The state and its unions: Reassessing the antecedents, development, and consequences of New Deal labor law

Abstract

A new order of labour relations lay at the heart of the New Deal. This article seeks to re-evaluate a well-known heterodox argument about why this order emerged and an associated critique of its consequences that has now influenced our understanding of the New Deal for over a quarter of a century. It examines the impact of adopting different notions of pluralism as well as different comparative reference points. It considers the effects of judicial hostility and early ideological influences on American unions. And it argues that there is a wide variation in the consequences of state intervention in general and legal regulation in particular. Small differences in the law can have big effects.

Notes

^1. On the emergence of the new institutionalism, see Skocpol's programmatic introduction in Evans, Rueschemeyer, and Skocpol, Bringing the State Back In.

^2. All stand-alone numbers in brackets refer to pages in Tomlins, State and the Unions.

^3. As Tomlins readily acknowledges (see pages 101, 119, 126, 138, 141, 191, 193, and 309).

^4. Hall and Soskice, Varieties of Capitalism; Hancke, Debating Varieties of Capitalism.

^5. Crouch, European State Traditions.

^6. See, for example, pages 278 and 280 where it is argued that Taft–Hartley departed little from pluralism despite the fact that the pluralists thought it a major attack on their position. See also pages 274, 316, 242, 299, and 326.

^7. Offe, “Attribution of Public Status,” 136. Compare with Tomlins (147).

^8. Schmitter, “Interest Intermediation,” 295. In Tomlins (326), this same characteristic is said to have ‘expressed to perfection the deepest implications’ of a key constitutive element of industrial pluralism.

^9. Forbath, Law and the Shaping; Hattam, Labor Visions and State Power.

^10. Archer, “Unions, Courts and Parties”; Archer, Why is There No Labor Party?.

^11. Eventually, in 1914, it came even to oppose the passage of eight-hour legislation. This raises questions about the ideological significance that Tomlins (129) attributes to the AFL's support for legislation for a 30-hour week in the early to mid-1930s.

^12. Archer, Why is There No Labor Party?, 207–32.

^13. Fink, Workingmen's Democracy; Voss, Making of American Exceptionalism.

^14. However, see also Kimeldorf, Battling for American Labor.

^15. Archer, Why is There No Labor Party?, 160–8, 207–14.

^16. In addition, in the UK, where unions successfully resisted sympathetic state regulation for much of the twentieth century, they eventually suffered precipitate decline at the hands of a hostile state.

^17. The quote is Tomlins' gloss.

^18. Rickard, Rebel as Judge; Patmore, Australian Labour History.

^19. Freeman and Medoff, What Do Unions Do?; Goldfield, Decline of Organised Labor; Card and Freeman, “Small Differences that Matter”.

^20. Goldfield, Decline of Organised Labor, 195; Freeman and Medoff, What Do Unions Do? 237–8

^21. Freeman and Medoff, What Do Unions Do? 232–3

^22. The initial move toward compulsory elections was an early example of this kind of preemptive adaptation. The previous practice of accepting card checks was overturned in July 1939 (in one of the first decisions following the appointment of William Leiserson) in the face of emerging Congressional pressure for amendments to the Wagner Act. Previously, about a third of certifications had been granted without the need for an election (Gross, Reshaping of the National Labor, 19–20, 105–6, 273 n88 and n89).

^23. By placing most weight on ‘the impact of disagreements among, or choices made by, the regulators themselves,’ Tomlins (198) may have overcorrected earlier treatments that emphasized external factors. Compare with Gross, Reshaping of the National Labor, 2–3, 242, 261–2, 264.

^24. Gross, Reshaping of the National Labor, 89, 91, 112–5, 131–3, 301 n25.

^25. Epstein, Political Parties.