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Labor Party Discussion Paper
Toward a New
Labor Law

A proposal of the National Interim Committee of the Labor Party pursuant to the Workplace Bill of Rights Resolution adopted by the First Constitutional Convention, November 1998. (Discussion Draft, July 4, 2000)

"After more than half a century of treating labor rights as a means to the end of a free flow of commerce, what would happen if we were to get back on the track of treating labor rights as fundamental human rights that are valuable in and of themselves?"

© Labor Party 2000

The Problem

The bad news is that since 1979 the percentage of union workers in the United States has declined from 24% to 14%. The good news is that given the choice of joining a union or not, 48% of workers in this country would join. In other words, if workers were presented with a free, uncoerced choice, union membership would more than triple overnight.

Unfortunately, as unionists know from bitter experience, the National Labor Relations Act gives employers plenty of ways to prevent workers from exercising freedom of association. For just one example, the Act's guarantee of the right to organize is so poorly enforced that employers fire about 4% of all workers who have the nerve to vote union in a secret ballot election.1 With these odds, would you speak up for a union if you worked in a non-union workplace? Thanks to this kind of employer opposition, union organizing efforts can't keep pace with the loss of union jobs to outsourcing, automation, and job export.

So if the law is so bad, why not change it? For more than half a century, the labor movement has thrown energy and money into a series of unsuccessful campaigns for labor law reform. In 1949, labor's crusade to repeal the Taft-Hartley Act went down to defeat despite Democratic majorities in both houses of Congress and President Truman in the White House. And in 1978, a modest reform bill fell to a filibuster, again with Democrats holding both houses of Congress and the Presidency.

This record of failure will not be reversed with more money, better lobbying, or stronger electioneering. The fact is that — absent very extraordinary circumstances — business interests hold a veto power over labor rights legislation in this country. This is not because business outspends labor 15-1 on political campaigns, although it does. It is because business occupies what political scientist Charles Lindblom calls a "privileged position" in our political system. Public officials need cooperation from business, and they cannot take it for granted.2 While corporations can and do threaten to withhold cooperation or move away if government does not meet their demands, workers and unions almost never do likewise. (When was the last time you heard of any private-sector workers threatening to strike if government didn't meet their demands?) In short, government leaders can usually afford to stiff unions, but they must do what it takes to obtain the cooperation of business.3

This does not mean that labor always loses; unions can win legislative change when business opposition is divided or less than fully committed — for example on bills pertaining to general labor issues like unemployment insurance and the minimum wage. But on union-related issues, where business is united and committed, the success rate has been minimal.4 In fact, Congress has never passed a major labor rights statute until after unions and workers have demonstrated the need for change by withholding cooperation through strikes and boycotts. This generalization holds true from the Erdman Act of 1898 (the first railway labor law), which was a self-conscious response to the Pullman Strike of 1894, to the Wagner Act of 1935 — the most recent major labor rights statute, which was a reaction to the massive strike wave of 1934.5

A Solution?

In November 1998, the delegates to the first constitutional convention of the Labor Party declared that "we have wrongly come to accept that at work we are not entitled to the rights and privileges we normally enjoy as citizens." The convention then proceeded to resolve that the "Labor Party rejects the status quo of today's workplace where workers are forced to abandon their Constitutional Rights in order to earn their living, and are as a consequence subject to the tyranny of the corporation."

Maybe, instead of beating our heads against the wall of labor law reform, we should go back to constitutional fundamentals. Imagine that in place of our half-century-old labor law — with its government-determined bargaining units and government-certified bargaining representatives, we had a labor law based on the constitutional rights of free speech, assembly, and labor freedom. It works like this. A group of workers want to form an organization. They call a meeting (freedom of assembly), discuss their options (free speech) and decide they want to deal with their employer as a group (labor freedom). The employer is legally obligated to respect their choice and to deal with the group or its chosen representatives. There is no requirement of majority support, no organizing campaign, no firings, and no election. If the employer refuses to make any concessions, the workers are free to request help (free speech) from their co-workers, from workers at other companies, and from the public. They can call a strike (labor freedom), urge their co-workers to join in (free speech), and form large and spirited picket lines at the company entrances (freedom of assembly). If the employer remains aloof, they can call for help (free speech) from members of stronger organizations, who can refuse to handle, transport, or work on the employer's supplies or products (labor freedom). They can urge the public (free speech) to withdraw patronage from the employer and from anyone who helps to maintain the employer's royal stance by supplying it with materials, selling its products, serving on its Board of Directors, or performing any other service.

This quick sketch leaves many questions unanswered. But before trying to get more specific about the proposal, we would like to explain where it came from. It is not some utopian vision born in the heads of dreamers. On the contrary, it has venerable roots not only in the labor movement, but in the constitutional and statutory law of the United States.

Back to the Future

We have been laboring so long under the National Labor Relations Act that it is hard to envision a comprehensive alternative. One way to attack this problem is to turn the clock back to the period before the NLRA apparatus took over and try to imagine other possible outcomes. In the early 1930s, the main national labor statute was the Norris-LaGuardia Anti-Injunction Act. Unlike the NLRA, the Norris-LaGuardia Act was the product of a long period of mobilization and agitation by the labor movement. It barred the federal courts from issuing injunctions against peaceful strikes, boycotts (including secondary boycotts), and picketing (including peaceful mass picketing) in labor disputes. It also barred federal courts from enforcing yellow dog contracts by injunction or otherwise. In Section 2, Congress set out the existing relationship between labor and owners of property in the United States:

Whereas, under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment . . .

Congress then went on to lay out the solution:

wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .

If this statement were effectively enforced in law today, we would be in a position to triple the size of the labor movement overnight. Of course, the Norris-LaGuardia Act by itself did not fully enforce the statement. Its operative provisions were designed to eliminate the main obstacles to labor freedom in 1932, namely labor injunctions and yellow dog contracts. But the Norris-LaGuardia Act put the development of labor law on a track toward the effective enforcement of the fundamental human rights of workers.

Suppose the labor law had remained on the fundamental rights track. What might it look like today? To answer this question, we need to know more about the fundamental rights track. It did not begin with the Norris-LaGuardia Act. To unionists at that time, the Act merely recognized and protected worker rights that were already guaranteed by the United States Constitution.

The Labor Amendment
To the United States

If you mention the labor amendment to the United States Constitution today, most people get a puzzled look on their faces. They know that the first amendment guarantees the right of free speech, and they may even know that the same amendment secures the right of assembly. But few have ever heard of the labor amendment. It takes awhile before they realize that you are talking about the thirteenth amendment, which provides: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." At that point, they are likely to ask what in the world the thirteenth amendment could possibly have to do with labor rights today; after all, the amendment was intended to do away with slavery, a goal that was accomplished more than a century ago.

But according to the Supreme Court, the purpose of the thirteenth amendment was not simply to eliminate slavery, but "to make labor free by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit."6 Before the NLRA, unionists understood from their own experience that in a modern industrial economy there was no way to prohibit "that control by which the personal service of one man is disposed of or coerced for another's benefit" without the rights to organize, strike, boycott, and picket.7 "The truth is that in complex modern industry," said Samuel Gompers, "the only really free labor is organized labor. The only workers not laboring under terms and conditions arbitrarily imposed upon them from a source wholly foreign to themselves, are the organized workers." Most courts disagreed. They held that the thirteenth amendment protected only the individual right to quit work. But labor leaders stood their ground. Gompers ridiculed the idea that a lone worker could avoid employer control by quitting: "just imagine what a wonderful influence such an individual would have, say for instance [on] the U.S. Steel Corporation."8 He acknowledged that the individual right to quit might have provided some protection in the nineteenth century, when the individual workman owned his own tools and "made a complete article in his own trade or calling," but since then, the individual had "lost his identity and lost his power."9 Thus, the rights to organize, to strike, and to boycott were "nothing more than the application of the constitutional bill of rights to the conditions of our time."10 His point was that labor rights, like other constitutional guarantees, must be applied to contemporary conditions if they are to retain their vitality.

The AFL did not wait for judicial approval to put its constitutional views into practice. Beginning in 1909, it was the official policy of the American Federation of Labor that a worker confronted with an unconstitutional injunction had an "imperative duty" to "refuse obedience and to take whatever consequences may ensue."11 Under this policy, thousands of workers defied unconstitutional injunctions. Unfortunately, judges did not yet understand that their injunctions were unconstitutional, and many law-abiding workers were imprisoned for violating illegal injunctions. According to historians, their principled resistance exposed the injustice of the labor injunction and led to the passage of the Norris-LaGuardia Act.12

When the Norris-LaGuardia Act was passed, labor's leading constitutional thinkers maintained that it endorsed their view of the thirteenth amendment.13 It doesn't take any legal training` to see why. If, as Congress declared, "the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor," then the right to organize is obviously basic to human freedom, and its denial amounts to involuntary servitude. Senator Norris defended this view, charging that anti-strike injunctions brought about "slavery"14 and "involuntary servitude on the part of those who must toil in order that they and their families may live."15

From Labor Freedom
To Freedom of "Commerce"

After the Norris-LaGuardia Act was passed, workers and unions for the first time enjoyed a degree of freedom from anti-strike, anti-picketing, and anti-boycott injunctions. But employers continued to interfere with the right to organize by discriminating against unionists and establishing company-dominated unions. The passage of the National Industrial Recovery Act in 1933 raised workers' hopes because of its section 7(a), which appeared to prohibit employers from discriminating against unionists or forcing workers to join company unions. But the Roosevelt administration did not enforce the Act, leaving it up to workers to enforce their own rights. In 1934, the country was shaken by four strikes that erupted into open class conflict. West coast Longshoremen, Minneapolis truckers, Toledo automobile workers, and southern textile workers staged strikes that escalated into pitched battles in which thousands of workers from many trades and industries joined the strikers in defending their picket lines against police, vigilantes, and soldiers. In early 1935, nationwide strikes of automobile and rubber workers were narrowly averted. Then, in the famous Schecter Poultry case, the Supreme Court struck down the National Industrial Recovery Act, leaving President Roosevelt facing a strike wave with no industrial policy in place. He turned to Senator Robert Wagner of New York, who had drafted the bill that would soon become the National Labor Relations Act.

The centerpiece of Wagner's bill was section 7, which guaranteed the right of employees "to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 8 of the bill went beyond the Norris LaGuardia Act in prohibiting employers from interfering with these rights by coercing workers, discriminating against unionists, or establishing company-dominated unions. In addition, to make sure that the courts did not construe the Act against labor, section 13 directed that "Nothing in this Act shall be construed so as either to interfere with or impede or diminish in any way the right to strike."

These provisions continued on the fundamental rights track of the Norris-LaGuardia Act. Like Senator Norris before him, Senator Wagner charged that the non-union workplace resembled slavery, and promised that his bill would bestow upon workers "emancipation from economic slavery and . . . an opportunity to walk the streets free men in fact as well as in name."16 Andrew Furuseth, President of the Seamen's Union and the AFL's deepest constitutional thinker, begged Wagner to implement these sentiments in law by grounding his bill on Congress' power to enforce the thirteenth amendment.17 But Wagner had been convinced by lawyers that the bill should be based on Congress' power (granted in Article I, section 8 of the Constitution) to regulate interstate commerce. Wagner sincerely believed that his bill would end industrial slavery; but he also believed that it would bring about industrial peace, thus facilitating the free flow of interstate commerce. To Wagner, there was no contradiction between these goals; genuine labor-management cooperation could come about only on a foundation of worker freedom.

What the Senator did not realize was that his reliance on the commerce clause would tilt the interpretation of his statute against worker freedom. The first big question was whether the Act was constitutional. If it had been grounded on the thirteenth amendment, the issue would have focused on whether the rights to organize and engage in concerted activity were necessary for labor freedom. But instead, government lawyers defended the Act as an exercise of Congress' power to "control" and "punish" strikes under the commerce clause.18 Judging from the lawyers' arguments, the Wagner Act might have been entitled the "Wagner Anti-Strike Law." Workers' rights were to be protected not because they were important in themselves, but because protecting them would help to eliminate strikes. In order to drive home the point that strikes interfered with interstate commerce, government lawyers quoted the same labor injunction cases that, according to Senator Norris, Senator Wagner, and the AFL, imposed involuntary servitude on workers. They argued that strikes "disrupted" markets, "crippled" business, and caused "disorganization, obstruction, or even paralysis of interstate commerce."19 They praised federal military actions against strikers as "efforts to bring about industrial peace."20

As numerous historians have pointed out, it is unlikely that the lawyers' commerce clause arguments had any effect in causing the Supreme Court to uphold the NLRA. Instead, the Court was responding to outside pressures. Workers across the country forcefully demonstrated the need for a national labor law by staging a spectacular wave of sit-down strikes. President Roosevelt threatened to "pack" the Court with six new Justices. Under this pressure, the Court would just as likely have upheld the law under the thirteenth amendment (which fit President Roosevelt's own rhetoric of ending "economic slavery" and "economic royalism") as under the commerce clause. Instead, however, the workers' movement for fundamental labor rights was channeled by lawyers and politicians into a massive expansion of the commerce power. For the first time in history, the Supreme Court held that the commerce power could be used to regulate intra-state manufacturing operations.

Although the commerce clause strategy had little effect on the upholding of the NLRA, it had a huge impact on the interpretation of the new law. Having been introduced to the NLRA as an anti-strike measure, judges soon began to interpret its ambiguous provisions in line with their thinking on what would most effectively prevent strikes. Within a few years of its passage, the Supreme Court had ruled that employers could permanently replace workers who dared exercise their section 7 right to strike,21 that an employer could fire its entire union workforce in retaliation against the union's threat to strike even though the collective bargaining agreement expressly gave the union the right to strike over disagreements in interpretation,22 and that an employer that flagrantly violated the workers' right to organize, provoking them to stage a sit-down strike in protest, could then not only discharge the strikers and obtain their imprisonment for violating an injunction, but also pick and choose who would be fired and imprisoned, taking back those who renounced the union while firing and imprisoning those who remained loyal.24 Since worker rights had no value in themselves, employers that violated them were guilty of no great offense. Despite statutory language empowering the Board to "prevent any person from engaging in any unfair labor practice" and to order violators not only to cease and desist, but also "to take such affirmative action . . . as will effectuate the policies of this Act," the Court held that the Board could not penalize employers so as to prevent them from committing future violations.25

The commerce clause strategy backfired even more spectacularly in 1947, when the Taft-Hartley Act was passed under the constitutional authority of the commerce clause. Unionists branded the Act as "The Slave Labor Law," but the commerce approach to labor legislation was already too well entrenched. Among other things, Taft-Hartley amended the NLRA to ban secondary boycotts and limit the subjects over which unions could bargain.

It would take a book to list all the bad consequences of giving the commerce-protecting purpose of the Act priority over the freedom-protecting purpose. We'll settle for just one more example. As you recall, the Norris-LaGuardia Act barred federal courts from enjoining peaceful strike and boycott activities in labor disputes. Yet today, union workers can be enjoined from striking 99 percent of the time, except in the "window" periods between contracts.26 This is because the Supreme Court decided — without any indication from Congress — that it was time to repeal part of Norris-LaGuardia's ban on injunctions so that courts could enforce no-strike clauses in collective bargaining agreements.27 And just in case some freedom-loving union had not agreed to a no-strike clause, the Supreme Court decided that it would "imply" (meaning "create") one for it.28 So much for the freedom from government by injunction.

After more than half a century of treating labor rights as a means to the end of a free flow of commerce, what would happen if we were to get back on the track of treating labor rights as fundamental human rights that are valuable in and of themselves?

The Labor
Party Proposes . . .

We start from the proposition that workers must enjoy effective freedom of speech, effective freedom of association, and effective freedom of labor. These three freedoms are already guaranteed, in theory, by the first and thirteenth amendments to the U.S. Constitution. In addition, they have been embodied in the Norris-LaGuardia Act and in section 7 of the National Labor Relations Act. In practice, however, the law does not permit the effective exercise of these freedoms.

By "effective," we do not mean that workers must win all of their protests. We mean that in actual practice: (1) workers must be able to communicate with one another and with the broader public free from government and employer censorship; (2) workers must be able to associate together in forms chosen by themselves and not by government or employers; and (3) workers must be able to exercise control over their personal labor power. If all of these conditions are fulfilled, workers may or may not succeed in a particular protest. For example, even if a group of employees manage to shut down an employer completely, they have only equalized the contest. Now, each side can veto production — instead of just the employer. With this in mind, here are the minimum rights necessary to make possible effective freedom of speech, effective freedom of association, and effective freedom of labor:

FREEDOM OF SPEECH: Up to now, courts have privileged employer property rights over the workers' free speech rights. If workers are to enjoy effective freedom of speech and expression, this must change in at least three ways:

  1. Workers must enjoy freedom of speech on as well as off the employer's property. Under current law we have freedom of speech on public property. On private property the owners of the property generally determine who can speak and who cannot. Workers surrender their first amendment rights when they enter the workplace. Unfortunately for us, the privately-owned work site is increasingly the only place where it is possible to speak with workers as a group. Gone are the days when most workers lived near their work sites and could be reached off the employer's property. But union representatives and co-workers from other enterprises cannot speak with workers at their work sites because the Supreme Court has determined that the employer's property rights trump the workers' right of self-organization. According to the Court, the NLRA permits the employer to exclude anyone it wants even if there is no legitimate business reason for doing so. Meanwhile, we supposedly have the "reasonable" alternative of trying to track down individual workers by their license plate numbers, or of buying advertisements in general-circulation newspapers. This ridiculous "alternative" only demonstrates the Court's contempt for our rights. It does not take any leap of imagination to recognize that when an employer has the power to effectively determine who will — and who will not — speak to "its" workers, the employer is acting as a master and it is putting the workers in the position of dependent slaves.

  2. Workers must be free from employer as well as government censorship except where job performance is at stake. The NLRA does prohibit an employer from interfering with communication among its employees about "mutual aid or protection," but the Supreme Court has created an exception for "disloyal" speech, which may include anything from impolite criticism of the employer to commentary on issues that courts think are for management alone (like product selection or quality). For example, judges have held that a worker who participates in a march protesting the employer's labor policies can be fired for disloyalty merely because some marchers were urging a boycott of the employer. But isn't a peaceful boycott exactly the kind of "concerted activity for mutual aid or protection" that the NLRA was intended to protect? When an employer censors a worker's speech for reasons unrelated to job performance, it is acting as a master and putting the worker in the position of a slave.

  3. The people — including workers — must be free to express themselves by withholding patronage and requesting others to withhold patronage. In theory, working people can express solidarity by withholding patronage from employers who are unfair to labor. Unfortunately, many employers do not sell their own products directly to consumers. Often, the only way for people to cast effective "consumer votes" is to request retailers to remove the offending employer's products from the shelves, and then boycott the retailer if it refuses. But the NLRA prohibits unions from peacefully picketing such retailers on the ground that the retailer is a "neutral" in the dispute between the union and the offending employer.29 In other words, the NLRA seeks to protect the "neutral" by preventing the union from informing the public that the "neutral" is serving as a retail outlet for the unfair employer. If consumers don't know about the connection, then they cannot express their disapproval, and the "neutral" can continue to profit from its sale of the unfair employer's products. When workers are prohibited from effectively communicating information about employers, then they are treated more like slaves than like citizens.

FREEDOM OF ASSOCIATION: Under the NLRA, the government decides what groups of workers may assemble together for collective action and bargaining. If workers are to enjoy effective freedom of association, this must change in at least two ways:

  1. Any size group of workers can form an association, including a union, and present and resolve grievances and make agreements with the employer. According to the NLRB, the NLRA does not fully protect the rights of a union that has not established majority support in a government- or employer-approved bargaining unit. A member of a non-majority union can be fired for insisting that his or her union steward be present at a grievance conference. But freedom of association is not limited to groups that have majority support. When an individual worker is forced to face the collective power of a corporate employer without the support of his or her union, she is placed in the position of a helpless slave dealing with a powerful master.

  2. Workers, not the government or the employer, must determine the scope of their own associations for purposes of collective action and bargaining. When we think about freedom of association, this point seems obvious. After all, what is collective bargaining other than a group of workers getting together to bargain with the employer? But the NLRA is not based on freedom of association. Instead of protecting the right of workers to join together and deal with the employer, the Act establishes a system of government-approved "bargaining units." The Board and the courts decide which workers will be in which units, and they give the desires of the employer at least as much weight as those of the workers. When workers cannot determine who they will associate with for mutual aid and protection, they are denied a basic right of citizenship.

FREEDOM OF LABOR: Under current law, the workers' freedom of labor is subordinated to employer property rights. For workers to enjoy effective freedom of labor, this must change in at least four ways:

  1. The right to strike must include the right not to lose one's job permanently to a strikebreaker. Under current law, workers may not be fired for striking, but they may be "permanently replaced" by strikebreakers even if the employer has no need to offer permanent employment in order to obtain sufficient strikebreakers to operate. The employer's property right "to protect and continue his business" trumps the workers' right to strike.30 In practice, then, an employer can permanently replace strikers as a way of punishing them for exercising their "right" to strike. When an employer has the power to punish workers for exercising their fundamental rights, the employer is acting as a master and the employee is a slave whose rights mean nothing.

  2. The freedom of labor must include the right to refuse to contribute personal labor to enterprises that assist unfair employers by, for example, supplying them with parts, distributing their products, or financing their operations. Under the NLRA, companies that deal with unfair employers are considered to be innocent "neutrals" that should be insulated against worker protest. Workers who refuse to handle the products of an unfair employer are seeking, as Samuel Gompers put it, "to exercise control of their own labor power, . . . to control their own movements, the expending of their own efforts, the giving of that service which constitutes their voluntary contribution to the welfare of society."31 Even if a worker is not personally involved in handling the unfair employer's product, he or she is helping her "neutral" employer to continue "business as usual" with the unfair employer. When a "neutral" employer can compel a worker to contribute his or her personal labor to assist another employer in violating the human rights of its employees, the employer is placed in the position of a master and the worker in that of a slave with no control over his or her personal labor.

  3. The freedom of labor must include the right to bargain with and to strike and boycott against the company that actually controls terms and conditions of employment. Under the NLRA, companies can insulate themselves against worker protest by subcontracting work and creating artificial corporate boundaries. For example, when employees of the Hearst Corporation's Baltimore radio station picketed at the Hearst Corporation's Baltimore newspaper, they discovered that they were guilty of engaging in a secondary boycott against the "neutral" newspaper. Why? Because the radio station and the newspaper were — on paper — separate corporations; it just happened that both were wholly owned by Hearst. Of course, in the real world, the Hearst Corporation can spread the costs of the radio strike over all of its operations; the strike does not exert serious pressure unless Hearst is feeling its effects. When employers can use corporate formalities to render workers' rights meaningless, the employer is acting like a master and the employee is reduced to slavery.

  4. The freedom of labor must include the right to withhold personal labor in solidarity with workers in other countries. With corporations organized on a multi-national basis, effective labor freedom necessarily requires the right to combine across borders. But many efforts at international solidarity run up against the secondary boycott prohibition. When American longshoremen joined other dock workers around the world in refusing to unload cargo from the Neptune Jade, they were hit with secondary boycott charges. When corporations are permitted to organize multinationally, while workers are limited to local protests because of artificial corporate boundaries, then corporations become arrogant masters while workers are reduced to dependent slavery.

An Open Question

If we were to put labor law back on the track of fundamental rights, a very important issue would quickly arise. Under section 9 of the NLRA, a union can become the exclusive representative for all of the workers in a government-determined bargaining unit by demonstrating majority support in a representation election. The presence of a majority union extinguishes the right of dissenters to bargain as individuals or to form their own, minority unions. This principle of exclusive representation was enacted to prevent employers from playing off individual workers and minority unions against the majority representative. But it is unclear whether section 9 helps or hurts worker freedom. Section 9 does not come close to eliminating divide-and-conquer opportunities, and it probably creates some of its own. It is very rare that a single "exclusive representative" covers all of the employees of a single employer. More commonly, an employer faces a number of "exclusive representatives" and non-union units that can be played off against each other. Moreover, thoughtful, pro-union analysts have argued that exclusive representation can give employers additional divide-and-conquer opportunities. These analysts contend that when a majority union is insulated against competition, its officers may tend to ignore the interests of minorities.32 If so, then employers can exploit the situation to divide workers along lines of race and sex.

It is true that the U.S. labor movement has long relied on the principle of exclusive representation, and it should not be abandoned without thorough deliberation. However, the fact that the overwhelming majority of industrial countries reject exclusive representation, and most of them have much higher union density than the United States should give us pause. At a minimum, we should reassess our commitment to the principle, and consider possible alternatives and modifications that might better serve labor freedom.

From Here to There

To sum up, the Labor Party proposes that instead of pinning our hopes on legislative reform, we get back to constitutional fundamentals. This approach has three big advantages and one big drawback. The advantages are: (1) the first and thirteenth amendments already exist, and can be utilized right away; (2) these constitutional provisions trump statutory law, so that any legislation to the contrary (for example, the secondary boycott prohibition of the Taft-Hartley Act) is null and void; (3) our written Constitution belongs to the people, not the legal profession, which means that the people can interpret it and enforce it against the powers that be.

The big drawback is that the courts have never accepted many of our constitutional claims, and they have specifically rejected some of them. If we proceed to exercise our constitutional rights, we are likely to encounter opposition from legal authorities and courts. This is a serious problem, and no-one should take it lightly. We are not, however, the first to face this difficulty. The abolitionists who established the underground railway, the women suffragists who insisted on voting, the civil rights activists who sat in at segregated lunch counters, and the workers who staged sit-down strikes in the 1930s all suffered from official hostility. In 1919, the delegates to the annual convention of the American Federation of Labor dealt with this problem by resolving unanimously to "stand firmly and conscientiously on our rights as free men and treat all injunctive decrees that invade our personal liberties as . . . illegal as being in violation of our constitutional safeguards, and accept whatever consequences may follow."33

A half-century ago, with the labor movement at a crossroads, John L. Lewis thundered his support for this policy. The big issue at the annual convention of the American Federation of Labor was whether to engage in constitutional resistance against what unionists were calling the Taft-Hartley "Slave Labor Act." After an initial outburst of saber-rattling, the AFL's top leadership had lost enthusiasm for the struggle. John L. Lewis turned his oratorical skills to reviving the spirit of resistance:

This Act was passed to oppress labor, to make difficult its current enterprises for collective bargaining, to make more difficult the securing of new members for this labor movement, without which our movement will become so possessed of inertia that there is no action and no growth, and in a labor movement where there is no growth there is no security for its existence, because deterioration sets in and unions, like men, retrograde. . . . I wonder what built up the labor movement in this country? Was it protecting laws and statutes that protected the organizers of our movement when they went out to the meetings? Oh, no! The founders of our Federation had no such protection. They had to fight for the right to be heard. They had to fight for the right to hold a meeting, and men had to sacrifice and sometimes die for the right to join a union. . . .And what you are doing today [by complying with Taft-Hartley] — you are repealing the 1919 injunction policy . . . and you are humbling yourselves in abasement before the return of government by injunction.34

AFL Secretary-Treasurer George Meany delivered the administration's response. It was a complete negation of the very idea that labor could develop and live by an independent interpretation of the constitution. Despite his public position that Taft-Hartley was unconstitutional, Meany claimed that it was "the law of the land":

Whether you like it or not, whether the National Association of Manufacturers and the representatives of the reactionary employers bought the Republican party or not, as someone seems to think, the fact remains that they counted the votes in Washington, and the Taft-Hartley Law is on the statute books. No one asked for a recount. Our representatives were there when the votes were cast, and no matter what the reason, whether it is the sinister reason attributed here today or not, the fact remains that they did pass this law. It is now the law of the land."35

With the Cold War in full swing, and the labor movement singled out as a hotbed of communism, constitutional resistance seemed un-American to Meany. "We know it is a bad law," he continued, "but it was placed on the statute books by our representatives under the American democratic system, and the only way it is going to be changed is by our representatives under that system."36 Teamster President Daniel Tobin agreed that this "is a law that we will resent, but there is a certain legal procedure to change the law, and it isn't by revolution."37 Meany's speech was greeted with thunderous applause, and his position prevailed by a wide margin. For the next half century the movement dutifully lobbied and electioneered for labor law reform. The thirteenth amendment theory of labor liberty lay dormant as union lawyers paid it no more than lip service, the Supreme Court dodged the issue, and labor leaders gradually forgot about it as they became increasingly dependent on government protection.

Now, at the turn of the millennium, many labor activists and leaders have come to share Lewis' view that Taft-Hartley is indeed causing the movement to languish and decline. In the meantime, the chilling pressure of the Cold War has lifted. And, last but not least, the recent change in leadership at the AFL-CIO makes it possible to look back on the most famous lines of Lewis' 1947 speech with more optimism than would previously have been possible. The Mine Workers' President had threatened to resign from the Federation's Executive Council if it failed to defy Taft-Hartley. In regard to that threat, he declared:

Perhaps . . . you will say "John L. Lewis is trying to hold a gun to the head of the convention." That is not true. I don't think anyone can hold a gun to the head of this convention. . . . As far as that is concerned, on this particular issue, I don't think that the Federation has a head. I think its neck has just grown up and haired over."38

Where an employer has flagrantly violated labor rights, and where the law prohibits the victims from effectively protesting, we might do well to recall Samuel Gompers' words: "History honors none above those who, in the past, have set themselves against unjust laws, even unto the point of rebellion. The Republic of the United States is founded upon defiance of unjust law. . . . The American Federation of Labor and its president have declared that manifestly unjust decisions of courts must be defied, and there is no disposition to recant."39

For further information, or to report comments and suggestions, contact Ed Bruno (telephone: 617-531-0901, fax: 617-531-0902, e-mail:

(Click on the footnote number to return to text.)

1. See Paul Weiler, Promises to Keep: Securing Workers' Rights to Self-Organization Under the NLRA, 96 Harv. L. Rev. 1769, 1781 (1984) (estimating that 1 in 20 pro-union voters in representation elections had been discharged in retaliation for union activity); Lalonde & Meltzer, Hard Times for Unions: Another Look at the Significance of Employer Illegalities, 58 U. Chic. L. Rev. 953, 990-92 (1991) (estimating that 1 in 36 pro-union voters in representation elections had been discharged in retaliation for union activity); Weiler, Hard Times for Unions: Challenging Times for Scholars, 58 U. Chic. L. Rev. 1015, 1023-24 (1991) (arguing that any estimate based on official determinations of retaliatory discharge is likely to understate the actual number because only a fraction of such discharges are litigated to a conclusion).

2. Charles Lindblom, Politics and Markets 175 (1977).

3. See id. at 176.

4. See Richard Freeman & James Medoff, What Do Unions Do? 198-204 (New York: Basic Books, 1984) (study of 280 bills introduced in Congress between 1947 and 1980, showing a union success rate of 58% on "bills pertaining to general labor issues," like unemployment insurance and minimum wage, as compared to a success rate of 20% on "bills relating to labor law" and "union-related legislation").

5. See James Gray Pope, The First Amendment, the Thirteenth Amendment, and the Right to Organize in the Twenty-first Century, 51 Rutgers L. Rev. 941, 944-45, 969 (1999).

6. Bailey v. Alabama, 219 U.S. 219, 241 (1911) (striking down Alabama's debt peonage law).

7. For detailed descriptions of this viewpoint, see William E. Forbath, Law and the Shaping of the American Labor Movement 135-41 (1991); James Gray Pope, Labor's Constitution of Freedom, 106 Yale L.J. 941, 962-66, 978-81(1997).

8. Debate Between Samuel gompers and Henry J. Allen at Carnegie Hall, New York, May 28, 1920 15 (1920).

9. Testimony of Samuel Gompers, President, American Federation of Labor, before Joint Labor and Industries Committee of the New York State Legislature on the Duell-Miller industrial relations (anti-strike) bill, Assembly Chamber, Capitol, Albany, N.Y., March 1, 1922, 29 American Federationist 253, 260 (1922).

10. Samuel Gompers, Union Labor and the Enlightened Employer, 28 American Federationist 469, 472 (1921).

11. American Federation of Labor, Report of the Proceedings of the Twenty-Ninth Annual Convention 313-14 (1909).

12. See William E. Forbath, Law and the Shaping of the American Labor Movement 158-63 (1991).

13. See American Federation of Labor, Report of the Proceedings of the Fifty-First Annual Convention 460-63 (1931) (reporting statements by Andrew Furuseth and Victor Olander of the Seamen and Matthew Woll of the Photo-engravers as to the incorporation of thirteenth amendment principles into the Norris bill, which later became the Norris LaGuardia Act).

14. Limiting Scope of Injunctions in Labor Disputes: Hearings' before the Subcommittee of the Senate Committee on the Judiciary, 70th cong., 1st sess. (1928) at 672 (commenting, with regard to the right to persuade workers to strike: "We have got to leave that liberty to the citizen or we will have slavery, it seems to me, and we can not inquire into his motive, it seems to me, if he does it peacefully").

15. 75 Cong. Rec. 4502 (1932). During the Congressional hearings, Norris had defended labor's view that injunctions prohibiting workers from combining to quit work violated the thirteenth amendment. Limiting Scope of Injunctions, supra note 12, at 310-12.

16. 1 National Labor Relations Board, Legislative History of the National Labor Relations Act 501-02, 1241 (1949); 2 Legislative History at 2284; see also 1 Legislative History at 47 ("it is simply absur[d] to say that an individual, one of 10,000 workers, is on an equality with his employer in bargaining for his wages. The worker, if he does not submit to the employers terms, faces ruin for his family. The so-called freedom of contract does not exist under such circumstances. The only way that the worker will be accorded the freedom of contract to which, under our theory of government, he is entitled, is by the intrusion of the Government to give him that right, by protecting collective bargaining"), 1312 (observing that the bill "seeks merely to make the worker a free man in the economic as well as the political field. Certainly the preservation of long-recognized fundamental rights is the only basis for frank and friendly relations in industry").

17. Letter from Furuseth to Wagner, April 16, 1935, Robert F. Wagner Papers, Labor Series, Box 4, Folder 39, Georgetown University Special Collections (12-page letter arguing that the Wagner bill should be grounded on the thirteenth amendment); Letter from Furuseth to Wagner, May 28, 1935, Robert F. Wagner Papers, Labor Series, Box 4, Folder 39, Georgetown University Special Collections (4-page letter stressing the importance of relying on the thirteenth amendment in light of the Schecter decision striking down the NIRA on commerce clause grounds).

18. See Arguments in the cases arising under The Railway Labor Act and The National Labor Relations Act before the Supreme Court of the United States, February 3-11, 1937, U.S. Cong., Senate Document No. 52 (75th Cong., 1st sess.) at 124 (reporting Reed's argument that Congress has "control power" over strikes); id. at 171 (reporting Madden's argument "that the power of Congress clearly includes the power to prevent a strike—rather, to punish a strike—called with the intent of affecting commerce . . .").

19. Petitioner's Brief, NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), at 21-24.

20. Petitioner's Brief, NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), at 32-33 (citing, inter alia, the use of federal troops in the Pullman strike of 1894 and the steel strike of 1919 as examples of federal government "efforts to bring about industrial peace").

21. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).

22. NLRB v. Sands Manufacturing Company,23

23. 306 U.S. 332 (1939).

24. NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939).

25. See Phelps Dodge Corp. V. NLRB, 313 U.S. 177 (1941).

26. See Thomas Geoghegan, Which Side Are You On? 31 (1991).

27. See Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235 (1970).

28. See Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962) (holding that even where a collective bargaining agreement contains no no-strike clause, the presence of a binding arbitration clause impliedly obligates the union to refrain from striking).

29. Unions do have a first amendment right to leaflet with this message, but — according to the Supreme Court — that is only because leafletting is was "'much less effective than labor picketing.'" Edward J. DeBartolo Corp v. Florida Gulf Coast Bldg. & Trades Council, 485 U.S. 568, 576 (1988) (quoting NLRB v. Retail Store Employees, 447 U.S. 607, 619 (1980) (Stevens, J., concurring).

30. See NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).

31. Samuel Gompers, The Courts and Mr. Taft on Labor, 28 American Federationist 220, 222 (1921).

32. See Marion Crain & Ken Matheny, "Labor's Divided Ranks": Privilege and the United Front Ideology, 84 Cornell L. Rev. 1542, 1544 (1999).

33. American Fedn of Labor, Report of the Proceedings of the Thirty-Ninth Annual Convention 361-62 (1919).

34. American Federation of Labor, Proceedings of the Sixty-Seventh Annual Convention 487, 490, 492 (1947).

35. Id. at 495.

36. Id.

37. Id. at 493.

38. Id. at 492.

39. Samuel Gompers, The Courts and Mr. Taft on Labor, 28 American Federationist 220, 222 (1921).

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