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THE SUPREME COURT ON UNIONS

WHY LABOR LAW IS FAILING AMERICAN WORKERS

Julius G. Getman

ILR Press

an imprint of

CORNELL UNIVERSITY PRESS

ITHACA AND LONDON

To the many students with whom I have traded ideas and from whom I have learned in fifty years of teaching and with special affection to those who are continuing to teach, write, and practice in the field

CONTENTS

Preface

Acknowledgments

Introduction

1. The Court and Union Organizing

2. The Supreme Court and Collective Bargaining

3. The Supreme Court and the Right to Strike

4. The Court and the Protected Status of Economic Pressure

5. The Supreme Court, Union Picketing, and Boycotts

6. Exclusivity and the Duty of Fair Representation

7. The Court and the Definition of Employee under the NLRA

8. The Supreme Court and Arbitration

Conclusion

Notes

Index

PREFACE

This book is the culmination of a long transformative process that began in the late 1950s when I was a student at Harvard Law School. While there I studied labor law with the master—Archibald Cox, from whom I learned that labor law issues were often legally complex and morally ambiguous. Cox taught the course with a magisterial neutrality that drew its essence from his many years as a scholar and his work as a neutral labor arbitrator, and its focus from the language and legislative history of the National Labor Relations Act.

Shortly after law school, I began my career as a labor lawyer as a staff attorney at the National Labor Relations Board (NLRB) in Washington. I began in the Advice Section dealing with difficult cases that were sent from the Board’s regional offices to Washington for disposition. Gradually I began to think of myself as an expert versed in the intricacies of doctrine and interplay of subsections—the special language of labor law.

When I began teaching labor law in 1963 at Indiana University School of Law in Bloomington, Archibald Cox provided the model and my NLRB experience the language by which I conveyed to students the moral ambiguity and analytic difficulties that lay hidden in labor law issues. I took pride in the thought of myself as a neutral labor law expert and was delighted when perplexed students asked me if I was prolabor or promanagement.

What changed my approach to labor law and teaching was contact with reality. It is the study of and participation in labor relations reality that has most shaped my career as a scholar and teacher.

My first significant contact with labor relations reality was the ten-year study of union organizing that I conducted with Professors Goldberg and Brett in the late sixties and early seventies. During the course of the study I interviewed employees, union organizers, management officials, lawyers, and consultants. I began to realize how different the law looked from the perspective of the workers in whose interest it was regularly justified but whose voice was seldom heard.

During the late seventies and early eighties I served as chief negotiator for the Connecticut State Police Union and played an active role in support of the union organizing campaign of Yale’s clerical and technical workers conducted by UNITE HERE. From 1986 to 1988 I served as national president of the American Association of University Professors, which among other things represents faculty members in collective bargaining. In the 1990s I did a major field study of the bitter strike by Local 14 of the United Paperworkers International Union (UPIU) against the International Paper Company. I interviewed permanently replaced strikers, replacement workers, company and union officials, the parish priest of Jay, Maine’s, largest church, and the town manager. I walked through deserted streets where half the homes had for sale signs out front. The more I learned about labor relations reality, the less persuasive I found the standard Labor Board analysis and the reasoning of the major court opinions that I taught in my labor law classes.

I finally retired in the summer of 2014 after fifty years of law teaching. I have long since given up the pose of neutrality and made clear to my students the values, assumptions, and factual conclusions that shape my analysis of labor law issues. I also make clear that I believe in the importance of unions and the value of collective bargaining. My scholarship and my participation in labor relations have taken a great toll on my youthful idealism and faith in the neutrality and expertise of federal judges and NLRB board members. In this book I seek to explain the analytic inconsistency, the repetitive bias, and the factual ignorance that have reshaped basic labor law and rendered it ineffective.

ACKNOWLEDGMENTS

I thank Terri LeClercq for her many suggestions, world-class editing, and continuing moral support; also for the benefit of our twenty-five-year discussion of the elements of good writing. Thanks also to Marsha Moyer, novelist and faculty assistant, for editing, typing, and perceptive criticism of the early drafts of the manuscript. Special thanks to my colleague and friend Professor Richard Markovits, who provided constant encouragement and significant editorial help. Thanks to my student assistant Tyler Somes for his great help with the form and substance of the footnotes; to Professor Justin Driver of the University of Chicago Law School for enjoyable discussion that led me to select the topic; to Fran Benson of Cornell University Press for encouraging me to write this book; and to the anonymous reviewers of the manuscript for their many useful suggestions. I also thank Susan Specter, the production editor, for capably shepherding the project, and Jamie Fuller for her careful copyediting.

INTRODUCTION

Labor unions and courts have rarely been allies. From their earliest efforts to organize, unions have been confronted with hostile judges and antiunion doctrines. In the early 1800s, when labor law was developed primarily by state courts, union activity and unions themselves were often declared to be criminal conspiracies to distort the market. It wasn’t until 1842 that the conspiracy doctrine was effectively challenged by Lemuel Shaw, a highly regarded member of the Supreme Judicial Court of Massachusetts, in the case of Commonwealth v. Hunt.¹

Shaw’s analysis pretty much ended the conspiracy doctrine, but it did not usher in an era of mutual accommodation between unions and courts. In the aftermath of the Hunt case, courts shifted from holding unions illegal by virtue of their antimarket goals to finding many of their activities, particularly strikes and boycotts, unlawful. As noted by Frankfurter and Greene in their classic book The Labor Injunction, courts were quick to find a variety of union goals and tactics unlawful. Courts regularly found unions guilty of violence or illegal coercion when their conduct involved nothing more than peaceful picketing or demonstrations. One court announced that 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. Findings of violence or other union impropriety invariably led to the issuance of an injunction often drafted by employer counsel forbidding a wide range of activity.² During the late nineteenth and early twentieth centuries, injunctions became a far more powerful weapon against unions than the criminal law had ever been. If union members or leaders violated the broad terms of an injunction, they could be held in contempt and jailed without the need for a jury trial. Injunctions also provided a speedy remedy for employers facing a strike or boycott who needed to find only a single, sympathetic judge to obtain an immediate temporary injunction to halt ongoing union activity.³

The Supreme Court was a minor player in labor relations until the last decade of the nineteenth century. But once it began to address labor relations issues, it did so by firmly supporting the traditional rights of employers. One of the Court’s first important labor decisions was In re Debs,⁴ in which it affirmed the right of a federal court to broadly enjoin a railroad strike and imprison those whom it found to have disobeyed its order. The case grew out of a strike called by the American Railroad Union led by Eugene V. Debs to protest a 25 percent wage cut.

Soon after the strike began, a federal judge ordered the defendants and all persons combining and conspiring with them, and all other persons whomsoever, absolutely to desist and refrain from in any way or manner interfering with, hindering, obstructing, or stopping any of the business of any of a list of railroads. Debs and four other union leaders were arrested and imprisoned on grounds that they violated the injunction. Speaking for a unanimous Court, Justice Brewer stressed the right of federal courts to issue injunctions when federal interests (in this case in the transportation of mail) were threatened. Indeed, it is more to the praise than to the blame of the government that, instead of determining for itself questions of right and wrong … and enforcing that determination by the club of the policeman and the bayonet of the soldier, it submitted all those questions to the peaceful determination of judicial tribunals … and invoked their consideration and judgment as to the measure.

Justice Brewer also insisted that the power to enjoin requires the power to punish for disobedience. To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency.

To further justify the propriety of the injunction and the imprisonment of the union leaders, Justice Brewer quoted the remarks of one of them: As soon as the employees found that we were arrested, and taken from the scene of action, they became demoralized, and that ended the strike. It was not the soldiers that ended the strike. It was not the old brotherhoods that ended the strike. It was simply the United States courts that ended the strike. The lament of the union leader was the boast of Justice Brewer. The outcome, by the very testimony of the defendants, attests the wisdom of the course pursued by the government, and that it was well not to oppose force simply by force, but to invoke the jurisdiction and judgment of those tribunals to whom … is committed the determination of questions of right and wrong.

In 1907, the Court expanded on the potential liability of unions in Loewe v. Lawlor,⁸ holding that the Sherman Antitrust Act, created to prevent business monopolies, could be employed against a union boycott.⁹ The case arose when a complaint charged members of the United Hatters of America with attempting to restrain trade through strikes and boycotts in order to unionize all of the workers in the industry. The lower court dismissed the complaint on the grounds that unions and their activities did not fall under the Act. The Supreme Court reversed, rejecting the argument that there was an implicit exemption for unions under the Sherman Act. The opinion rested in part on the broad language of the Act but even more on the Court’s perception of union goals as counter to public policy. And that conclusion rests on many judgments of this court, to the effect that the act prohibits any combination whatever to secure action which essentially obstructs the free flow of commerce between the states, or restricts, in that regard, the liberty of a trader to engage in business…. [E]very person has individually, and the public also has collectively, a right to require that the course of trade should be kept free from unreasonable obstruction.¹⁰ Under the Court’s reasoning, almost any union instigated strike or boycott constituted an antitrust violation.

The Court’s opposition to unions and support for employers also manifested itself in its rejection or strained reading of prounion acts of Congress. In Adair v. United States,¹¹ decided in 1908, the Court overturned an act of Congress that sought to outlaw discrimination against union members and yellow-dogcontracts¹² in the railroad industry. The Court declared that the Constitution protected the right of an employer to refuse to employ union members and to make nonmembership a requirement of the employment contract. It framed its opinion as an effort to protect the autonomy of workers.

The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it. So the right of the employee to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the services of such employee … and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land.¹³

Shortly thereafter, in Hitchman Coal v. Mitchell,¹⁴ the Court enforced an injunction to prevent mine worker organizers from interfering with existing contracts under which employees promised not to join a union during the course of their employment. Not only did the Court declare these contracts valid, but it insisted that the mine workers’ union, which was not a party to the contracts, nevertheless had to honor them by ceasing its organizing efforts. The Court equated peaceful efforts to persuade miners to join the union with breaches of the peace: In our opinion, any violation of plaintiff’s legal rights contrived by defendants for the purpose of inflicting damage, or having that as its necessary effect, is as plainly inhibited by the law as if it involved a breach of the peace. A combination to procure concerted breaches of contract by plaintiff’s employees constitutes such a violation.¹⁵

It remains striking how committed the Court was to freedom of contract—whether achieved by negotiation or by adhesion—and how little recognition it gave to freedom of association and the right to join unions, a right that it acknowledged in dicta but never used as the basis for decision.

In the aftermath of Hitchman, organized labor became increasingly active politically, seeking immunity from the antitrust laws and significant reductions in the use of injunction. In 1912 it played an important role in the election of Woodrow Wilson and a progressive Congress. The Wilson Congress amended the antitrust laws in the Clayton Act that contained two provisions responsive to labor’s concerns. Section 6 purported to grant unions an exemption from the antitrust laws, and Section 20 purported to eliminate the use of injunctions in labor disputes.¹⁶

Samuel Gompers hailed the amendments as the magna carta of labor, but he failed to take into account the ability of the Court to interpret legislation in accordance with its own views of desirable public policy. In 1921 in Duple Printing Press Co. v. Deering,¹⁷ the Court interpreted the amendments in a manner that rendered them ineffectual. The case involved union efforts to pressure Deering’s customers to support an effort to unionize a Deering facility in Michigan. The court of appeals held that the Clayton Act forbade the grant of injunction in such circumstances. The Supreme Court disagreed. It read Section 6 not as an effort to amend but rather as a restatement of existing law. And it read Section 20’s statement that no injunction should issue in any case between an employer and employees, or between employers and employees as applying only to disputes between an employer and its own employees.

The majority opinion made little effort to hide its distaste for legislation aimed at helping organized labor: Section 20 must be given full effect according to its terms as an expression of the purpose of Congress; but it must be borne in mind that the section imposes an exceptional and extraordinary restriction upon the equity powers of the courts of the United States and upon the general operation of the anti-trust laws, a restriction in the nature of a special privilege or immunity to a particular class, with corresponding detriment to the general public.¹⁸

Justice Pitney referred to the extreme and harmful consequences of permitting the union to continue picketing, which the court described as a general embargo … and a nationwide blockade.¹⁹ These terms—normally used to describe military actions—suggest that the unions were feared as an enemy force applying the tactics of warfare to disrupt the normal flow of business.

THE ERA OF PROUNION LEGISLATION

In the 1930s, when organized labor once again became politically powerful, it pressed its supporters in Congress to take steps to reduce the power of courts to stifle union activity through injunctions. In 1932 Congress passed the Norris-LaGuardia Act, which denied federal courts the ability to issue injunctions in labor disputes.²⁰ The carefully drafted statute made it almost impossible for federal courts to issue injunctions against peaceful picketing in a case involving or growing out of a labor dispute. And it defined labor dispute very broadly to include any type of possible union action regardless of whether or not the disputants stand in the proximate relation of employer and employee.

Legislation favorable to unions became a hallmark of the early New Deal, during which period the Railway Labor Act, the National Recovery Act, and the National Labor Relations Act were passed. Although the Court in 1935 declared the National Recovery Act unconstitutional,²¹ two years later by a five-to-four vote it upheld the National Labor Relations Act as a valid exercise of congressional power under the Commerce Clause of the Constitution.²² When the constitutionality of the Act was established, the Court continued to play a major role in interpreting the broad, sometimes vague, language of the Act.

Each of the acts regulating labor relations passed in the 1930s sought to promote the rights of workers to unionize, bargain collectively, and strike. Each had among its aims limiting the role of courts, both federal and state, in the formulation and effectuation of basic labor policy. Each provided for an administrative agency that had initial jurisdiction to interpret and enforce the statute. The advantages of agencies over courts were thought to be manifold. If a single agency developed labor policy and rules, it could help to createa single, uniform system of laws that the parties would understand. An agency appointed by the president would, it was thought, be composed of experts in labor relations, people not committed to the outmoded anti union views that predominated in the courts. And because the agencies would not have the injunctive powers of the courts, they would play an appropriately modest role in labor relations.

These are the concepts that gave rise to and shaped the Wagner Act, officially known as the National Labor Relations Act.²³ In its introductory passage, the Act announced as its primary goals: encouraging the practice and procedure of collective bargaining and … protecting the exercise by workers of full freedom of association and self-organization and designation of representatives of their own choosing for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

To permit employees free choice with respect to unionization²⁴ and to prevent employer interference and retaliation, Section 8 of the Act created five employer unfair labor practices. Subsection (1), the broadest of the Act’s prohibitions, made it an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in section 7. Section 8(2), aimed at company unions, made it an unfair labor practice for an employer to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. Section 8(3), aimed at preventing employer retaliation against union supporters, outlawed discrimination in regard to hire or tenure or to encourage or discourage membership in any labor organization.²⁵ Finally, to make certain that collective bargaining in fact followed from the exercise of employee choice, Section 8(5) of the Act made it an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees. The Act also provided for representation elections to be conducted by the National Labor Relations Board.

The role of the courts under the statute was intended to be as minimal as possible under our constitutional system. The U.S. courts of appeal, which could review Board decisions prior to enforcing them, were not to consider any objection that has not been urged before the Board. Nor were courts permitted to make independent findings of fact—the findings of the Board as to the facts if supported by evidence shall be conclusive. And the courts were largely excluded from the election process, set forth in Section 9, by which unions were chosen or rejected as exclusive representatives for a unit of employees.

The Act was passed during the heyday of belief in the potential of administrative agencies. Its drafters assumed that the Board would have the definitive voice in establishing national labor policy. The classic statement of the Board’s role was made some years later by Justice Frankfurter in holding that states were given only a limited power to deal with any issue that might be covered by the Act. Congress has entrusted administration of the labor policy for the Nation to a centralized administrative agency, armed with its own procedures, and equipped with its specialized knowledge and cumulative experience…. Courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board.²⁶

From 1935 to 1947, union membership grew from two million to twelve million. During this period, the NLRB and the courts worked in relative harmony as they struggled to define the terms of the NLRA and enunciate its basic policies. The Court had become less hostile to unions during the late thirties and early forties, with the addition of Roosevelt appointees including Justices Black, Murphy, Rutledge, Jackson, and Frankfurter.

AMENDING THE NLRA

During World War II, unions, which continued to grow in numbers and wealth, voluntarily agreed not to strike. When the war ended, so did the union’s no-strike pledge. Wages during the war had not kept pace with inflation, and many grievances had piled up during the no-strike period. A great wave of strikes ensued. According to one estimate, the post-war strike wave that swept the United States involved 180,000 autoworkers, more than half a million steelworkers, 200,000 electrical workers, and 150,000 packing house workers, along with hundreds of thousands involved in smaller strikes. In the year 1946 alone, 4.6 million workers had been on strike.²⁷

Within a short period, the power of unions became a polarizing political issue. In 1947, Congress with a new postwar Republican majority passed the Taft-Hartley amendments to the NLRA, overriding the veto of President Truman.²⁸

The Taft-Hartley legislation mainly left intact the rights granted to employees to form, join, and assist unions and to bargain collectively through representatives of their own choosing. But it added a series of union unfair labor practices. The Act’s key provision, Section 8(b) (4), outlawed a broad range of strikes, boycotts, and picketing characterized as secondary by the Act’s proponents. Taft-Hartley also provided for injunctions and civil actions against unions that engaged in secondary strikes or picketing.

The Taft-Hartley law narrowed the definition of employee, specifically excluding any individual having the status of independent contractor. It further eliminated supervisors, a term that it defined very broadly, from the definition of employees.²⁹ And it provided additional protection for employer speech by enacting Section 8(c), which stated that "the expressing of any views argument, or opinion … shall not