appeared
on the way to becoming reality. One year after the passage of the Wagner
Act organized labor numbered slightly over four million; by the bombing of
Pearl Harbor it numbered nine million and by the end of the war it
numbered almost fifteen million, approximately a third of the nonagricultural labor force.(FN14) Union growth continued after the war years,
reaching its peak in 1953-54 with slightly under eighteen million members
or thirty-seven percent of the non-agricultural work force.(FN15) Since that
time labor membership has steadily dwindled; by 1963 the percent was
approximately twenty-nine, by 1973 it was approximately twenty-six and by
1983 it was approximately twenty.(FN16) By 1991, the percent had dropped
to sixteen, significantly less than one-half of what it was at its peak in 195354.(FN17).
This decline in labor's fortunes has prompted much attention from
scholars. Political scientist Michael Goldfield categorized the scholarly
explanations for labor's decline into three main groups.(FN18) The first is
what Goldfield described as the "sociological explanation."(FN19) This
explanation, which Goldfield noted is the most widely adhered to, focuses
on structural changes in the work force arising from population movement
from the rustbelt to the sunbelt; the decline of blue-collar jobs and the
increase in jobs in the service industries; changes in the participants in the
work force based on gender, race, age and education; and the increasing
tendency of industry to build new plants on a smaller scale.(FN20) The
second category is what Goldfield described as the "cyclical
explanations."(FN21) These explanations focus on "environmental factors"
that have had an impact on union strength during the last four decades such
as business cycles, unemployment cycles, the domination of the presidency
by the Republican party, and the decline in worker militancy.(FN22)
Goldfield labeled the third category as "political explanations."(FN23) This
category focuses on the decreasing interest of workers in unions, the
growing trend of employers to engage in anti-labor offensives,
incompetency of the unions themselves, and labor laws and public policy
which have weakened organized labor.(FN24).
3
Seymour Martin Lipset also categorized the explanations for the
decline of U.S. labor.(FN25) Lipset shares Goldstein's basic categorizations
of how scholars have explained the decline of unions in the U.S., including
the importance of the legal framework as determining the environment in
which unions operate.(FN26).
This article focuses on the scholarly literature that has developed
among legal scholars and historians around one of the factors both
Goldfield and Lipset included as a factor offered by scholars as an
explanation for the decline of the U.S. labor movement: the impact of labor
laws, and particularly the framework established by the NLRA (composed
of the Wagner Act and the Taft-Hartley Act, and the various amendments
to both) on the decline of U.S. organized labor. First, the article will
describe the framework established by the National Labor Relations Act.
Then, it will discuss the theories of both legal scholars and historians who
have examined the impact that the framework established by that Act has
had on the U.S. labor movement.
THE LABOR LAW FRAMEWORK FOR COLLECTIVE
BARGAINING
Section 1 of the NLRA contains a statement of findings and policies
which Congress used to justify the adoption of the Act.(FN27) Two critical
points stand out with respect to this section. First, Congress was attempting
to address the problems created by industrial strife by creating a framework
in which industrial disputes could be resolved peacefully under government
auspices. Second, Congress identified the inequality of bargaining power
"between employees who do not possess full freedom of association or
actual liberty of contract, and employers who are organized in the corporate
or other forms of ownership association" as causing two problems: it was a
major cause of the industrial unrest and it aggravated "recurrent business
depressions by depressing wage rates and the purchasing power of wage
earners in industry."(FN28) Thus, it appears that Congress' major goal was
to encourage industrial peace in order to maintain a stable economy.
Congress hoped to accomplish this by creating equality of bargaining power
between capital and labor.
Section 7 specified the rights of workers under the Act. This section
guaranteed to workers the right to organize in order to bargain collectively,
as well as the right to "engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection."(FN29) Section 8
was designed to protect worker rights from employer interference by
prohibiting as unfair labor practices certain employer activities. For
example, section 8 prohibited interference with the exercise of section 7
rights, employer controlled unions and refusal to bargain with the
employees' chosen representative.(FN30) Section 3 created the National
Labor Relations Board as the administrative agency authorized to oversee
the implementation of the Act.(FN31).
4
The NLRA was amended in 1947 with the adoption of the TaftHartley Act.(FN32) Taft-Hartley added a list of restrictions on workers'
rights. It created unfair labor practice prohibitions that applied to labor,
banned the closed shop and allowed individual states to ban the union
shop, limited picketing rights, prohibited secondary boycotts, prohibited
supervisory employees from participating in unions, and placed some
limitations on the right to strike where the president and Congress deemed
such a strike a threat to national health and safety. It also required union
officers to file anti-communist affidavits before their unions could receive
the protection of the NLRA. Taft-Hartley was an anti-union, pro-business
measure. The National Association of Manufacturers and other elements of
the business community strongly supported it, while labor forces lobbied
vigorously against it.(FN33).
The NLRA was amended again in 1959 with the Landrum-Griffin
Act.(FN34) However, this Act was aimed at curbing perceived mob
influences in the unions and at providing rights for union members against
the unions themselves. Thus, it did not significantly affect the basic
framework of collective bargaining.
THE IMPACT OF LABOR LAW ON THE U.S. LABOR
MOVEMENT: THE SCHOLARLY ASSESSME NTINITIAL
ASSESSMENTS
The initial historical assessment of the impact of the NLRA on the
labor movement is represented by the view of William E. Leuchtenburg. In
a book on the New Deal published in 1963 Leuchtenburg described the
Wagner Act as a "radical" law which was "one of the most drastic legislative
innovations of the decade" because it "threw the weight of the government
behind the right of labor to bargain collectively, and compelled employers
to accede peacefully to the unionization of their plants" while imposing "no
reciprocal obligations of any kind on the unions."(FN35) Irving Bernstein
also viewed the NLRA as having had a positive impact on the U.S. labor
movement. Bernstein concluded that labor made "sweeping legal gains" in
the 1930s.(FN36) The most significant of these gains, Bernstein believed,
was the establishment of grievance procedures which required employers to
prove just cause for discharging or disciplining workers.(FN37) Of course,
in the context of the times in which Leuchtenburg and Bernstein wrote,
unions were still viewed as a powerful political force and, although union
membership had begun to decline, scholars were not yet searching for
explanations for labor's decline.
In the mid-1960s, New Left historians began providing a revisionist
view of the New Deal and indeed of all twentieth century reform
movements. Ronald Radosh, James Weinstein and Gabriel Kolko presented
an interpretation that focused on the role of big business in shaping the
nature of reform.(FN38) Although reform efforts often arose from those
who believed they were oppressed by the rise of the new corporate order,
5
New Leftists argued that corporate interests succeeded in harnessing these
reform efforts and channeling them to serve their own ends. Thus, the
corporate liberal order that characterizes the twentieth century U.S. "was
formulated and developed under the aegis and supervision of those who
then, as now, enjoyed ideological and political hegemony in the United
States: the more sophisticated leaders of America's largest corporations and
financial institutions."(FN39) The goal of these corporate leaders was to
shape the liberal corporate order to serve business needs of "stabilization,
rationalization, and continued expansion of thepolitical economy."(FN40)
For New Leftist historians, then, the NLRA was the result of a conscious
plan by corporate leaders to shape labor law so as to eliminate worker
radicalism and disruption by channeling all worker discontent into a
government-supervised dispute resolution process.(FN41) Recent
scholarship has discredited the corporate liberal interpretation, particularly
of the Wagner Act. Substantial evidence exists to show that in fact many
leaders of big business were staunch opponents of the Wagner Act and
devoted substantial time and resources in a futile attempt to defeat
it.(FN42).
ASSESSMENTS OF LEGAL SCHOLARS
In the late 1970s, by which time the decline of U.S. labor was evident,
legal scholars began examining the impact of labor law on the decline. In
1978 law professor Karl E. Klare published what has come to be the most
widely cited work by a legal scholar on the impact of the Wagner Act on the
labor movement: Judicial Deradicalization of the Wagner Act and the
Origins of Modern Legal Consciousness, 1937-1941.(FN43) Since 1978,
Klare has published three other articles that further explain and clarify his
views.(FN44).
Klare is associated with the critical legal studies movement. Thus, a
description of the philosophy of this movement is essential to
understanding Klare's analysis of modern labor law. The underlying premise
of critical legal scholarship (CLS) is that "law is politics."(FN45) CLS rejects
formalism, or the view that legal results are simply the result of the
application of legal reasoning based on objective, value-free legal
principles.(FN46) Rather, the law provides a variety of rationalizations from
which judges can choose and their choices are shaped by their economic,
social and political values.(FN47) However, CLS also rejects
instrumentalism, or the view that the law is intentionally and consciously
shaped to serve certain economic, social or political interests. Rather, the
primary force shaping the law is what Karl Klare termed "legal
consciousness" which he defined as the judges' world view.(FN48) Because
judges' world views are affected by the society around them, the law is
shaped by society. However, because judges are individual beings, they also
shape the law. Judges shape the law because the law presents to them
"endless conflicts and choices of a moral and political nature" which they
are forced to decide.(FN49) Thus, the law constitutes society as well as
6
being constituted by society.(FN50) CLS also contends that one of the law's
most important functions is the "legitimation function."(FN51) Because
many people perceive the law as a neutral, objective force, it serves to
legitimate the existing social, economic and political order so as to protect
that dominant order from challenges.(FN52) Thus, law is politics.
Klare's underlying premise in his analysis of modern labor law was that
"liberal collective, bargaining law is itself a form of political domination" of
labor.(FN53) In Klare's view, collective bargaining law as developed out of
the NLRA serves two major goals. It seeks to incorporate the labor
movement "into the mainstream contours of pressure-group politics," and
it seeks to "institutionalize, regulate and thereby dampen industrial
conflict."(FN54) Both of these goals support the ultimate goal of preserving
industrial peace so as to maximize the efficient operation of the work
place.(FN55) The grievance arbitration system is the critical tool used to
accomplish these goals. It channels worker discontent into an
institutionalized, bureaucratic process that takes place away from the shop
floor, hence eliminating the chance that disputes will interrupt
production.(FN56) While Klare acknowledged that when the Wagner Act
was passed it had substantial radical potential, he argued that the
subsequent Supreme Court decisions interpreting the Act eliminated that
radical potential by "systematically" fashioning the Act to serve the goals of
management in the interests of industrial peace.(FN57) The Court
conducted its systematic fashioning by making choices among the conflicts
presented to it as the Wagner Act was implemented. And, the choices the
judges made were determined by their world view. Klare provided a detailed
examination of the Supreme Court's role in this process in his article on the
judicial deradicalization of the Wagner Act, an article that he described as
"an intellectual history of the Supreme Court's Wagner Act cases" from
1937 to 1941.(FN58).
Klare contended that an examination of the language and legislative
history of the Wagner Act reveals that it is not entirely clear what goals
Congress hoped to achieve with the Act. However, Klare argued that
reasonable minds could find evidence of six basic goals. First, one could
reasonably conclude that Congress hoped to achieve industrial peace.
Second, Congress hoped to achieve the first goal by providing a
government-supervised framework for collective bargaining. Third, in order
to make collective bargaining operate properly Congress sought to create
equality of bargaining power between capital and labor. Fourth, it sought to
guarantee to workers true freedom of choice, protected from employer
pressure, in organizing collectively and in choosing their own bargaining
representatives. Fifth, it sought to address the problems presented to our
consumer economy by the maldistribution of wealth. Congress hoped that
collective bargaining would result in an increase of the wages and hence the
purchasing power of workers, thereby preventing future depressions. Sixth,
Congress sought to promote industrial democracy, meaning introducing
participatory democracy into the work place.(FN59).
7
Klare concluded that when one examines these six goals, the radical
potential that the Wagner Act had is apparent. Indeed, Klare described the
Wagner Act as "perhaps the most radical piece of legislation ever enacted
by the United States Congress."(FN60) However, because the language of
the text itself was somewhat indeterminate, the judiciary, and in particular
the U.S. Supreme Court, was forced to develop its precise meaning through
statutory interpretation. Klare's thesis was that in interpreting the Wagner
Act the Supreme Court rulings had the effect of protecting and promoting
those potential goals of the Act that promoted liberal capitalism - industrial
peace, collective bargaining, and worker choice of bargaining
representatives - and "jettisoned" those potential goals that were most
threatening to the established order - redistribution of wealth, equality of
bargaining power and industrial democracy.(FN61) And, Klare argued, the
Court's approach was determined by the justice's prevailing world view, one
that promoted the values of liberal capitalism and not one that promoted
the radical values of worker participation and redistribution of wealth.
The Supreme Court decisions fashioning its interpretations of the
NLRA to support the existing order came in three main areas. First, the
Court interpreted the Act as requiring the National Labor Relations Board
and the courts to police only the procedural, but not the substantive,
fairness of the contracts arrived at between management and labor.(FN62)
Thus, the state's role was simply to provide the framework for collective
bargaining, but not to intercede into the substance of the contract's
contents or to ensure that the goals of redistribution of wealth, equality of
bargaining power and industrial democracy were incorporated into the
contract terms.
Second, the Court determined that industrial peace was one of the
primary goals of the Act. And, the Court determined, industrial peace
elevated public interest above the rights of either management or labor.
However, industrial peace supported the goal of management which was
continuous, efficient operation of the work place so as to maximize profits,
while it did not necessarily promote the interests of workers who needed to
interrupt that industrial peace in order to assert their bargaining
power.(FN63).
Third, the Court interpreted the Act so as to limit many types of
"worker self-activity" that were the source of labor's strength, but that
presented a grave threat to industrial peace. For example, the Court
prohibited the sit-down strike, it permitted employers permanently to
replace economic strikers, and it withdrew NLRA protection for certain
types of strikes. The limitation of these activities drained labor of much of
its strength, strength necessary if it were to truly have equal bargaining
power with management.(FN64).
The Court, then, faced with alternative choices on how to interpret the
Wagner Act, made political choices that were shaped by the justices' world
views which included their "assumptions, hidden and overt, about work,
8
organization, and the nature and function of law; their political values; their
sense of industrial justice."(FN65) The net effect of these rulings, Klare
concluded, was to deradicalize the potential of the Wagner Act and to
institutionalize a collective bargaining system, with grievance arbitration one
of its critical components, that was consistent with liberal capitalism.
Three years after the publication of Klare's "Judicial Deradicalization",
legal scholar Katherine Van Wezel Stone picked up where Klare left off and
published a critical legal analysis of the operation of the NLRA for the
post-war years.(FN66) Stone, like Klare, argued that the Wagner Act could
have been interpreted so as to confer substantive rights on workers.(FN67)
Further, Stone, like Klare, argued that the Supreme Court interpretations
defined the nature and meaning of modern labor law. Finally, like Klare,
Stone argued that the Court's world view shaped those interpretations.
However, unlike Klare, Stone more precisely defined the world view that
she believed guided the Court. The Court, Stone argued, fashioned its
interpretations based on the "industrial pluralism" model.(FN68) Industrial
pluralism as described by Stone is a "view that collective bargaining is selfgovernment by management and labor: management and labor are
considered to be equal parties who jointly determine the conditions of the
sale of labor power."(FN69) Their joint determination is reduced to the
collective bargaining agreement which is, to the industrial pluralist, the
constitution for the work place. It determines the rules that govern labor
and management. The Court adopted the industrial pluralist model, Stone
argued, because it was heavily influenced by legal theorists and labor
economists such as Archibald Cox, Arthur Goldberg, and Harry Shulman
who supported the industrial pluralism model.(FN70) Under the industrial
pluralist model, the NLRA conferred only procedural rights, but no
substantive rights on workers. Thus, Stone concluded that the Act has been
interpreted as merely a procedural framework that is used to maintain
industrial peace.(FN71).
Stone's thesis is that the industrial pluralist view, which shaped
Supreme Court interpretations of the NLRA, "is based upon a false
assumption: the assumption that management and labor have equal power
in the work place."(FN72) Management, Stone argued, enjoys a significant
advantage over labor in terms of bargaining power. If management and
labor truly did enjoy equal bargaining power, it would be appropriate to
interpret the NLRA as merely establishing the procedural framework
through which collective bargaining takes place. However, because the
model is based on the false assumption of equality of bargaining power,
using it as the world view by which the NLRA is interpreted instead
resulted in the continuation of management's dominance, rather than in the
creation of true workplace democracy.
Management's dominance was guaranteed by the Court's interpretation
of the NLRA as mandating a system of private ordering wherein terms of
employment are determined privately by the parties through collective
bargaining and disputes are determined privately through arbitration. The
9
maintenance of this private ordering scheme ensures the continued
dominance of the party with superior bargaining power, in this case
management, because it ensures that labor will never be able effectively to
exercise or marshall its power.(FN73) In Stone's view, worker power comes
from creating disorder: "The entire history of the labor movement is a
history of workers creating 'disorder .... Only in the midst of 'disorder do
workers have the leverage to press for their demands."(FN74)
Institutionalizing collective bargaining, limiting when workers can take
collective action, and moving grievances off the shop floor and into the
arbitration process are all examples of how the law has limited worker
power by limiting their ability to create disorder. The entire thrust of the
way the NLRA has been interpreted, then, according to Stone's analysis, has
been to serve the major values of ensuring industrial peace and
management prerogative by disempowering workers.
Staughton Lynd, who is both a historian and a legal scholar, provided
an analysis that supported, in part, both Klare and Stone's theses.(FN75)
Lynd argued, as did Klare, that the Wagner Act contained language that
allowed the courts great latitude in choosing between emphasizing workers'
rights and emphasizing labor peace.(FN76) However, Lynd disagreed with
Klare that the Court's interpretations during the 1937-1941 period had any
significant impact on the labor movement.(FN77) During this time period,
Lynd argued, the courts were far less important to what was happening to
the labor movement than was the direct action being engaged in by workers
during this time.(FN78) Indeed, during the decade from 1937 to 1947, Lynd
argued, unlike Klare, that the Court emphasized workers' rights.
However, since 1947 the Court has emphasized labor peace. Lynd
concluded that this change occurred because of the influence on the
Supreme Court of "a group of labor law professors who told the Court year
after year that the subjugation of workers' rights to the interests of labor
peace was reasonable and in the interest of 'national labor policy. "(FN79)
Lynd listed Archibald Cox, as did Stone, as one of the major influences on
the Court's labor law interpretations, as evidenced by the Court's frequent
citations of Cox's labor law articles.(FN80).
Although Klare and Stone examined different time periods with regard
to the NLRA and approached the analysis from somewhat different
perspectives, both focused on the role of ideology, or the prevalent world
view, on the shaping of the law. And, both concluded that the prevailing
world view was one that supported industrial peace and stability, and an
efficient operation of the work place, over worker power and worker rights.
Lynd focused narrowly on the impact of industrial pluralists like Archibald
Cox on Supreme Court jurisprudence. However, he also addressed the
ideological context in which the Supreme Court made its interpretative
choices. Thus, all three shared an approach that emphasized that the Court
did have a choice regarding how the NLRA was to be interpreted and all
three emphasized the importance of ideology in structuring the choices that
judges made.
10
In a book published in 1983, legal scholar James Atleson also focused
on the role of ideology in the shaping of U.S. labor law.(FN81) Atleson, like
Klare, Stone and Lynd, concluded that the Wagner Act was subject to
different interpretations. Atleson's thesis was that the values and
assumptions that shaped the interpretation that the Supreme Court
ultimately chose were rooted in the belief in the sanctity of property rights
and in the common law of labor relations that originated in the nineteenth
century. At the heart of nineteenth century labor law, Atleson argued, was
master-servant law.(FN82) The judiciary's view of labor law through the
lenses of master-servant law created certain hidden values and assumptions
that have shaped the Court's interpretation of the NLRA. These values and
assumptions were based on the superior position of the master, and the
economic interests of the master, vis-a-vis the servant. Consequently, one
of the most critical assumptions in labor law is that "continuity of
production must be maintained."(FN83) Thus, whenever the language of
the Act creates a conflict between protecting fully the workers' right to
strike and the employer's desire to continue operations, the doubt will be
resolved in favor of the employer. This value, Atleson contended, explains
the Supreme Court decisions that permit employers to permanently replace
workers engaging in economic strikes, even though such replacement
severely undermines the bargaining power of workers who engage in such
strikes.(FN84).
A second assumption that Atleson identified as shaping the
interpretations of the Act is the belief that "employees, unless controlled,
will act irresponsibly."(FN85) This assumption, Atleson argued, explained
the heavy burden of proof the Court has imposed on workers who exercise
their statutory right to strike if they believe in good faith that the work place
presents health or safety dangers.(FN86).
The influence of the master-servant paradigm created three additional
assumptions: employees have a lesser status than employers; management
has the right to control the work place; and, employees cannot be viewed as
equal partners with equal bargaining power because "such an arrangement
would interfere with inherent and exclusive managerial rights of
employers."(FN87) These assumptions, Atleson argued, explained decisions
that preserved managerial prerogative and that prohibited slowdowns and
sit-down strikes.
Atleson's review of the Supreme Court's Wagner Act jurisprudence led
him to conclude that modern U.S. labor law is "infused with older masterservant doctrines" to the same extent as was nineteenth century common
law.(FN88) Thus, the institution of collective bargaining, while it may have
brought some tangible benefits to workers as a technique to minimize the
arbitrary exercise of managerial power, did not "seem to have altered basic
legal assumptions about the workers' place in the employment
relationship."(FN89).
11
Law professor Matthew Finkin provided a stinging critique of the
ideological arguments advanced by both Klare and Stone, although he did
not address the Lynd article in any detail, and Atleson's book was not
available when Finkin wrote the critique.(FN90) The thrust of Finkin's
criticism of Klare was Finkin's conclusion that "Klare's piece rests entirely
on an unsupported (and insupportable) assumption about the supposed
radicalism of the Wagner Act."(FN91) Finkin argued that Klare was simply
wrong about the radical intent of the Wagner Act. Finkin's review of the
legislative history uncovered no evidence of radical intent. Thus, if there
was no radical intent, then all of Klare's analysis about the political choices
made by the Supreme Court were erroneous.(FN92) Klare provided a
convincing rebuttal to this point in an article published in response to
Finkin's criticism.(FN93) Klare asserted in his defense, and a fair reading of
"Judicial Deradicalization" supports this assertion, that he never claimed
that Congress clearly intended the Wagner Act to be a radical
measure.(FN94) Rather, Klare's point was that a review of the legislative
history showed that the intent was unclear, but that the language of the Act
made it subject to varying interpretations, one of which had radical
potential. Thus, the Supreme Court was given the freedom to determine
that meaning through its interpretations. Klare's analysis was an attempt to
examine the underlying ideology or world view that shaped the Court's
approach to its task of making these interpretative choices.
The thrust of Finkin's criticism of Stone was that the roots of
industrial pluralism were to be found in the adoption of the Wagner Act
itself, and hence were not developed by the Supreme Court in the post-war
period.(FN95) Finkin also attacked Stone for what he described as her
"distaste for private ordering."(FN96) This "distaste" Finkin suggested, led
Stone to distort the facts of cases she used to support her thesis. Finally, in
a discussion that focused on differing interpretations of the implications of
various schools of industrial sociology and human relations, Finkin further
attacked Stone for her conclusion that the arbitration and grievance
processes have resulted in the disempowering of labor.
While it appears that Finkin was accurate with some of his specific
criticisms of both Klare and Stone, it also appears that he simply missed the
point of both pieces. Neither Klare nor Stone provided the typical legal
analysis of the development of case law, which is how Finkin appeared to
approach legal scholarship. Rather, both were attempting to look
underneath that analysis in an attempt to uncover the forces that led judges
to make one choice of interpretation rather than another. While all scholars
should be accurate with the case facts, Finkin's inability to see beyond this
resulted in his inability to see the real contribution that both of these pieces
made - even if one disagrees with them - in helping scholars analyze the way
in which the law is shaped, as well as the way the law shapes society.
Reading Finkin's piece would lead one to conclude that it would be a gross
understatement to suggest that he is not one who appreciates the
contributions of CLS.
12
While the approaches of Klare, Stone, Lynd and Atleson focused on
the role of ideology in shaping the interpretation of the NLRA and the
impact of those interpretations on the labor movement, legal scholar Paul
Weiler examined the impact of the actual operation of the Act on the
decline of the organized U.S. labor movement.(FN97) Weiler's thesis was
that a major factor in the decline of organized labor was the framework
through which representation elections take place. In order to obtain
recognition under the NLRA as the bargaining representative, the union
must first obtain membership authorization cards from at least thirty
percent of the workers. These cards, along with a certification application,
are then submitted to the NLRB. Before the election can take place, the
NLRB investigates the petition, defines the bargaining unit, and decides
whether the conditions have been met to conduct an election.(FN98).
The thrust of the problem, in Weiler's view, was that the period
between the filing of the certification application and the election often is
quite lengthy, typically two months. During this time period, the employer
has the opportunity to engage in anti-union activities in an attempt to
persuade workers to vote against the union. Although the NLRA prohibits
unfair labor tactics by employers during the campaign period, Weiler argued
that statistics show that since the late 1950s charges of unfair labor practices
against employers - and particularly charges emanating from discriminatory
dismissals of union leaders and supporters - skyrocketed.(FN99) Even
though the NLRA prohibits such dismissals, the only sanction is back pay
and reinstatement. Even though the employer may have to pay back wages
and reinstate the worker, many employers have concluded that this is a
small price to pay to avoid unionization. Further, Weiler argued, the
sanction of ordering the employer to bargain without an election where
unfair labor practices have made a fair election impossible is equally
unsatisfactory because it undermines the union's bargaining effectiveness.
Such orders result in reaching an agreement only half as often as where the
union has won in the representation election.(FN100) Thus, the available
remedies, Weiler argued, are simply inadequate to discourage such employer
conduct.(FN101) The result was a dramatic drop in the union victory rate,
from a high of 74% in 1950 to a steadily declining figure of 48% by
1980.(FN102).
Weiler concluded that the only way to avoid the problem caused by
the time lag is to adopt the Canadian system of instant elections. Under the
instant election system, the election would be held immediately after the
presentation of the certification application. This would eliminate employer
opportunity to engage in coercive tactics in an attempt to pressure workers
into rejecting the union.(FN103).
Weiler made a convincing case for his thesis by the comparison he
made with the Canadian trade union experience. Weiler argued that Canada
and the U.S. share the same economic and geographic environment and
have similar systems of industrial relations.(FN104) Thus, their comparative
experiences are revealing. Up until the mid-1960s, the percent of unionized
13
non-agricultural laborers was about the same in both countries.(FN105)
However, in the mid-1960s - by which time the effect of the skyrocketing
rate of employer unfair labor practices was being felt in the U.S. - union
density in Canada continued to grow, while that in the U.S. began a decline.
By 1980, Canadian union membership of the non-agricultural labor force
stood at about 38%, while the U.S. was at about 22%.(FN106).
For Weiler, then, it was the structure created by the NLRA, and not
the ideology shaping judicial interpretations of that Act, that was the
dispositive factor in U.S. labor union decline. Political scientist Michael
Goldfield agreed with this assessment in his 1987 book, The Decline of
Organized Labor in the U.S.(FN107) Goldfield concluded that the passage
of the 1947 Taft-Hartley Act signaled the beginning of an anti-union
attitude on which employers have capitalized by launching sophisticated
anti-union offensives. Instead of hiring armed thugs, employers now hire
anti-labor consulting firms to guide them through the election period.
Instead of using the blacklist, employers now engage in delaying tactics to
put off the election as long as possible, and increasingly engage in the kinds
of unfair labor practices described by Weiler during the campaign
period.(FN108) And, Goldfield concluded, the unions contributed to their
own demise by failing to develop effective techniques for dealing with the
employers' antiunion offensive.(FN109) Thus, in Goldfield's view, a public
policy that permitted employers to engage in vigorous anti-union campaigns
was the main culprit in the decline of organized labor.
ASSESSMENTS OF HISTORIANS
While much of the scholarship on the law and union decline has
emanated from the law schools, historians have addressed the issue. In a
1977 essay entitled "American Workers and the New Deal Formula," labor
historian David Montgomery focused more on the decline of U.S. labor as a
force for social reform than on the decline of organized labor itself.
Montgomery argued that the New Deal formula contained three ingredients
for workers.(FN110) The first ingredient was the "state subsidization of
economic growth."(FN111) The federal government reluctantly
experimented with Keynesian economics and deficit spending during the
mid- to late-1930s. However, deficit spending was not adopted on any
widespread scale until World War II, during which time defense production
fueled the economy.(FN112) After the war years, public spending
continued to play a critical role in economic growth. However,
Montgomery argued, much of this public spending continued to be on
defense efforts thereby seriously retarding "expansion in other sectors of
the economy," expansion that presumably might have alleviated some of
the structural unemployment that occurred in the 1970s.(FN113).
The second ingredient in the New Deal formula was legal support for
collective bargaining. Montgomery described the collective bargaining
framework that developed as "simultaneously liberating and cooptive for
14
the workers."(FN114) It was liberating because it lifted "the suffocating
burden of absolute managerial control from the working lives of
Americans."(FN115) However, the legal framework that developed
following the Wagner Act resulted in a taming of the rank-and-file and the
subjection of the unions themselves to "tight legal and political
control."(FN116) Montgomery presented an analysis of Supreme Court
jurisprudence and its impact on rank-and-file activity that was in agreement
with Klare, Stone and Lynd.
Montgomery identified the labor movement's alignment with the
Democratic Party as the third ingredient in the New Deal formula.(FN117)
Labor entered the alliance to obtain legal protection for collective
organizing and collective bargaining.(FN118) Montgomery identified two
negative consequences for labor as a result of this alliance. First, it meant
that labor had to support the Democratic foreign policy, including cold war
foreign policy. One significant result of labor's loyalty to the Democratic
Party, including its foreign policy, was the Communist purge of the CIO
that occurred in the last half of the 1940s. This purge, Montgomery argued,
combined with labor's view that it must continue to be loyal to the
Democratic Party, "suffocated political and ideological debate in workingclass America."(FN119) The second result of the alliance with the
Democratic Party was that the U.S. labor movement was reduced to a trade
union movement, or more precisely, because of the structure created by the
NLRA, to "an immobile and isolated aggregation of legally certified
bargaining agents."(FN120) Thus, U.S. labor was rendered incapable of
providing alternatives for the social reform agenda in the post-war period.
Montgomery concluded that labor's potential as a force for meaningful
social change, which was strong in the mid-1930s, had been rendered null
by the New Deal formula.
In an essay published in 1980, David Brody presented an analysis
similar to that of Montgomery.(FN121) As was the case with Montgomery,
Brody focused more on the decline of labor as a strong social and political
force for change, than on the decline in numbers. However, as also was the
case with Montgomery, Brody's analysis was consistent with those of the
legal scholars who examined the issue of labor's decline. Brody argued that
the legal framework established by the Wagner Act produced two negative
consequences for labor. First, the legal framework as developed forced
collective bargaining to take place in a way that divided the labor
movement. Separate unions were forced to bargain separately with
individual employers. Thus, labor could not act as a unified whole.(FN122)
Brody attributed this separate bargaining to the defeat of Walter Reuther's
strategy to obtain the industrial-council plan whereby labor could be an
equal participant in a true system of industrial democracy. For example,
during the auto industry strikes of 1945 Reuther was forced to conduct the
UAW's bargaining with GM separately from the bargaining with Ford and
Chrysler. And, even though Reuther's strategy of obtaining worker
participation in the auto industry had direct implications for other
industries, the unions in these other industries had to bargain separately,
15
also. Separate bargaining made coordination difficult and it also drained
unions financially, thereby decreasing their ability to obtain true
reform.(FN123).
The second negative consequence of the NLRA, in Brody's view, was
that the framework that developed out of it placed a premium on union
contractual responsibility.(FN124) In order to obtain the protection of the
NLRB, unions had to be able to control their rank and file. The arbitration
system for grievances was the crowning point in controlling the rank and
file. Grievances were moved off the shop floor and resolved some time
after the event by an outside arbitrator, thereby minimizing disruptions to
the flow of production. Thus, as was the case with Montgomery, Brody's
analysis was consistent with that presented by legal scholars.
In his 1982 book Labor's War at Home, Nelson Lichtenstein agreed
with the assessment of the CLS scholars that the Wagner Act had
significant radical potential.(FN125) Lichtenstein also agreed with much of
the analysis presented by Montgomery and Brody. The labor law
framework, Lichtenstein agreed, did result in the taming of the rank and
file. It also pushed the labor movement into an alliance with the
Democratic Party in order to continue to enjoy the benefits of protection
for union activity. And, in order to continue to receive the protection of the
party in power, the legal framework encouraged union leaders to promote
union contractual responsibility over worker militancy. However, unlike
Montgomery and Brody, the culprit in Lichtenstein's view was the union
leadership itself. Lichtenstein's thesis was that the war reshaped the labor
movement, and particularly the CIO. Specifically, the response of the CIO
leadership to the wartime crisis reshaped the labor movement.(FN126).
Labor leaders like Phillip Murray, mindful of what happened to or
ganized labor at the end of World War I, chose to support the war effort,
including pledging not to strike for the duration, in the hope that the
government would continue to support unions at the war's end. In addition
to preserving wartime gains, labor leaders hoped to obtain for labor a role
equal to business in developing wartime industrial policies and protection
for workers, who were pledged not to strike, from exploitation by
employers. Labor never gained the equal role with business in determining
wartime industrial policies. However, in exchange for the no strike pledge,
labor did gain from the government a "maintenance of membership" clause
by which workers were automatically enrolled in unions upon employment,
although they did have the right to withdraw after 15 days. Under this
maintenance of membership agreement union dues generally were withheld
by the employer and paid directly to the union.(FN127) However, the
maintenance of membership agreement and withholding of union dues
could be withdrawn by the government if the workers violated the no strike
pledge. Union leaders, then, had a powerful incentive to keep the rank and
file under control. Union leadership actively worked to quell wildcat strikes
and developed strong disciplinary measures to punish recalcitrant workers.
By war's end, then, the rank and file had become alienated from the union
16
leadership, and much of the strength of rank and file militancy and labor
solidarity was lost in the process. The organized labor movement had lost
the "socially aggressive character" it had in the 1930s and had become
accommodationist and bureaucratic.(FN128).
Although Lichtenstein did not directly address the issue of the Wagner
Act's impact on labor, the framework established by the Wagner Act
provided the framework within which the labor leaders' wartime activities
occurred, as well as the framework within which they developed their policy
of accommodation. Labor leaders chose their accomodationist strategy in
an effort to retain the benefits they believed that organized labor had gained
from the Wagner Act and from their alliance with the Democrats.
While Montgomery, Brody and Lichtenstein's works all viewed the
legal framework as having a significant impact on the direction of the U.S.
labor movement, none focused primarily on that impact in their works. The
first in-depth treatment by a historian of the impact of the law on U.S.
labor's decline appeared in 1985 with Christopher Tomlins' book The State
and the Unions.(FN129) Tomlins' thesis was similar to that presented by
Stone and Klare. Tomlins agreed with Stone and Klare that the Wagner Act
embodied the goals of industrial democracy, as well as peace and stability.
And, Tomlins concluded, New Deal labor policy turned out not to be
labor's Magna Carta. New Deal labor policy as developed in the 1930s led
to the rise of industrial pluralism, with its overarching emphasis on peace
and stability at the expense of all other values, including industrial
democracy.(FN130).
Tomlins argued that the Wagner Act led to the adoption of industrial
pluralism because it took collective bargaining out of the private arena of
labor-management relations and made collective bargaining a public
matter.(FN131) Because it was a public matter, the public interest came to
prevail over the interests of any private party. The public interest demanded
industrial peace and stability which were necessary for continuous
production. The enforcement of conditions supporting continuous
production, of course, coincided much more with management's interests
than with the interests of labor. Thus, although the Wagner Act did have
the potential for establishing industrial democracy, instead it developed
along a path that focused almost exclusively on peace and stability. Tomlins
attempted to trace the developments that led to the adoption of the
industrial pluralist approach.
Unlike Klare and Stone, who viewed the judiciary as the prime force
that shaped the development of U.S. labor policy, Tomlins targeted the
NLRB as the driving force. In its early years, the NLRB indeed did focus
much of its efforts on guaranteeing workers' rights to self
organization.(FN132) However, by 1939, its focus changed both because of
increasing conflict in the industrial arena and because of changes in
personnel on the NLRB. Because of the increasing militancy of workers in
the late 1930s, the NLRB became increasingly distressed at the unions'
17
inability to control the rank-and-file. Thus, Tomlins contended, the NLRB
rulings began attempting to strengthen the role of the union bureaucracy
"as sources of stability and order in labor relations...at the expense of the
workers."(FN133) The 1939 appointment of William Leiserson to the
NLRB was a key factor in this shift of emphasis. Leiserson viewed the
NLRB's proper role as that of a "dispute-processing mechanism" and not as
a "maker of law and dispenser of justice."(FN134) Harry Millis, who shared
Leiserson's view on the proper role of the NLRB, joined him on the threemember Board in 1940.(FN135).
An example of one of the ways in which Leiserson and Millis effected
the change in NLRB policy was in scrapping the policy of substitution.
Under this policy, the NLRB had interpreted the Wagner Act language that
guaranteed workers the right to freely choose their own bargaining
representatives as permitting them to change bargaining representatives at
any time, even in the middle of a contract.(FN136) By 1939, the NLRB had
determined that stability was needed at least through the first year after
either a representation election or after the beginning of a new contract, and
refused to permit representation elections during those time
periods.(FN137) However, by 1940, with both Leiserson and Millis on the
Board, it determined that no representation election could be held for the
duration of the contract, providing the contract was for a term that was
customary for contracts in that industry.(FN138) Thus, Tomlins concluded,
Leiserson and Millis "had succeeded in turning contract-bar into a major
tool for securing incumbent unions."(FN139) And, their motive in doing so
was to secure industrial peace and stability.
By the early 1940s, the NLRB had clearly established the dominance of
the values of industrial peace and stability over the values of workers' rights.
The NLRB then turned its attention, Tomlins argued, to forcing unions to
behave responsibly.(FN140) Accomplishing the goal of "responsible
collective action" required further limitations on workers' rights. Through a
series of rulings that followed the lead established by court decisions, the
NLRB placed severe limitations on the types of worker activity protected by
the NLRA.(FN141) The Board placed numerous restrictions on the right to
strike, the main arena in which workers were deemed to behave
irresponsibly.(FN142) In addition, the Board placed limitations on the
rights of foremen to unionize, began punishing workers' unfair labor
practices by denying statutory protection for the activities, expanded the
permissible speech rights of employers during representation campaigns,
and excused employer refusal to bargain where the union had shown bad
faith.(FN143) Thus, Tomlins concluded, Taft-Hartley did not represent a
radical curtailment of workers' rights; rather, it simply codified many
changes already instituted by the NLRB.(FN144).
By 1947, then, unions had become "quasi-public 'service organizations
" limited to bargaining on issues of wages, hours, and working conditions,
and designed to serve the industrial order's need for peace, stability and
continuous production.(FN145) All of labor's power was concentrated in
18
the union bureaucracy, with workers limited to the passive role of
consenting to agreements negotiated by their bargaining agents. Tomlins
concluded his analysis of the impact of labor law on the U.S. labor
movement with the suggestion that labor needed to reevaluate its alliance
with the state.(FN146).
Historian Melvyn Dubofsky presented a somewhat different picture of
the impact of labor law on U.S. labor. In a 1981 article in which he
responded to the theories of Karl Klare and Staughton Lynd, Dubofsky
agreed with both Klare and Lynd that labor law had "strengthened the
position of employers (capital) and trade unions (formal institutions) at the
expense of the rank and file workers."(FN147) However, Dubofsky
disagreed with the conclusion that the NLRA had deradicalized or
repressed workers. To support his contention that the Act did not
deradicalize workers, Dubofsky provided statistics showing that the number
of strikes rose steadily beginning in the 1930s and remained "at historically
quite high levels in the 1960s and 1970s."(FN148) Further, Dubofsky
argued, there existed no evidence to indicate that the strikes of the 1960s
and 1970s were less radical or militant than earlier strikes.(FN149) Nor did
the labor law framework repress workers. Dubofsky argued that before the
Wagner Act workers had "precious few" rights, whereas after its adoption
"most workers probably have more job rights than they had in the
past."(FN150) Dubofsky criticized both Klare and Lynd for focusing too
narrowly on the law as an autonomous force. Rather, Dubofsky argued,
truly to understand the situation in which the labor movement finds itself,
one must examine the development of the law within the context of wider
societal forces: "the interpretation and evolution of the law must be
understood not in isolation but in closer relation to shifts in the balance of
power between labor and capital and to the political forces contending for
power within the state."(FN151) Dubofsky attempted this broader analysis
in his 1994 book, The State and Labor.(FN152).
Dubofsky agreed with Klare that in 1937 the judiciary began
interpreting the Wagner Act in "a less radical manner" that attempted to
"restrain militant unionism."(FN153) Dubofsky also agreed with Atleson
that some of these decisions reflected "old judicial doctrines."(FN154)
However, Dubofsky's analysis of Supreme Court decisions on the Wagner
Act led him to conclude that the Court generally affirmed NLRB rulings
and supported workers rights between 1938 and 1941.(FN155) Thus,
Dubofsky concluded that Klare had exaggerated the impact of the few
Supreme Court decisions that were anti-labor.(FN156) In fact, Dubofsky
argued that by the end of 1941 the federal judiciary stood alone among the
executive branches of the federal government in its refusal, "in the face of
an aggressive and growing antilabor movement," to retreat from the original
intent of the Wagner Act.(FN157) During the war, the Supreme Court
continued its support of workers' rights.(FN158) The U.S. labor movement
emerged from World War II as a powerful force in the post-war broker
state.
19
However, the U.S. labor movement also emerged from the war in a
state of internal conflict. The AFL and CIO still operated separately and as
rival organizations. The CIO itself was deeply divided over the participation
of Communists within its unions.(FN159) The splits within the labor
movement, combined with the post-war Republican domination of
Congress opened the way for a "postwar managerial counterattack against
trade unionism."(FN160) While these circumstances provided the
environment within which Taft-Hartley could be adopted, Dubofsky agreed
with Tomlins that Taft-Hartley did not dramatically change the complexion
of labor law, but rather was basically a continuation of prior labor
policy.(FN161) However, Dubofsky disagreed with Tomlins that the labor
policy as contained in New Deal policy and Taft-Hartley damaged workers.
Rather, during the quarter century after Taft-Hartley was adopted,
"unionized workers enjoyed steadily rising real wages and incomes as
beneficiaries of the successful practice of the 'politics of productivity.
"(FN162).
Dubofsky agreed with Stone's analysis that during the decades of the
fifties and sixties, industrial pluralism became firmly ensconced in U.S.
labor policy.(FN163) However, Dubofsky viewed the workings of industrial
pluralism as advantageous for workers. In a political economy based on
growth rather than redistribution of income, industrial pluralism could
succeed in meeting the needs of both capital and labor. While strikes
occurred frequently in the post-war period, within the context of the
economic growth of the post-war era, they lost their militancy. Workers no
longer were striking for their right to collectively organize and bargain.
Rather, they were striking for "the best possible agreement."(FN164)
Collective bargaining, Dubofsky concluded, created the affluent society of
the fifties and sixties.(FN165).
However, Dubofsky argued, the success of industrial pluralism was
dependent upon the continuation of prosperity, a condition that ended in
the decade of the 1970s.(FN166) While Weiler identified the turning point
in the decline of labor as the mid-1950s when the percent of organized
non-agricultural workers began to decline, Dubofsky argued that the decline
did not begin until the mid-1970s. Although Dubofsky agreed that the
percentage of unionized workers began to decline in the mid-1950s, the
absolute numbers of organized workers rose steadily until the middle of the
1970s.(FN167) However, the changes in the economy that occurred in the
1970s, both domestically and internationally, "devastated the trade
unions."(FN168) Unemployment rose due to a variety of factors:
competition from abroad, increasing use of automation in the work place,
the influx of the baby boomers into the work force, and the downsizing of
many companies in an attempt to stay competitive internationally.(FN169)
In their weakened state, trade unions were subject to increasing attacks both
from management and from the federal government as exemplified by
President Reagan's handling of the PATCO strike.(FN170) Economic and
political changes, then, and not the law, led to labor's decline.
20
CONCLUSION
The scholarly assessments are mixed regarding the impact on the U.S.
labor movement of the legal framework established by the National Labor
Relations Act. The initial historical assessments, by Leuchtenburg and
Bernstein, were not really assessments, but mere reporting of the way in
which contemporaries had viewed the Wagner Act. The New Left analysis
was not much more satisfying, because it was so simplistic. However, it did
pose the question for scholars of whether they should examine the actual as opposed to the stated and hoped for - impact of the Wagner Act.
Legal scholars responded to the challenge sooner than did historians.
The CLS scholars - Klare, Stone, and Atleson - provided valuable and
exciting assessments of the impact of ideology on the shaping of the law,
and ultimately on the law's impact on the labor movement. While legal
scholar Paul Weiler moved away from the ideological approach and focused
on the actual structure of the law, he still argued, as had the CLS scholars,
that the law itself was the major factor that had led to the decline of labor.
While the legal scholars provided assessments that were valuable, as had
been those of the New Leftist historians, in terms of raising questions about
the actual impact of the Wagner Act for the labor movement, ultimately
their work is unsatisfactory because it is so one-dimensional. Their narrow
focus on the law limited their ability to understand - as least so far as it is
reflected in their writings - the interrelationship of various factors, with the
law as just one among several, in ultimately determining the fate of labor.
Staughton Lynd, both a legal scholar and a historian, wrote only two brief
essays - one of which was an invited response to an article by Karl Klare
and one of which was a book review - on this topic. His two essays hinted
at the complexities of this issue, complexities that the legal scholars did not
examine. For example, he noted that even though Klare's analysis of the
Supreme Court case law for the period 1937-1941 was basically accurate,
this case law was not important to what was happening to labor during that
time period. Rather, the direct action of the workers themselves was far
more important.(FN171) The works of the historians who began examining
this issue in the late 1970s and continuing until today - Montgomery, Brody,
Lichtenstein, Tomlins, and Dubofsky - are more satisfying than that of the
legal scholars simply because they, unlike the legal scholars, recognized the
complex interplay of economic, political, social, and cultural forces, in
addition to legal forces, that have shaped the course of modern labor
history.
Nevertheless, the works of both the legal scholars and the historians
do address the questions posed at the beginning of this Commentary: is the
law a constitutive force for change and are reform movements that attempt
to work within the system, on the system's own terms, doomed to cooptation and hence failure? With respect to the issue of whether the law is a
constitutive force, one might be tempted to conclude, based on a review of
the works discussed in this Commentary, that business interests were able
21
to dominate decision making, both with the judiciary and with the NLRB,
such that the NLRA was distorted to serve business interests by weakening
organized labor. Thus, as long as business interests are dominant, groups
with competing interests, such as organized labor, are doomed to cooptation and hence failure. However, I believe that another influence is at
work with respect to the impact of the NRLA on organized labor.
One of the policy debates that dominated the decade of the 1930s was
whether the U.S. should adopt Keynesian deficit spending as a way to lift
the country out of the depression. When the war effort illustrated the
enormous potential of deficit spending as a cure for depression the focus of
the debate became what brand of Keynesianism should be adopted: social
Keynesianism in which the government itself engaged in direct social
welfare spending programs, or commercial Keynesianism in which the
government used tax cuts, cuts which forced the government to spend
more than it took in, to encourage additional spending by
individuals.(FN172) Social Keynesianism would place spending decisions in
the hands of the federal government and would greatly enlarge the power
of the executive branch which would oversee the spending programs.
Commercial Keynesianism would leave spending decisions in private hands
and would not aggrandize the power of the federal government. For a
variety of reasons, the U.S. chose commercial Keynesianism, rather than
social Keynesianism.(FN173).
The maintenance of consumer purchasing power was a critical factor
for the success of commercial Keynesianism. Interconnected to the
maintenance of consumer purchasing power was the maintenance of high
levels of productivity. If we could maintain the highest possible levels of
productivity, we could maintain full employment and eliminate scarcity,
thereby avoiding both further depressions and class conflict that emanates
from scarcity. Political scientist Charles Maier has described this policy
choice as the "apolitical politics of productivity."(FN174) The politics of
productivity was apolitical because increased productivity would allow us to
achieve the goal of economic security for all without redistributing wealth
from one class to another, and hence without making any structural social
and economic reforms; instead, we would create new wealth, thereby
benefitting all classes. The goal during the 1950s thus became one of
maintaining harmony among all segments of society, particularly between
labor and capital.(FN175).
Industrial pluralism was a development that was consistent with the
politics of productivity. As Christopher Tomlins noted in his work, the
NLRA took labor-management relations out of the private arena and placed
it in the public arena.(FN176) The government could best maintain the
harmony between labor and management demanded by the politics of
productivity by placing labor-management relations in the public arena.
However, as Tomlins also noted, because labor-management relations now
became a public matter, public interest came to prevail over those of any
private party. And, because the politics of productivity dominated the policy
22
of the post-war period, the public interest demanded continuous,
uninterrupted production. Thus, one could properly view the
interpretations of the NLRA by both the judiciary and the National Labor
Relations Board, many of which had the effect of minimizing interruptions
to the work process, as being motivated by the commitment that the major
segments of our society had made to the politics of productivity, and not as
an attempt to favor business interests over those of labor.
The numerous scholars who have argued that the effect of the judicial
and NLRB decisions that gave priority to the politics of productivity also
had a negative impact on organized labor make a compelling case that the
NLRA was a constitutive force for change. This negative impact occurred
because the NLRA was interpreted to serve the public interest and not the
interests of organized labor. Disruption to the process of production was
labor's major weapon in its struggle to maintain a power relationship equal
to that of management. However, disrupting production was inconsistent
with the politics of productivity. Thus, the courts and the NLRB
interpreted the NLRA so as to minimize labor's ability to interrupt
production. A secondary impact of these interpretations was that organized
labor had a more difficult time protecting its organizational form, the labor
union. In this sense, then, the law very much was a constitutive force for
change.
The question posed for reformers is whether it is ever possible to
avoid the fate that befell organized labor after the passage of the Wagner
Act. Even if reformers are successful in having legislation adopted that
serves their interests, the other instrumentalities of the state - and
particularly the judiciary and administrative agencies - will be the prime
forces that effectuate that legislation. How can reformers prevent the state
from co-opting the objectives of reformers? The course of United States'
history suggests that reformers can not prevent this co-optation from
occurring. Our history, for example, provides continuing examples of third
parties dissolving because their issues are absorbed by the mainstream
political parties.(FN177).
Perhaps reformers, including those labor reformers who supported the
NLRA, need to reassess their measurements for success. In order for a
reform to be considered successful, must it be successful forever? The
evidence clearly indicates that organized labor benefitted greatly from the
NLRA for the first thirty years after its passage. Membership increased
dramatically in the 1930s and steady growth occurred, in real terms, until
the mid-1970s. Workers also benefitted greatly in terms of improved wages
and benefits during the three decades after adoption of the NLRA. Clearly,
many people who were engaged in the workforce during the 1940s through
the mid-1970s must have believed that the NLRA was a success. The fact
that the NLRA no longer appears to support the existence of organized
labor unions may simply indicate that labor needs to rethink its approach to
how best to protect its interests.
23
In addition, perhaps reformers need to broaden the scope of how they
measure their success. Although the stated goal of labor leaders who
supported the NLRA - to promote and maintain formal labor organizations
- in the long run appears to have been undermined by the law, organized
labor has played a major role in effecting significant broader social reforms.
For example, organized labor was one of the significant forces that led to
the passage of the civil rights legislation of the 1960s, and to ERISA and
OSHA in the 1970s. Labor also was an important ally in the passage of
much of the War on Poverty legislation that emanated from the Great
Society.(FN178) While much of this legislation did support the goals of
organized labor, it benefitted much larger groups of people than just
members of labor unions. In fact, some scholars have argued that organized
labor has had most success in supporting reform legislation that serves the
broader interests of society as a whole, rather than with legislation that
serves only the narrow interests of organized labor.(FN179) If one views
organized labor's role within this context of broader reform benefitting
society as a whole, one also must conclude that the NLRA allowed labor to
have a meaningful impact on society.
Indeed, organized labor's ability to have an impact on the broader
reform agenda of the 1960s and 1970s may be its most enduring legacy. If
one accepts the significance of labor's impact on the broader reform agenda
for society as a whole, one must attribute the ability of labor to have this
impact on the law to the NLRA. The irony of this - that the law allowed
labor to have an impact on the broader reform agenda - may be one of the
most interesting aspects of U.S. labor history. In the nineteenth century,
because of the intense hostility the law - primarily the judiciary - directed
toward it, organized labor gave up its broad-based reform agenda and
concentrated on the narrow goals of "bread-and-butter" unionism, goals
that were designed to serve only the self-interests of union members.
However, the impact of the twentieth century's major legal development
regarding labor, the NLRA, has enabled labor to be in a position where it
was able to successfully promote a broad reform agenda, even while it was
not able to successfully promote its narrow objectives, designed to serve
only its self-interest.
Indeed, the labor movement's successes in effecting broad reform
efforts may be the key to its continued viability. Perhaps it is time for labor
leaders to reconsider their own history. During the first two-thirds of the
nineteenth century, many members of the labor movement did view
themselves as part of a larger reform movement, a movement that
encompassed issues well beyond the narrow interests of working
people.(FN180) With the continuing growth of the service sector in the
U.S. economy and the continuing decline of heavy industry as a percent
contributor to the GNP, one can safely predict that the organized labor
movement, as we have known it, will continue to decline. However, if
organized labor were to re-vision its role in society, perhaps it could again
become a strong force for change. Maybe it is time for organized labor to
build on its successes with effecting broader social reform by forming
24
political alliances with other reform movements in order to promote
common goals through political action.(FN181) With its numbers steadily
shrinking, organized labor needs such alliances in order to have any hope of
revitalizing itself as a force for change.
A D D E D M AT E R I A L .
FOOTNOTES* Associate Professor, College of Business, The Ohio
State University.
1 Deborah A. Ballam, Commentary: The Law As A Constitutive Force
for Change: The Impact of the Judiciary on Labor Law History, 32 AM.
BUS. L.J. 125 (1994).
2 Id. at 149.
4 Roosevelt Signs the Wagner Bill As "Just to Labor," N.Y. TIMES,
July 6, 1935, at A1.
4 Roosevelt Signs the Wagner Bill As "Just to Labor," N.Y. TIMES,
July 6, 1935, at A1.
5 Id.
6 Id.
7 As Melvyn Dubofsky stated, both the business community and
conservatives "took umbrage at the law." They objected both to the deep
incursion of the federal government into realms that they considered to be
private matters and to the Act's implication that "the federal government
was now behind the effort of the labor movement to unionize workers."
See MELVYN DUBOFSKY, THE STATE AND LABOR IN MODERN
AMERICA 130 (1994). The July 6, 1935 New York Times article noted that
many industries planned legal attacks on the Wagner Act, asserting its
unconstitutionality. N.Y. TIMES, supra, note 4. The legal attacks ultimately
proved unsuccessful as the Supreme Court upheld the Act's
constitutionality in National Labor Relations Board v. Jones & Laughlin
Steel Corp., 301 U.S. 58 (1937).
8 For a concise discussion of Samuel Gompers' thinking on the labor
movement, and for the various approaches historians have taken in
analyzing Gompers, see John H.M. Laslett, Samuel Gompers and the Rise
of American Business Unionism, in LABOR LEADERS IN AMERICA 62
(Melvyn Dubofsky & Warren VanTine eds., 1987).
9 For excellent discussions of the role of the state in the development
of Gompers' voluntarism philosophy and in the development of the
mainstream labor movement in general, see WILLIAM E. FORBATH,
LAW AND THE SHAPING OF THE AMERICAN LABOR
25
MOVEMENT (1991) and VICTORIA HATTAM, LABOR VISIONS
AND STATE POWER: THE ORIGINS OF BUSINESS UNIONISM IN
THE UNITED STATES (1993). For an in-depth discussion of these two
works, as well as for a concise history of the nineteenth century labor
movement see Ballam, supra note 1.
10 RONALD L. FILIPPELLI, LABOR IN THE U.S.A.: A
HISTORY 140 (1984).
11 Id. at 156-57.
12 Id. at 161-62.
13 William Green, in fact, had long championed the political approach
of trying to use government to help labor. See Craig Phelan, William Green
and the Ideal of Christian Cooperation, in LABOR LEADERS IN
AMERICA 134, supra note 8 for a discussion of Green.
14 Mike Davis, The Barren Marriage of American Labour and the
Democratic Party, 124 NEW LEFT REV. 43, 62 (1980).
15 Irving Bernstein, The Growth of American Unions, 1945-1960, 2 J.
INDUS. REL. 131, 135 (1960).
16 MICHAEL GOLDFIELD, THE DECLINE OF ORGANIZED
LABOR IN THE UNITED STATES 110-11 (1987).
17 Henry S. Farber & Alan B. Krueger, Union Membership in the
United
States:
The
Decline
Continues,
in
EMPLOYEE
REPRESENTATION:
ALTERNATIVES
AND
FUTURE
DIRECTIONS 105 (1993).
18 GOLDFIELD, supra note 16, at 94.
19 Id. at 94.
20 Id.
21 Id. at 95.
22 Id.
23 Id.
24 Id.
25 Seymour Martin Lipset, North American Labor Movements: A
Comparative Perspective, in UNIONS IN TRANSITION: ENTERING
THE SECOND CENTURY 421 (Seymour Martin Lipset ed., 1986).
26
26 Id. at 429-36.
27 29 U.S.C. * 151 (1982).
28 Id.
29 29 U.S.C. * 157 (1982).
30 29 U.S.C. * 158 (1982).
31 29 U.S.C. * 153 (1982).
32 Ch. 120, tit.1, * 101, 61 Stat. 136 (1947).
33 See FILIPPELLI, supra note 10, at 222.
34 Pub. L. No. 86-257, ** 701(b), 703, 73 Stat. 542 (1959).
35 WILLIAM E. LEUCHTENBURG, FRANKLIN
ROOSEVELT AND THE NEW DEAL, 1932-1940 151 (1963).
D.
36 IRVING BERNSTEIN, TURBULENT YEARS: A HISTORY OF
THE AMERICAN WORKER 1933-1941 678 (1969).
37 Id. at 775.
38 GABRIEL KOLKO, THE TRIUMPH OF CONSERVATISM: A
REINTERPRETATION OF AMERICAN HISTORY, 1900-1916 (1963);
JAMES WEINSTEIN, THE CORPORATE IDEAL IN THE LIBERAL
STATE: 1900-1918 (1968); Ronald Radosh, The Corporate Ideology of
American Labor Leaders from Gompers to Hillman, in FOR A NEW
AMERICA: ESSAYS IN HISTORY AND POLITICS FROM STUDIES
ON THE LEFT, 1959-1967 125 (James Weinstein & David Eakins eds.,
1970).
39 WEINSTEIN, THE CORPORATE IDEAL, supra note 38, at ix.
40 Id. at x.
41 For a discussion of the New Left's view of the Wagner Act see
DUBOFSKY, THE STATE AND LABOR, supra note 7, at 129.
42 See e.g. DUBOFSKY, THE STATE AND LABOR, supra note 7,
at 130; HOWELL JOHN HARRIS, THE RIGHT TO MANAGE:
INDUSTRIAL RELATIONS POLICIES OF AMERICAN BUSINESS
IN THE 1940S 106 (1982).
43 62 MINN. L. REV. 265 (1978).
27
44 Karl Klare, Labor Law as Ideology: Toward a New Historiography
of Collective Bargaining Law, 4 INDUS. REL. L.J.450 (1981); Karl Klare,
Traditional Labor Law Scholarship and the Crisis of Collective Bargaining
Law: A Reply to Professor Finkin, 44 MD. L. REV. 731 (1985); Karl Klare,
Critical Theory and Labor Relations Law, in THE POLITICS OF LAW: A
PROGRESSIVE CRITIQUE 61 (David Kairys ed., 1990).
45 Elizabeth Mensch, The History of Mainstream Legal Thought, in
THE POLITICS OF LAW, supra note 44, at 33.
46 David Kairys, Introduction in THE POLITICS OF LAW, supra
note 44, at 3.
47 Id. at 4-6.
48 Klare, Judicial Deradicalization, supra note 43, at 749.
49 Klare, Traditional Labor Law Scholarship, supra note 44, at 738.
50 Id. at 6.
51 Id. at 7.
52 Id. at 7.
53 Klare, Labor Law As Ideology, supra note 44, at 452.
54 Id. at 452.
55 Id. at 452-53, 459.
56 Id. at 463-64.
57 Id. at 452-53.
58 Klare, Judicial Deradicalization, supra note 43; Klare, Reply to
Professor Finkin, supra note 44, at 741.
59 For Klare's discussion of these six goals see Klare, Judicial
Deradicalization, supra note 43, at 281-84.
60 Id. at 265.
61 Id. at 292.
62 Id. at 293-310.
63 Id. at 310-18.
28
64 Id. at 318-25.
65 Klare, Traditional Labor Law Scholarship, supra note 44, at 749.
66 Katherine Van Wezel Stone, The Post-War Paradigm in American
Labor Law, 90 YALE L.J. 1509 (1981).
67 Id. at 1513.
68 Id. at 1511.
69 Id.
70 Id. at 1516.
71 Id. at 1513.
72 Id.
73 Id. at 1565.
74 Id.
75 Staughton Lynd, Government Without Rights: The Labor Law
Vision of Archibald Cox, 4 INDUS. REL. L.J. 483 (1981).
76 Id. at 484.
77 Staughton Lynd, Ideology and Labor Law, 36 STAN. L. REV. 1273
(1984) (book review).
78 Id. at 1283.
79 Lynd, Government Without Rights, supra note 75, at 487.
80 Id. at n. 36.
81 JAMES B. ATLESON, VALUES AND ASSUMPTIONS IN
AMERICAN LABOR LAW (1983).
82 Id. at 8, 180.
83 Id. at 7.
84 Id. at Chapter 1.
85 Id. at 7.
86 Id. at 7-8.
29
9.
87 ATLESON, VALUES AND ASSUMPTIONS, supra note 81, at 888 Id. at 180.
89 Id. at 180.
90 Matthew W. Finkin, Revisionism in Labor Law, 43 MD. L. REV.
23 (1984).
91 Id. at 85.
92 Id.
93 Klare, Traditional Labor Law Scholarship, supra note 44.
94 Id. at 756-57.
95 Finkin, Revisionism, supra note 90, at 55-63.
96 Id. at 65.
97 Paul Weiler, Promises to Keep: Securing Workers' Rights to SelfOrganization Under the NLRA, 96 HARV. L. REV. 1769 (1983).
98 29 U.S.C. * 159 (1982).
99 Weiler, Promises to Keep, supra note 97, at 1779.
100 Id. at 1795.
101 Id. at 1789.
102 Id. at 1776.
103 Id. at 1805.
104 Id. at 1819.
105 Id. at 1817.
106 Id. at 1818.
107 See infra notes 18-24 and accompanying text.
108 GOLDFIELD, supra note 18, at 225-26.
109 Id. at 226.
30
110 DAVID MONTGOMERY, WORKERS' CONTROL IN
AMERICA: STUDIES IN THE HISTORY OF WORK,
TECHNOLOGY, AND LABOR STRUGGLES (1979).
111 Id. at 161.
112 For an excellent discussion of the path taken by the federal
government in adopting Keynesian economics see ROBERT M.
COLLINS, THE BUSINESS RESPONSE TO KEYNES, 1929-1964
(1981).
113 Id. at 161-63.
114 Id. at 165.
115 Id.
116 Id.
117 Historian Mike Davis identifies this as the most significant factor
in de-radicalizing U.S. labor. See Davis, The Barren Marriage, supra note
14.
118 MONTGOMERY, supra note 110, at 169.
119 Id. at 169-70.
120 Id. at 171.
121 David Brody, The Uses of Power I: Industrial Battleground, in
WORKERS IN INDUSTRIAL AMERICA: ESSAYS ON THE
TWENTIETH CENTURY STRUGGLE 173 (1980).
122 Id. at 188.
123 Id. at 188-89.
124 Id. at 200.
125 NELSON LICHTENSTEIN, LABOR'S WAR AT HOME: THE
CIO IN WORLD WAR II 33 (1982).
126 Id. at 5-7.
127 Id. at 79-80.
128 Id. at 233.
31
129 CHRISTOPHER L. TOMLINS, THE STATE AND THE
UNIONS: LABOR RELATIONS, LAW, AND THE ORGANIZED
LABOR MOVEMENT IN AMERICA, 1880-1960 (1985).
130 Id. at 102.
131 Id. at 145.
132 Id. at 199.
133 Id.
134 Id. at 204-07.
135 Id. at 224.
136 Id. at 232.
137 Id. at 233.
138 Id.
139 Id.
140 Id. at 247.
141 Id. at 260-62.
142 Id. at 267.
143 Id. at 263-73.
144 Id. at 251, 285.
145 Id. at 313.
146 Id. at 327.
147 Melvyn Dubofsky, Legal Theory and Workers' Rights: A
Historian's Critique, 4 INDUS. REL. L.J. 496 (1981). This article was
written in response to articles that appeared in the same volume by Klare
and Lynd: Klare, Labor Law as Ideology, supra note 44; Lynd, Government
Without Rights, supra note 75.
499.
148 Dubofsky, Legal Theory and Workers' Rights, supra note 147, at
149 Id.
32
150 Id. at 499.
151 Id. at 501.
152 DUBOFSKY, THE STATE AND LABOR, supra note 7.
153 Id. at 162.
154 Id.
155 Id. at 155, 162.
156 Id. at 162.
157 Id. at 165.
158 Id. at 169.
159 Id. at 199-200.
160 Id. at 201.
161 Id. at 206.
162 Id. at 207-08.
163 Id. at 217-18.
164 Id. at 214.
165 Id. at 212-13.
166 Id. at 226.
167 Id. at 231.
168 Id. at 227-28.
169 Id. at 229.
170 Id. at 228.
171 See infra notes 77-78 and accompanying text.
172 For a discussion of this debate see Deborah A. Ballam, The
Evolution of the Government-Business Relationship in the United States:
Colonial Times to Present, 31 AM. BUS. L.J. 553, 627-30 (1994).
173 See Id. for a discussion of these reasons.
33
174 CHARLES S. MAIER, IN SEARCH OF STABILITY:
EXPLORATIONS IN HISTORICAL POLITICAL ECONOMY 128
(1987).
175 Robert Griffith, Dwight D. Eisenhower and the Corporate
Commonwealth, 87 AM. HIST. REV. 87, 88-91 (1982).
176 See infra notes 129-46 and the accompanying text.
177 See, e.g., AMERICAN POPULISM (William F. Holmes ed., 1994)
for a collection of essays which discuss populism in general and how the
populist political issues were absorbed by the mainstream Democratic
Party; and, Barton J. Bernstein, The New Deal: The Conservative
Achievements of Liberal Reform, in TOWARDS A NEW PAST:
DISSENTING ESSAYS IN AMERICAN HISTORY 263 (Barton J.
Bernstein ed., 1968), and FRANCES FOX PIVEN & RICHARD A.
CLOWARD, REGULATING THE POOR: THE FUNCTIONS OF
PUBLIC WELFARE 103-04 for discussions of how the New Deal
absorbed the issues of reformers.
178 For a discussion of labor's role in the reform efforts of the 1960s
and 1970s see FILIPPELLI, supra note 10, at 265-66.
179 Id.
180 See Ballam, Commentary, supra note 1, at 129.
181 Melvyn Dubofsky argues that this is the strategy by which labor
can win "a true - as distinguished from a counterfeit - liberty."
DUBOFSKY, supra note 7, at 238.
34