DOCs/The law as a constitutive force for change

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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


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


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


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).


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).


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,


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


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).


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,


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


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.


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).


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.


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


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


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,


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


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'


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 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


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.


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.



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


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


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.


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


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


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 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).


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).


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.


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.



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.


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.


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.


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.


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.


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