- Human Rights Watch . 2000 . "Unfair Advantage: Workers' Freedom of Expression in the United States under International Human Rights Standards," . August , . These findings are hardly new. Studies by government and independent commissions in the 1970s and 1980s contained similar findings, although without containing the critical international human rights analysis. See Subcommittee on Labor-Management Relations of the House Committee on Education and Labor, 96th Congress, 2nd Session, "Report on Pressures in Today's Workplace," 1980; 98th Congress, "The Failure of Labor Law: A Betrayal of American Workers," 1984; US Department of Labor, Bureau of Labor-Management Relations, Report No. 134, "U.S. Labor Law and the Future of Labor-Management Cooperation," 1989; and US Department of Commerce, Commission on the Future of Worker-Management Relations (Dunlop Committee), Fact Finding Report (1994).
- HRW . "Unfair Advantage" (abridged version) . 5
- Ibid., pp. 3-4.
- Ibid., p. 7. Official data on these incidents can be found in the Annual Reports of the National Labor Relations Board (NLRB). During 1998, 23,580 workers officially suffered reprisals. See NLRB Annual Report, 1998, Table 4, p. 137.
- Gross , James A. 1995 . Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947-1994 , 1 Philadelphia : Temple University Press .
- Bernard , Elaine . 2001 . "Free to Speak, Free to Assemble, Free to Organize," . Labor Party Press , 6 : 1 . Also see the draft Labor Party paper, "Toward a New Labor Law," at the Labor Party's website (www.igc.org/lpa). The paper, written by James Gray Pope, Ed Bruno and Peter Kellman, argues that traditional statutory labor law reform is the wrong path to follow. Instead, it calls for a recommitment to worker mass action on the basis of reclaiming constitutional rights of free labor, free speech, and free association denied the labor movement under the NLRA framework.
- Klare , Karl E. 1998 . "Critical Theory and Labor Relations Law," ” . In The Politics of Law: A Progressive Critique, , 3rd edn , Edited by: Kairys , David . 539 – 568 . New York : Basic Books .
- Klare . "Judicial Deradicalization of the Wagner Act" . Katherine Stone ,
- 1981 . "The Post-War Paradigm in American Labor Law," . Yale Law Journal , 90 : 1509
- Stone , Katherine . 1982-1983 . "The Structure of Post-War Labor Relations," . New York Unibersity Review of Law and Social Change , 11 : 125 . For a perspective from a practitioner in the field of contemporary labor relations, see
- Geoghegan , Thomas . 1992 . Which Side Are You On? Trying to Be for Labor When It's Flat on Its Beck , New York : Plume Books . The book has become somewhat of a cult classic among labor lawyers and activists.
- Early . 1985 . "Dark Days for the Labor Movement," . Bosion Globe , June 5 : A19
- Sombart , Wemer . 1976 . Why Is There No Socialism in the United States? , White Plains, NY : M.E. Sharpe . [1905]
- Goldfield , Michael . 1989 . The Decline of Organized Labor in the United States , 27 – 32 . Chicago : University of Chicago Press .
- Janoski , Thomas H. and Hicks , Alexander . 1994 . The Comparative Political Economy of the Welfare State , New York : Cambridge University Press .
- Mishel , Lawrence , Bernstein , Jared and Schmitt , John . 2001 . The State of Working America, 2000-2001 , Ithaca, NY : ILR Press .
- Jorgensen , Andreas . 1997 . "Efficiency and Welfare Under Capitalism: Denmark vs. the United States, a Short Comparison," . Monthly Review , February : 34 – 42 .
- Weiler , Paul . 1983 . "Promises to Keep: Securing Workers' Rights to Self-Organization under the NLRA," . Harvard Law Review , 96 : 1769
- Rogers , Joel . 1990 . "Divide and Conquer: Further Reflections on the Distinctive Character of American Labor Laws," . Wisconsin Law Review , 1
- Friedman , Sheldon , Hurd , Richard , Oswald , Rudolph A. and Seeber , Ronald L. , eds. 1994 . Restoring the Promise of American Labor Law , Ithaca, NY : ILR Press .
- 1992 . "Law and the Shaping of the American Labor Movement," . Industrial and Labor Relations Review , 45 : 806 Forbath, Law and the Sheping of the America Labor Movement, pp. 3, 6. Thoughtful critiques of his work can be found in Nick Salvatore (Ed., review symposium),
- Fisk , Catherine . 1994 . "Still 'Learning Something of Legislation': The Judiciary in the History of Labor Law," . Law and Social inquiry , 19 : 151 , containing additional commentaries by Karen Orren, Victoria Hattam and William Forbath; and Archer, "Unions, Courts, and Parties."
- Brecher , Jeremy . 1997 . Strike!, edn , Boston : South End Press . Fora sampling of this "new" labor history, see
- Gutman , Herbert . 1976 . Work, Culture and Society in Industrializing America: Essays in Working-Class and Social History , New York : Alfred A. Knopf .
- Dawley , Alan . 1976 . Class and Community: The Industrial Revolution in Lynn , Cambridge : Harvard University Press .
- Montgomery , David . 1979 . Workers' Control in America: Studies in the History of Work, Technology and Labor Struggles , Cambridge : Cambridge University Press .
- Fink , Leon . 1983 . Workingmen's Democracy: The Knights of Labor and American Politics , Urbana, IL : University of Illinois Press .
- Gross , James A. 1974 . The Making of the National Labor Relations Board: A Study in Economics, Politics, and the Law, Vol. 1,1933-1937 , Vol. 1 , Albany, NY : State University of New York Press .
- 1981 . The Reshaping of the National Labor Relations Board: National Labor Policy in Transition, 1937-1947 , Albany, NY : State University of New York Press . ); and Gross, Broken Promise.
- Kilgour , James G. 1990 . "Can Unions Strike Anymore? The Impact of Recent Supreme Court Decisions," . Labor Law Journal , 41 : 259 268 Another industrial relations scholar goes so far as to assert that decisions by the NLRB and Supreme Court in the 1980s constitute a "fundamental change in the rules of the game as they apply to strikes …" John G. Kilgour sees this resulting from the combined effect of decisions allowing union members to resign and return to work during a strike [Pattern Makers League v. NLRB, 473 U.S. 95 (1985)]; to retain almost any advantage associated with seniority that an employer decides to grant them in return for returning to work [TWA v. Flight Attendants, 489 U.S. 426 (1989)]; and to be secure in their jobs provided they only pay the reduced fees of financial core members [Communication Workers v. Beck, 487 U.S. 735 (1988)]. See
- Gross, Broken Promise, p. x.
- Swidorski , Carl . 2000 . "Political Science and the First Amendment: Ignoring Labor's Role in the Struggle for Freedom of Expression," . New Political Science , 20 : 319 – 349 . This paper is part of a larger research project I am engaged in on the history of freedom of expression and association in the United States, including a manuscript on the role of the labor movement in the struggle for these rights. In this work, I am exploring the relationship between legal development and political practice, trying to offer an alternative to the dominant tendency of the literature to emphasize the development of legal doctrine and ignore or minimize its context. See
- 2000 . "The Courts, the Labor Movement and the Struggle for Freedom of Expression and Association, 1919-1941," . paper presented at the Annual Meeting of the Midwest Political Science Association . April 2000 , Chicago.
- 2000 . "The Dialectics of Repression and Reform: The Vinson and Warren Courts and Freedom of Expression," . paper presented at the Annual Meeting of the American Political Science Association . September 2000 , Washington, DC.
- Fink , Leon . "Labor, Liberty, and the Law," . 925
- Piven , Frances Fox and Cloward , Richard A. 2000 . "Power Repertoires and Globalization," . Politics and Society , 28 : 413 – 430 .
- Ibid., p. 414.
- Swidorski , Carl . 1994 . "Corporations and the Law: Historical Lessons for Contemporary Practice," . New Political Science , 28/29 : 167 – 190 .
- Peschek , Joseph G. and Grover , William F. , eds. 2001 . "Corporations and the Law," ” . In Voices of Dissent: Critical Readings in American Politics, , 4th edn , New York : Longman . revised and reprinted as
- Piven , Frances Fox and Cloward , Richard A. 1998 . "Eras of Power," . Monthly Revieiu , 49 : 23
- Montgomery , David . 1987 . The Fall of the House of Labor: The Workplace, the State, and American Labor Activism, 1865-1925 , Cambridge : Cambridge University Press . See, for example, David Montgomery's discussion of these issues in the context of craft unions during the 1870s and 1880s in his chapter, "The Manager's Brain under the Workman's Cap," in
- Pope , James Gray . 1997 . "Labor's Constitution of Freedom," . Yale Law Journal , 106 : 941 For a discussion of the decades-long campaign of the labor movement to use the Thirteenth Amendment's prohibition of involuntary servitude to gain constitutional rights for labor, as well as an argument to revive that political strategy, see
- 1999 . "The First Amendment, the Thirteenth Amendment, and the Right to Organize in the Twenty-first Century," . Rutgers Law Review , 51 : 941
- Frankfurter and Greene, The Labor Injunction, and Tomlins, The State and the Unions.
- Forbath, Law and the Shaping of the American Labor Movement, p. 61. This is a conservative estimate because, as Forbath points out, an accurate count of the total number of labor injunctions is impossible. Most were preliminary or temporary decrees with few reported opinions. Many court records have disappeared, especially at the lower court level, where most anti-strike decrees originated. Furthermore, ex parte orders frequently were issued without any trace in court dockets or files. For a discussion of these issues, see Forbath's Appendix B: "Approximating the Numbers of Labor Injunctions and Their Relation to Other Strike Statistics, 1880-1930," pp. 193-198.
- Goldstein, Political Repression in Modern America, and Frankfurter and Greene, The Labor injunction, pp. 89-105. In fact, injunctions could be so prohibitory as to almost defy belief. Mother Jones testified before the Commission on Industrial Relations of one case where the injunction forbid the supply of food to striking miners. See the testimony of Mrs. Mary (Mother) Jones before the US Commission on Industrial Relations, Final Report and Testimony Submitted to Congress, 11 vols, 64th Congress, 1st Session, S. Doc. 415 (Washington, DC: Government Printing Office, 1916) in Vol. 11 at 10,623.
- United States Strike Commission . 1895 . Report on the Chicago Strike of June-July, 1894 , 180 Washington, DC : Government Printing Office . . The injunction is contained in the report as Exhibit 5, following the testimony of Eugene V. Debs.
- Ibid, p. 143.
- Rabban , David . 1997 . Free Speech in Its Forgotten Years , 131 Cambridge : Cambridge University Press .
- Truox p. Corrigan, 257 U.S. 312 (1921). The Supreme Court invalidated at least 25 of these state laws on constitutional grounds. It also narrowly construed other state laws to limit their coverage and effectiveness. For further information on this, see Forbath, Law and the Shaping of the American Labor Movement, notes 95-97 at pp. 151-153 and Appendix C, "Judicial Treatment of Statutes Seeking to Protect Union Organizing and Action by Revising Equity and Common Law Doctrine." Also see Commission on Industrial Relations, Final Report 1, p. 44. This source contains an extensive list of court citations to such decisions prior to 1916.
- Witte , Edwin E. 1969 . The Government in Labor Disputes , 70 – 71 . New York : Arno Press . Dubofsky, The State and Labor, pp. 86-89. Also see Forbath, Low and the Shaping of the American Labor Movement, pp. 158-159; and [reprint]),
- Forbath, Law and the Shaping of the American Labor Movement, and Hattam, Lobor Visions and State Power.
- 1970 . Robert V. Bruce, 1877: Year of Violence , 317 Chicago : Quadrangle Books . The class implications were understood by the legal and political elites of the time. One of the first judges to issue such injunctions during the great railroad strikes of 1877, Walter Gresham, stated: "Our revolutionary fathers … went too far with their notions of popular government… Democracy is now the enemy of law and order and society itself and as such should be denounced."
- Dubofsky , Melvyn . 1994 . The State and Labor in Modern American , 11 – 12 . Chapel Hill : University of North Carolina Press . cited in
- Yates , Michael . 1987 . Labor Law Handbook , 11 Boston : South End Press .
- Pope , James Gray . 1987 . "Labor and the Constitution: From Abolition to Deindustrialization," . Texas Law Review , 1071 : 1086 310 U.S. 88 (1940). Also sec Carlson v. California, 310 U.S. 106 (1940) and AFL v. Swing, 312 U.S. 321 (1941). The pre-1930s approach is illustrated in American Steel Foundries v. Tri-City Central Trades Council (1921) where the Court had allowed a union to post only one picket at each entrance to a factory for the purpose of explaining the union's grievance against the company. No First Amendment issue of free speech was raised in the case. Picketing was equated with militancy and seen as inconsistent with peaceful persuasion. See Truax v. Corrigan, 257 U.S. 312 (1921). For the emblematic statement on this, see Atchinson, Topeka, and Santa Fc Railway v. Gee, 139 F. 582 (S.D. Iowa 1905), at 584, reported in : "There is and can be no such thing as peaceful picketing, any more than there can be chaste vulgarity, or peaceful mobbing, or lawful lynching."
- Yates . Lobor Law Handbook 21 . Also see Thomas v. Collins, 323 U.S. 516 (1945), where the Court noted that just as an employer has a First Amendment right to persuade employees not to join a union, the Constitution also extends this right to employees. For a discussion of these issues, see
- Lynd , Staughton . 1977 . "Employees Speech in the Private and Public Workplace: Two Doctrines or One?" . Industrial Relations Law Journal , 1 : 711
- Pope . "Labor and the Constitution," . 1095
- Pope . "Labor and the Constitution," . 1071
- Gross , James A. 1981 . The Reshaping of the National Labor Relations Board: National Labor Policy in Transition, 1937-1947 , Albany, NY : State University of New York Press . Labor-Management Relations Act, 61 Stat. 186 (1947). For a discussion of administrative and judicial interpretations of labor law between 1935 and 1947, see Tomlins, The State and the Unions, and
- Dubofsky , Melvyn . 1994 . The State and Labor in Modern America , Chapel Hill : University of North Carolina Press . Many scholars argue that the Taft-Hartley Act was a major setback for the labor movement. For example, see Yates, Labor Law Handbook, and Paul Weiler, "Promises to Keep." For dissenting views, see ) and Gross, Broken Promise.
- Gregory , Charles O. and Katz , Harold A. 1979 . Labor and the Law , 289 – 240 . New York : Norton .
- Yates . Labor Law Handbook 118 – 122 . ; and Pope, "Labor and the Constitution."
- Becker , Craig . 1998 . "Elections Without Democracy: Reconstructing the Right to Organize," . New Labor Forum , Fall/Winter : 104
- Klare . "Judicial Deradicalization," . 314
- Pope . "Labor and the Constitution," . 1083 – 1086 . However, in a few cases, courts or individual judges also linked the right to strike with the Thirteenth Amendment's prohibition of involuntary servitude. For some representative cases, see Arthur v. Oakes, 63 F. 310 (7th Cir. 1894); Mills v. United States Printing Company, 99 A.D. 606,91 N.Y.S. 185 (1904); Kemp i. Division No. 241, Amalgamated Association of Street and Electric Railway Employees, 255 IL 213, 99 N.E. 389 (1912); and Hall v. Johnson, 87 Or. 21, 169 p. 515 (1917).
- 304 U.S. 333 (1938). A fuller discussion can be found in Klare, "Judicial Deradicalization of the Wagner Act" and Tomlins, The State and the Unions, pp. 258-275.
- Yates . Labor Law Handbook 45 – 51 . For an overview of the issue, see
- Pope . "Labor and the Constitution," . 1089 – 1094 . See AFL v. Bain, 165 Or. 183, 106 p. 2d 544 (1940) (First Amendment); Kingston Trap Rock Company v. International Union of Operating Engineers, Local 825,129 N. J. Eq. 570,19 A. 2d 661 (1941) (Fifth and Fourteenth Amendment economic due process); and United States v. Petrillo, 68 F. Supp. 845 (1946) (Thirteenth Amendment). This line of reasoning appeared to develop furthest in the California and Alabama court systems where their respective Supreme Courts treated striking and picketing as constitutionally protected activities. See In Re Blaney, 30 CaI 2d 647, 184 p. 2d 895 (1947) and Hotel and Restaurant Employees v. Greenwood, 249 Ala 265, 30 So. 2d 696 (1947). For a more extensive discussion and comprehensive list of cases, see
- Fine , Sidney . 1965 . "Frank Murphy, the Tlwrnhill Decision, and Picketing as Free Speech," . Labor History , 6 : 99
- Fine , Sidney . 1984 . Frank Murphy: The Washington Years , Vol. 3 , Ann Arbor : University of Michigan Press .
- Boys Markets, Incorporated v. Retail Clerks Local 770, 398 U.S. 235 (1970). See Stone, "The Post-War Paradigm in American Labor Law," and Klare, "Critical Theory and Labor Relations Law."
- Rogers , Joel . "Reforming U.S. Labor Relations," ” . In Restoring the Promise of American Labor Law Edited by: Friedman , Sheldon . 17
- Wood , Ellen Meiksins . 1996 . "Modernity, Postmodenity, or Capitalism?" . Monthly Review , 48 : 21 – 39 . I do not mean to suggest that we are in some completely new era of globalization with all the unfounded assumptions and premises of many such arguments. For a more sobering assessment of globalization, see
- Piven , Frances Fox and Cloward , Richard . 1998 . "Eras of Power," . Monthly Review , 49 : 11 – 24 .
- Piven , Frances Fox . 2001 . "Globalization, American Politics, and Welfare Policy," . The Annals of the American Academy of Political and Social Science , 578
- Lindblom , Charles E. 1977 . Politics and Markets: The World's Political-Economic Systems , New York : Basic Books . Even some political scientists have recognized this. See ) for a classic statement of this position.
- Labor Party Discussion Paper, "Toward a New Labor Law," , p. 14.
- Rogers . "Reforming U.S. Labor Relations," ” . In Restoring the Promise of American Labor Law Edited by: Friedman . 26 27 A comparable strategic argument for a more limited form of statutory law reform based on meeting the needs of capital and society is made by Joel Rogers. He argues that labor must come to be seen as acting in the general interests of society. "Moreover, the reemergence of unions as innovative, moral, and rational social agents of general benefit will award them a fair degree of political capital with the general public. People will see the 'point' of unions more clearly than they do now." However, doing this is another matter. It would require labor to transform itself, which would mean "breaking some eggs" inside the labor movement.
- Brody , David . "Section 8(a)(2) and the Origins of the Wagner Act," ” . In Restoring the Promise of American Labor Law Edited by: Friedman . 42
- >For a sobering account of the institutional and cultural legacy of racism on the labor movement, see Goldfield, The Color of Politics.
New Political Science
Volume 25, 2003 - Issue 1