Toward a New Labor Rights Movement

8 WorkingUSA—Spring 2001

Pope, Kellman, and Bruno

WorkingUSA, vol. 4, no. 4, Spring 2001, pp. 8–33.© 2001 M.E. Sharpe, Inc. All rights reserved.

ISSN 1089–7011 / 2001 $9.50 + 0.00.

JAMES POPE is professor of law at the Rutgers University School of Law in Newark, NJ. Beforeentering the legal profession, he worked as a ship welder at the Fore River Shipyard in Quincy, MA.PETER KELLMAN is a member of the National Writers Union/ United Auto Workers (UAW) andworks for the Program on Corporations Law and Democracy. He is a former president of an Amal-gamated Clothing and Textile Workers Union (ACTWU) Shoe Workers local in Maine, where he alsoworked for the state AFL-CIO. Currently a Labor Party regional organizer, ED BRUNO formerlyserved as the elected director of organization for the United Electrical, Radio and Machine Workers ofAmerica (UE). Before election to union office, he served as a UE organizer in the New England,Middle Atlantic, and southern states.

A version of this paper has been adopted by the National Interim Committee of the Labor Party as aproposal for discussion. (The Labor Party is a national organization made up of nine internationalunions and a large number of regional and local labor organizations, representing about 2 millionworkers altogether.) The authors are currently meeting with union officials and activists in a numberof cities, and it is expected that the discussion document will be revised on the basis of their criticisms.Readers who wish to contribute suggestions should contact Ed Bruno (e-mail: [email protected];tel.: 617–531–0901).

Toward a New LaborRights MovementJames Pope, Peter Kellman, and Ed Bruno

Workers are not entitled to the rights and privileges thatare normally enjoyed by U.S. citizens. The writers arguethat in today’s workplace, workers are forced to abandontheir constitutional rights in order to earn their living, andthus are subject to the tyranny of the corporation. Sincelegislative reform has proved a losing strategy, the writerspropose a remedy of extending constitutional rights intothe workplace.

THE BAD NEWS is that since 1980 the percentage of unionworkers in the private sector has declined from 24 per-cent to less than 10 percent. The good news is that, given

the choice of joining a union or not, 44 percent of private-sector

Toward a New Labor Rights Movement

WorkingUSA—Spring 2001 9

workers in this country would join.1 In other words, if workerswere presented with a free, uncoerced choice, private-sector unionmembership would more than triple overnight.2

Unfortunately, as unionists know from bitter experience, theNational Labor Relations Act (NLRA) gives employers plentyof ways to prevent workers from exercising freedom of associa-tion. As just one example, the act’s guarantee of the right to or-ganize is so poorly enforced that employers fire about 4 percentof all workers who have the nerve to vote union in a secret ballotelection.3 With these odds, would you speak up for a union ifyou worked in a nonunion workplace? Thanks to this kind ofemployer opposition, union-organizing efforts cannot keep pacewith the loss of union jobs to outsourcing, automation, and jobexport.

So if the law is so bad, why not change it? For more than halfa century, the labor movement has thrown energy and moneyinto a series of unsuccessful campaigns for labor law reform. In1949, labor’s crusade to repeal the Taft-Hartley Act went downto defeat despite Democratic majorities in both houses of Con-gress and President Truman in the White House. And in 1978, amodest reform bill fell to a filibuster, again with Democrats hold-ing 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—ab-sent very extraordinary circumstances—business interests holda veto power over labor rights legislation in this country. This istrue not because business outspends labor 15–1 on political cam-paigns, although it does. It is because business occupies whatpolitical scientist Charles Lindblom calls a “privileged position”in our political system. Public officials need cooperation frombusiness, and they cannot take it for granted.4 While corpora-tions can and do threaten to withhold cooperation or move awayif government does not meet their demands, workers and unions



almost never do likewise. (When was the last time you heard ofany private-sector workers threatening to strike if governmentdidn’t meet their demands?) In short, government leaders canusually afford to stiff unions, but they must do what it takes toobtain the cooperation of business.5

This does not mean that labor always loses. Unions can winlegislative change when business opposition is divided or lessthan fully committed—for example, on bills pertaining to gen-eral labor issues like unemployment insurance and the mini-mum wage. But on union-related issues, where business is unitedand committed, the success rate has been minimal.6 In fact, Con-gress has never passed a major labor rights statute until after unionsand workers have demonstrated the need for change by withholdingcooperation through strikes and boycotts. This generalization holdstrue from the Erdman Act of 1898 (the first railway labor law),which was a self-conscious response to the Pullman Strike of1894, to the Wagner Act of 1935—the most recent major laborrights statute, which was a reaction to the massive strike waveof 1934.7

A Solution?

This article will present a proposal to extend constitutional rightsinto the workplace. This proposal is not a call for lawyers tobring court actions (although there may be a role for court ac-tions at some point down the road). Nor is it yet another blue-print for labor law reform (although it may make sense to pushfor legislation extending constitutional rights into the workplace).First and foremost, this is a proposal for the labor movement todevelop and begin enforcing its own, independent view oflabor’s constitutional rights. The reason the American revolu-tionaries adopted a written constitution was so the people couldread it, understand it, and enforce it on their own. The constitu-



tional rights that are celebrated by Americans today—includingfree speech, freedom from blatant forms of race and sex discrimi-nation, and the free exercise of religion—were all won only afterordinary Americans stood up and insisted that courts implementthe words of the Constitution.

Imagine that in place of our half-century-old labor law—withits government-determined bargaining units and government-certified bargaining representatives—we had a labor law basedon the constitutional rights of free speech, assembly, and laborfreedom. It would work like this. A group of workers want toform an organization. They call a meeting (freedom of assem-bly), discuss their options (free speech), and decide they want todeal with their employer as a group (labor freedom). The em-ployer is legally obligated to respect their choice and to deal withthe group or its chosen representatives. There is no requirementof majority support, no organizing campaign, no firings, and noelection. If the employer refuses to make any concessions, theworkers are free to request help (free speech) from their cowork-ers, from workers at other companies, and from the public. Theycan call a strike (labor freedom), urge their coworkers to join in(free speech), and form large and spirited picket lines at the com-pany entrances (freedom of assembly). If the employer remainsaloof, they can call for help (free speech) from members of stron-ger organizations, who can refuse to handle, transport, or workon the employer’s supplies or products (labor freedom). Theycan urge the public (free speech) to withdraw patronage fromthe employer and from anyone who helps to maintain theemployer’s royal stance by supplying it with materials, sellingits products, serving on its board of directors, or performing anyother service.

This quick sketch leaves many questions unanswered. Butbefore trying to get more specific about the proposal, we willexplain where it came from. It is not some utopian vision born



in the heads of dreamers. On the contrary, it has venerable rootsnot only in the labor movement, but also in the constitutionaland statutory law of the United States.

Back to the Future

We have been laboring so long under the National Labor Rela-tions Act that it is hard to envision a comprehensive alternative.One way to attack this problem is to turn the clock back to theperiod before the NLRA apparatus took over and try to imagineother possible outcomes. In the early 1930s, the main nationallabor statute was the Norris–LaGuardia Anti-Injunction Act. Un-like the NLRA, the Norris–LaGuardia Act was the product of along period of mobilization and agitation by the labor move-ment. It barred the federal courts from issuing injunctions againstpeaceful strikes, boycotts (including secondary boycotts), andpicketing (including peaceful mass picketing) in labor disputes.It also barred federal courts from enforcing yellow dog contractsby injunction or otherwise. In Section 2, Congress set out theexisting relationship between labor and owners of property inthe United States:

Whereas, under prevailing economic conditions, developed with theaid of governmental authority for owners of property to organize inthe corporate and other forms of ownership association, the individualunorganized worker is commonly helpless to exercise actual liberty ofcontract and to protect his freedom of labor, and thereby to obtain ac-ceptable 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 hisfellows, 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 heshall be free from the interference, restraint, or coercion of employers



of labor, or their agents, in the designation of such representatives orin self-organization or in other concerted activities for the purpose ofcollective bargaining or other mutual aid or protection.

If this statement were effectively enforced in law today, wewould be in a position to triple the size of the labor movementovernight. Of course, the Norris–LaGuardia Act by itself did notfully enforce the statement. Its operative provisions were de-signed to eliminate the main obstacles to labor freedom in 1932,namely labor injunctions and yellow dog contracts. But theNorris–LaGuardia Act put the development of labor law on atrack toward the effective enforcement of the fundamental hu-man rights of workers.

Suppose the labor law had remained on the fundamental rightstrack. What might it look like today? To answer this question,we need to know more about the fundamental rights track. Itdid not begin with the Norris–LaGuardia Act. To unionists atthat time, the act merely recognized and protected worker rightsthat were already guaranteed by the U.S. Constitution.

The Labor Amendment to the U.S. Constitution

If you mention the labor amendment to the U.S. Constitutiontoday, most people get a puzzled look on their faces. They knowthat the First Amendment guarantees the right of free speech,and they may even know that the same amendment secures theright of assembly. But few have ever heard of the labor amend-ment. It takes a while before they realize that you are talkingabout the Thirteenth Amendment, which provides: “Neither sla-very nor involuntary servitude, except as a punishment for crimewhereof the party shall have been duly convicted, shall existwithin the United States, or any place subject to their jurisdic-tion.” At that point, they are likely to ask what in the world theThirteenth Amendment could possibly have to do with labor



rights today. After all, the amendment was intended to do awaywith slavery, a goal that was accomplished more than a centuryago.

But according to the Supreme Court, the purpose of the Thir-teenth Amendment was not simply to eliminate slavery, but “tomake labor free by prohibiting that control by which the per-sonal service of one man is disposed of or coerced for another’sbenefit.”8 Before the NLRA, unionists understood from their ownexperience that in a modern industrial economy there was noway to prohibit “that control by which the personal service ofone man is disposed of or coerced for another’s benefit” with-out the rights to organize, strike, boycott, and picket. “The truthis that in complex modern industry,” said Samuel Gompers, “theonly really free labor is organized labor. The only workers notlaboring under terms and conditions arbitrarily imposed uponthem from a source wholly foreign to themselves, are the orga-nized workers.”9 Most courts disagreed. They held that the Thir-teenth Amendment protected only the individual right to quitwork. But labor leaders stood their ground. Gompers ridiculedthe idea that a lone worker could avoid employer control byquitting: “Just imagine what a wonderful influence such an in-dividual would have, say for instance [on] the U.S. Steel Corpo-ration.”10 He acknowledged that the individual right to quitmight have provided some protection in the nineteenth century,when the individual workman owned his own tools and “madea complete article in his own trade or calling,” but since then,the individual had “lost his identity and lost his power.”11 Thus,the rights to organize, to strike, and to boycott were “nothingmore than the application of the constitutional bill of rights tothe conditions of our time.”12 His point was that labor rights,like other constitutional guarantees, must be applied to con-temporary conditions if they are to retain their vitality.

The AFL did not wait for judicial approval to put its constitu-



tional views into practice. Beginning in 1909, it was the officialpolicy of the American Federation of Labor that a worker con-fronted with an unconstitutional injunction had an “imperativeduty” to “refuse obedience and to take whatever consequencesmay ensue.”13 Under this policy, thousands of workers defiedunconstitutional injunctions. Unfortunately, judges did not yetunderstand that their injunctions were unconstitutional, andmany law-abiding workers were imprisoned for violating ille-gal injunctions. According to historians, their principled resis-tance exposed the injustice of the labor injunction and led to thepassage of the Norris–LaGuardia Act.14

When the Norris–LaGuardia Act was passed, labor’s leadingconstitutional thinkers maintained that it endorsed their viewof the Thirteenth Amendment.15 It doesn’t take any legal train-ing to see why. If, as Congress declared, “the individual unorga-nized worker is commonly helpless to exercise actual liberty ofcontract and to protect his freedom of labor,” then the right toorganize is obviously basic to human freedom, and its denial amountsto involuntary servitude. Senator Norris defended this view,charging that antistrike injunctions brought about “slavery”16

and “involuntary servitude on the part of those who must toilin order that they and their families may live.”17

From Labor Freedom to Freedom of “Commerce”

After the Norris–LaGuardia Act was passed, workers and unionsfor the first time enjoyed a degree of freedom from antistrike,antipicketing, and antiboycott injunctions. But employers con-tinued to interfere with the right to organize by discriminatingagainst unionists and establishing company-dominated unions.The passage of the National Industrial Recovery Act (NIRA) in1933 raised workers’ hopes because of its Section 7(a), whichappeared to prohibit employers from discriminating against



unionists or forcing workers to join company unions. But theRoosevelt administration did not enforce the act, leaving it upto workers to enforce their own rights.18 In 1934, the countrywas shaken by four strikes that erupted into open class conflict.West Coast longshoremen, Minneapolis truckers, Toledo auto-mobile workers, and southern textile workers staged strikes thatescalated into pitched battles in which thousands of workers frommany trades and industries joined the strikers in defending theirpicket lines against police, vigilantes, and soldiers. In early 1935,nationwide strikes of automobile and rubber workers were nar-rowly averted. Then, in the famous Schecter Poultry case, theSupreme Court struck down the National Industrial RecoveryAct, leaving President Roosevelt facing a strike wave with noindustrial policy in place.19 He turned to Senator Robert Wagnerof New York, who had drafted the bill that would soon becomethe National Labor Relations Act.

The centerpiece of Wagner’s bill was Section 7, which guaran-teed the right of employees “to self-organization, to form, join,or assist labor organizations, to bargain collectively through rep-resentatives of their own choosing, and to engage in other con-certed activities for the purpose of collective bargaining or othermutual aid or protection.” Section 8 of the bill went beyond theNorris–LaGuardia Act in prohibiting employers from interfer-ing with these rights by coercing workers, discriminating againstunionists, or establishing company-dominated unions. In addi-tion, to make sure that the courts did not construe the act againstlabor, Section 13 directed that “Nothing in this Act shall be con-strued so as either to interfere with or impede or diminish inany way the right to strike.”

These provisions continued on the fundamental rights trackof the Norris–LaGuardia Act. Like Senator Norris before him,Senator Wagner charged that the nonunion workplace resembledslavery, and promised that his bill would bestow upon workers



“emancipation from economic slavery and . . . an opportunity towalk the streets free men in fact as well as in name.”20 AndrewFuruseth, president of the Seamen’s Union and the AFL’s deep-est constitutional thinker, begged Wagner to implement thesesentiments in law by grounding his bill in Congress’s power toenforce the Thirteenth Amendment.21 But lawyers had convincedWagner that the bill should be based on Congress’s power(granted in Article 1, Section 8, of the Constitution) to regulateinterstate commerce. Wagner sincerely believed that his billwould end industrial slavery, but he also believed that it wouldbring about industrial peace, thus facilitating the free flow ofinterstate commerce. To Wagner, there was no contradiction be-tween these goals. Genuine labor-management cooperationcould come about only on a foundation of worker freedom.22

What the senator did not realize was that his reliance on thecommerce clause would tilt the interpretation of his statuteagainst worker freedom. The first big question was whether theact was constitutional. If it had been grounded in the ThirteenthAmendment, the issue would have focused on whether the rightsto organize and engage in concerted activity were necessary forlabor freedom. But instead, government lawyers defended theact as an exercise of Congress’s power to “control” and “pun-ish” strikes under the commerce clause.23 Judging from the law-yers’ arguments, the Wagner Act might have been entitled the“Wagner Antistrike Law.” Workers’ rights were to be protectednot because they were important in themselves, but becauseprotecting them would help to eliminate strikes. In order to drivehome 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, im-posed involuntary servitude on workers. They argued thatstrikes “disrupted” markets, “crippled” business, and caused“disorganization, obstruction, or even paralysis of interstate com-



merce.”24 They praised federal military actions against strikersas “efforts to bring about industrial peace.”25

As numerous historians have pointed out, it is unlikely thatthe lawyers’ commerce clause arguments had any effect in caus-ing the Supreme Court to uphold the NLRA.26 Instead, the courtwas responding to outside pressures. Workers across the coun-try forcefully demonstrated the need for a national labor law bystaging a spectacular wave of sit-down strikes. PresidentRoosevelt threatened to “pack” the court with six new justices.Under this pressure, the court would just as likely have upheldthe law under the Thirteenth Amendment (which fit PresidentRoosevelt’s own rhetoric of ending “economic slavery” and “eco-nomic royalism”) as under the commerce clause. Instead, how-ever, lawyers and politicians channeled the workers’ movementfor fundamental labor rights into a massive expansion of com-merce power. For the first time in history, the Supreme Courtheld that that power could be used to regulate intrastate manu-facturing operations.

Although the commerce clause strategy had little effect on theupholding of the NLRA, it had a huge impact on the interpreta-tion of the new law. Having had the NLRA introduced to themas an antistrike measure, judges soon began to interpret its am-biguous provisions in line with their thinking on what wouldmost effectively prevent strikes. Within a few years of its pas-sage, the Supreme Court had ruled that employers could per-manently replace workers who dared exercise their Section 7right to strike,27 that an employer could fire its entire unionworkforce in retaliation against the union’s threat to strike eventhough the collective bargaining agreement expressly gave theunion the right to strike over disagreements in interpretation,28

and that an employer that flagrantly violated the workers’ rightto organize, provoking them to stage a sit-down strike in pro-test, could then not only discharge the strikers and obtain their



imprisonment for violating an injunction, but also pick andchoose who would be fired and imprisoned, taking back thosewho renounced the union while firing and imprisoning thosewho remained loyal.29 Since worker rights had no value in them-selves, employers that violated them were guilty of no great of-fense. Despite statutory language empowering the board to“prevent any person from engaging in any unfair labor prac-tice” and to order violators not only to cease and desist, butalso “to take such affirmative action . . . as will effectuate thepolicies of this Act,” the court held that the board could notpenalize employers so as to prevent them from committing fu-ture violations.30

The commerce clause strategy backfired even more spectacu-larly in 1947, when the Taft-Hartley Act was passed under theconstitutional authority of the commerce clause. Unionistsbranded the act as “The Slave Labor Law,” but the commerceapproach to labor legislation was already too well entrenched.Among other things, Taft-Hartley amended the NLRA to bansecondary boycotts and limit the subjects over which unionscould bargain.31

It would take a book to list all the bad consequences of givingthe commerce-protecting purpose of the act priority over thefreedom-protecting purpose. We’ll settle for just one more ex-ample. As you recall, the Norris–LaGuardia Act barred federalcourts from enjoining peaceful strike and boycott activities inlabor disputes. Yet today, union workers can be enjoined fromstriking 99 percent of the time, except in the “window” periodsbetween contracts.32 This is because the Supreme Court de-cided—without any indication from Congress—that it was timeto repeal part of Norris–LaGuardia’s ban on injunctions so thatcourts could enforce no-strike clauses in collective bargainingagreements.33 And just in case some freedom-loving union hadnot agreed to a no-strike clause, the Supreme Court decided that



it would “imply” (meaning “create”) one for it.34 So much forthe freedom from government by injunction.

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

A Proposal for Discussion

We start from the proposition that workers must enjoy effectivefreedom of speech, effective freedom of association, and effec-tive freedom of labor. These three freedoms are already guaran-teed, in theory, by the First and Thirteenth Amendments to theU.S. Constitution. In addition, they have been embodied in theNorris–LaGuardia Act and in Section 7 of the National LaborRelations Act. In practice, however, the law does not permit theeffective exercise of these freedoms.

By “effective,” we do not mean that workers must win all oftheir protests. We mean that in actual practice: (1) workers mustbe able to communicate with one another and with the broaderpublic free from government and employer censorship; (2) work-ers must be able to associate together in forms chosen by them-selves and not by government or employers; and (3) workersmust be able to exercise control over their personal labor power.If all of these conditions are fulfilled, workers may or may notsucceed in a particular protest. For example, even if a group ofemployees manage to shut down an employer completely, theyhave only equalized the contest. Now, each side can veto pro-duction—instead of just the employer. With this in mind, hereare the minimum rights necessary to make possible effective free-dom of speech, effective freedom of association, and effectivefreedom of labor:



Freedom of Speech

Up to now, courts have privileged employer property rights overthe workers’ free speech rights. If workers are to enjoy effectivefreedom of speech and expression, this situation must change inat least three ways:

(1) Workers must enjoy freedom of speech on as well as off theemployer’s property. Under current law, we have freedom of speechon public property. On private property the owners of the prop-erty generally determine who can speak and who cannot.35 Work-ers surrender their First Amendment rights when they enter theworkplace. Unfortunately for us, the privately owned work siteis increasingly the only place where it is possible to speak withworkers as a group. Gone are the days when most workers livednear their work sites and could be reached off the employer’sproperty. But union representatives and coworkers from otherenterprises cannot speak with workers at their work sites be-cause the Supreme Court has determined that the employer’sproperty rights trump the workers’ right of self-organization.According to the court, the NLRA permits the employer to ex-clude anyone it wants even if there is no legitimate business rea-son for doing so.36 Meanwhile, unionists supposedly have the“reasonable” alternative of trying to track down individual work-ers by their license plate numbers or of buying advertisementsin general-circulation newspapers. This ridiculous “alternative”only demonstrates the court’s contempt for labor’s rights. It doesnot take any leap of imagination to recognize that when an em-ployer has the power to effectively determine who will—and whowill not—speak to “its” workers, the employer is acting as a masterand it is putting the workers in the position of dependent slaves.

(2) Workers must be free from employer as well as government cen-sorship except where job performance is at stake. The NLRA doesprohibit an employer from interfering with communicationamong 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 em-ployer to commentary on issues that courts think are for man-agement alone (like product selection or quality).37 For example,judges have held that a worker who participates in a march pro-testing the employer’s labor policies can be fired for disloyaltymerely because some marchers were urging a boycott of theemployer.38 But isn’t a peaceful boycott exactly the kind of “con-certed activity for mutual aid or protection” that the NLRA wasintended to protect? When an employer censors a worker’sspeech for reasons unrelated to job performance, it is acting as amaster and treating its employees as if they were its property,not citizens with rights.

(3) The people—including workers—must be free to express them-selves by withholding patronage and requesting others to withholdpatronage. In theory, working people can express solidarity bywithholding patronage from employers who are unfair to labor.Unfortunately, many employers do not sell their own productsdirectly to consumers. Often, the only way for people to casteffective “consumer votes” is to request retailers to remove theoffending employer’s products from the shelves and then boy-cott the retailer if it refuses. But the NLRA prohibits unions frompeacefully picketing such retailers on the grounds that the re-tailer is a “neutral” in the dispute between the union and theoffending employer.39 In other words, the NLRA seeks to pro-tect the “neutral” by preventing the union from informing thepublic that the “neutral” is serving as a retail outlet for the un-fair 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 prod-ucts. When workers are prohibited from effectively communi-cating information about employers, then they are treated morelike slaves than like citizens.



Freedom of Association

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

(1) Any size group of workers can form an association, including aunion, and present and resolve grievances and make agreements withthe employer. The NLRA does not fully protect the rights of a unionthat has not established majority support in a government- oremployer-approved bargaining unit. For example, until last July,a member of a nonmajority union could be fired for insistingthat his or her union steward be present at a grievance confer-ence. (Although the board reversed that rule in July,40 it remainsto be seen whether the courts will accept its new position.) Free-dom of association is not limited to groups that have majoritysupport. When an individual worker is forced to face the collec-tive power of a corporate employer without the support of hisor her union, she is placed in the position of a helpless slavedealing with a powerful master.

(2) Workers, not the government or the employer, must determinethe scope of their own associations for purposes of collective action andbargaining. When we think about freedom of association, thispoint seems obvious. After all, what is collective bargaining otherthan a group of workers getting together to bargain with theemployer? But the NLRA is not based on freedom of associa-tion. Instead of protecting the right of workers to join togetherand deal with the employer, the act establishes a system of gov-ernment-approved “bargaining units.” The board and the courtsdecide which workers will be in which units, and they give thedesires of the employer at least as much weight as those of theworkers.41 When workers cannot determine with whom they willassociate for mutual aid and protection, they are denied a basicright of citizenship.



Freedom of Labor

Under current law, the workers’ freedom of labor is subordi-nated to employer property rights. For workers to enjoy effec-tive 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 jobpermanently to a strikebreaker. Under current law, workers maynot be fired for striking, but they may be “permanently replaced”by strikebreakers even if the employer has no need to offer per-manent employment in order to obtain sufficient strikebreakersto operate. The employer’s property right “to protect and con-tinue his business” trumps the workers’ right to strike.42 In prac-tice, then, an employer can permanently replace strikers as away of punishing them for exercising their “right” to strike. Whenan employer has the power to punish workers for exercisingtheir fundamental rights, the employer is acting as a masterand the employee is treated like a slave whose rights meannothing.

(2) The freedom of labor must include the right to refuse to con-tribute 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 thatdeal with unfair employers are considered to be innocent“neutrals” that should be insulated against worker protest. Work-ers who refuse to handle the products of an unfair employer areseeking, as Samuel Gompers put it, “to exercise control of theirown labor power, . . . to control their own movements, the ex-pending of their own efforts, the giving of that service whichconstitutes their voluntary contribution to the welfare of soci-ety.”43 Even if a worker is not personally involved in handlingthe unfair employer’s product, he or she is helping her “neu-tral” employer to continue “business as usual” with the unfairemployer. When a “neutral” employer can compel a worker tocontribute his or her personal labor to assist another employer



in violating the human rights of its employees, the employer isplaced in the position of a master and the worker in that of aslave with no control over his or her personal labor.

(3) The freedom of labor must include the right to bargain with andto strike and boycott against the company that actually controls termsand conditions of employment. Under the NLRA, companies caninsulate themselves against worker protest by subcontractingwork and creating artificial corporate boundaries. For example,when employees of the Hearst Corporation’s Baltimore radiostation picketed at the Hearst Corporation’s Baltimore newspa-per, they discovered that they were guilty of engaging in a sec-ondary boycott against the “neutral” newspaper.44 Why? Becausethe radio station and the newspaper were—on paper—separatecorporations; it just happened that Hearst wholly owned both.Of course, in the real world, the Hearst Corporation can spreadthe costs of the radio strike over all of its operations; the strikedoes not exert serious pressure unless Hearst is feeling its ef-fects. When employers can use corporate formalities to renderworkers’ rights meaningless, the employer is acting like a mas-ter and the employee is treated like a slave.

(4) The freedom of labor must include the right to withhold personallabor in solidarity with workers in other countries. With corpora-tions organized on a multinational basis, effective labor freedomnecessarily requires the right to combine across borders. Butmany efforts at international solidarity run up against the sec-ondary boycott prohibition. When American longshoremenjoined other dockworkers around the world in refusing to un-load cargo from the Neptune Jade, they were hit with secondaryboycott charges. When corporations are permitted to organizeon a multinational basis, while workers are limited to local pro-tests because of artificial corporate boundaries, then corpora-tions take on the powers of arrogant masters while workers arehelpless to defend their rights.



An Open Question

If we were to put labor law back on the track of fundamentalrights, a very important issue would quickly arise. Under Sec-tion 9 of the NLRA, a union can become the exclusive represen-tative for all of the workers in a government-determinedbargaining unit by demonstrating majority support in a repre-sentation election. The presence of a majority union extinguishesthe right of dissenters to bargain as individuals or to form theirown, minority unions. This principle of exclusive representa-tion was enacted to prevent employers from playing off indi-vidual workers and minority unions against the majorityrepresentative. But it is unclear whether Section 9 helps or hurtsworker freedom. Section 9 does not come close to eliminatingdivide-and-conquer opportunities, and it probably creates someof 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” andnonunion units that can be played off against each other. More-over, thoughtful, pro-union analysts have argued that exclusiverepresentation can give employers additional divide-and-conqueropportunities. These analysts contend that when a majority unionis insulated against competition, its officers may tend to ignorethe interests of minorities.45 If so, then employers can exploit thesituation to divide workers along lines of race and sex.

It is true that the U.S. labor movement has long relied on theprinciple of exclusive representation, and it should not be aban-doned without thorough deliberation. However, the fact that theoverwhelming majority of industrial countries reject exclusiverepresentation, and most of them have much higher union den-sity than the United States, should give us pause. At a mini-mum, we should reassess our commitment to the principle, andconsider possible alternatives and modifications that might bet-ter serve labor freedom.



From Here to There

To sum up, we propose that instead of pinning our hopes onlegislative 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 Amendmentsalready exist, and can be utilized right away; (2) these constitu-tional provisions trump statutory law, so that any legislation tothe contrary (for example, the secondary boycott prohibition ofthe Taft-Hartley Act) is null and void; (3) our written Constitu-tion belongs to the people, not the legal profession, which meansthat the people can interpret it and enforce it against the powersthat be.

The big drawback is that the courts have never accepted manyof our constitutional claims, and they have specifically rejectedsome of them. If we proceed to exercise our constitutional rights,we are likely to encounter opposition from legal authorities andcourts. This is a serious problem, and no one should take it lightly.We are not, however, the first to face this difficulty. The aboli-tionists who established the underground railway, the womensuffragists who insisted on voting, the civil rights activists whosat in at segregated lunch counters, and the workers who stagedsit-down strikes in the 1930s all suffered from official hostility.In 1919, the delegates to the annual convention of the AmericanFederation of Labor dealt with this problem by resolving unani-mously to “stand firmly and conscientiously on our rights asfree men and treat all injunctive decrees that invade our per-sonal liberties as . . . illegal as being in violation of our constitu-tional safeguards, and accept whatever consequences mayfollow.”46

A half-century ago, with the labor movement at a crossroads,John L. Lewis thundered his support for this policy. The big is-sue at the annual convention of the American Federation of La-bor 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 leader-ship had lost enthusiasm for the struggle. John L. Lewis turnedhis oratorical skills to reviving the spirit of resistance:

This Act was passed to oppress labor, to make difficult its current en-terprises for collective bargaining, to make more difficult the securingof new members for this labor movement, without which our move-ment will become so possessed of inertia that there is no action and nogrowth, and in a labor movement where there is no growth there is nosecurity for its existence, because deterioration sets in and unions, likemen, retrograde. . . . I wonder what built up the labor movement inthis country? Was it protecting laws and statutes that protected theorganizers of our movement when they went out to the meetings? Oh,no! The founders of our Federation had no such protection. They hadto fight for the right to be heard. They had to fight for the right to holda meeting, and men had to sacrifice and sometimes die for the right tojoin a union. . . . And what you are doing today [by complying withTaft-Hartley]—you are repealing the 1919 injunction policy . . . andyou are humbling yourselves in abasement before the return of gov-ernment by injunction.47

AFL secretary-treasurer George Meany delivered theadministration’s response. It was a complete negation of the veryidea that labor could develop and live by an independent inter-pretation of the constitution. Despite his public position that Taft-Hartley was unconstitutional, Meany claimed that it was “thelaw of the land”:

Whether you like it or not, whether the National Association of Manu-facturers and the representatives of the reactionary employers boughtthe Republican party or not, as someone seems to think, the fact re-mains that they counted the votes in Washington, and the Taft-HartleyLaw is on the statute books. No one asked for a recount. Our represen-tatives were there when the votes were cast, and no matter what thereason, whether it is the sinister reason attributed here today or not, thefact remains that they did pass this law. It is now the law of the land.48

With the cold war in full swing, and the labor movementsingled out as a hotbed of communism, constitutional resistance



seemed un-American to Meany. “We know it is a bad law,” hecontinued, “but it was placed on the statute books by our repre-sentatives under the American democratic system, and the onlyway it is going to be changed is by our representatives underthat system.”49 Teamsters president Daniel Tobin agreed that this“is a law that we will resent, but there is a certain legal proce-dure to change the law, and it isn’t by revolution.”50 Meany’sspeech was greeted with thunderous applause, and his positionprevailed by a wide margin. For the next half century the move-ment dutifully lobbied and electioneered for labor law reform.The Thirteenth Amendment theory of labor liberty lay dormantas union lawyers paid it no more than lip service, the SupremeCourt dodged the issue, and labor leaders gradually forgotabout it as they became increasingly dependent on governmentprotection.

Now, at the turn of the millennium, many labor activists andleaders have come to share Lewis’s view that Taft-Hartley is in-deed causing the movement to languish and decline. In the mean-time, the chilling pressure of the cold war has lifted. And, lastbut not least, the recent change in leadership at the AFL-CIOmakes it possible to look back on the most famous lines of Lewis’s1947 speech with more optimism than would previously havebeen possible. The Mine Workers’ president had threatened toresign from the Federation’s Executive Council if it failed to defyTaft-Hartley. In regard to that threat, he declared:

Perhaps . . . you will say “John L. Lewis is trying to hold a gun to thehead of the convention.” That is not true. I don’t think anyone canhold a gun to the head of this convention. . . . As far as that is con-cerned, on this particular issue, I don’t think that the Federation has ahead. I think its neck has just grown up and haired over.51

Where an employer has flagrantly violated labor rights, andwhere the law prohibits the victims from effectively protesting,we might do well to recall Samuel Gompers’s words: “History



honors none above those who, in the past, have set themselvesagainst unjust laws, even unto the point of rebellion. The Re-public of the United States is founded upon defiance of unjustlaw. . . . The American Federation of Labor and its presidenthave declared that manifestly unjust decisions of courts must bedefied, and there is no disposition to recant.”52

Notes

1. See Richard B. Freeman and Joel Rogers, What Workers Want (Ithaca: CornellUniversity Press, 1999), 89 (reporting survey results).

2. According to Freeman and Rogers, there would be union majorities in work-places accounting for about the same percentage of the workforce as the percentagethat would prefer a union (68–69). We can project only a tripling of membershipbecause 12 percent of the survey sample worked in unionized workplaces (89).

3. See Paul Weiler, “Promises to Keep: Securing Workers’ Rights to Self-Organi-zation Under the NLRA,” Harvard Law Review 96 (1984): 1769, 1781 (estimating thatone in twenty pro-union voters in representation elections had been discharged inretaliation for union activity); Robert J. Lalonde and Bernard D. Meltzer, “HardTimes for Unions: Another Look at the Significance of Employer Illegalities,” Uni-versity of Chicago Law Review 58 (1991): 953, 990–92 (estimating that one in thirty-sixpro-union voters in representation elections had been discharged in retaliation forunion activity); Paul Weiler, “Hard Times for Unions: Challenging Times for Schol-ars,” University of Chicago Law Review 58 (1991): 1015, 1023–24 (arguing that anyestimate based on official determinations of retaliatory discharge is likely to under-state the actual number because only a fraction of such discharges are litigated to aconclusion).

4. Charles Lindblom, Politics and Markets (New York: Basic Books, 1977), 175.5. Ibid., 176.6. See Richard Freeman and James Medoff, What Do Unions Do? (New York:

Basic Books, 1984), 198–204 (study of 280 bills introduced in Congress between1947 and 1980, showing a union success rate of 58 percent on “bills pertaining togeneral labor issues,” like unemployment insurance and minimum wage, as com-pared to a success rate of 20 percent on “bills relating to labor law” and “union-related legislation”).

7. See James Gray Pope, “The First Amendment, the Thirteenth Amendment,and the Right to Organize in the Twenty-first Century,” Rutgers Law Review 51 (1999):941, 944–45, 969.

8. Bailey v. Alabama, 219 U.S. 219, 241 (1911) (striking down Alabama’s debtpeonage law).

9. Samuel Gompers, “Union Labor and the Enlightened Employer,” AmericanFederationist 28 (1921): 469, 472–73. For detailed descriptions of this viewpoint, seeWilliam E. Forbath, Law and the Shaping of the American Labor Movement (Cambridge:



Harvard University Press, 1991), 135–41; James Gray Pope, “Labor’s Constitutionof Freedom,” Yale Law Journal 106 (1997): 941, 962–66, 978–81.

10. Debate Between Samuel Gompers and Henry J. Allen at Carnegie Hall, New York,May 28, 1920 (New York: E.P. Dutton, 1920), 15.

11. “Testimony of Samuel Gompers, President, American Federation of Labor,before Joint Labor and Industries Committee of the New York State Legislature onthe Duell-Miller Industrial Relations (Anti-strike) Bill, Assembly Chamber, Capi-tol, Albany, NY, March 1, 1922,” American Federationist 29 (1922): 253, 260.

12. Gompers, “Union Labor and the Enlightened Employer,” 469, 472.13. American Federation of Labor, Report of the Proceedings of the Twenty-Ninth

Annual Convention (1909), 313–14.14. See Forbath, Law and the Shaping of the American Labor Movement, 158–63.15. See American Federation of Labor, Report of the Proceedings of the Fifty-First

Annual Convention (1931), 460–63 (reporting statements by Andrew Furuseth andVictor Olander of the Seamen and Matthew Woll of the Photoengravers as to theincorporation of Thirteenth Amendment principles into the Norris bill, which laterbecame the Norris–LaGuardia Act).

16. U.S. Senate Committee of the Judiciary, Limiting Scope of Injunctions in LaborDisputes: Hearings Before the Subcommittee of the Senate Committee on the Judiciary,70th Cong., 1st sess., 1928, 672 (commenting, with regard to the right to persuadeworkers to strike: “We have got to leave that liberty to the citizen or we will haveslavery, it seems to me, and we can not inquire into his motive, it seems to me, if hedoes it peacefully”).

17. Congressional Record 75, 1932, 4502. During the congressional hearings, Norrishad defended labor’s view that injunctions prohibiting workers from combining toquit work violated the Thirteenth Amendment. Senate Committee, Limiting Scope ofInjunctions, n. 12, 310–12.

18. The act authorized the president to approve “codes of fair competition” de-veloped by boards composed of representatives from the affected industry. U.S.Statutes at Large 48 (1933): 195. Section 7(a) required that each code guarantee toemployees “the right to organize and bargain collectively through representativesof their own choosing.” The act empowered the attorney general to enforce thecodes in the federal courts (Section 3[c]), but Roosevelt did not authorize him to doso until February 1934, and even then he proceeded so cautiously that only one casereached a resolution before the Supreme Court declared the act unconstitutional.See Irving Bernstein, The New Deal Collective Bargaining Policy (Berkeley: Universityof California Press, 1950), 59; Peter Irons, The New Deal Lawyers (Princeton: PrincetonUniversity Press, 1982), 207–10.

19. A.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935).20. National Labor Relations Board, Legislative History of the National Labor Rela-

tions Act 1 (1949): 501–2, 1241 (hereafter “Legislative History”); Legislative History 2:2284; see also Legislative History 1: 47 (“it is simply absur[d] to say that an indi-vidual, one of 10,000 workers, is on an equality with his employer in bargaining forhis wages. The worker, if he does not submit to the employer’s terms, faces ruin forhis family. The so-called freedom of contract does not exist under such circum-stances. The only way that the worker will be accorded the freedom of contract towhich, under our theory of government, he is entitled, is by the intrusion of the



Government to give him that right, by protecting collective bargaining”); and 1312(observing that the bill “seeks merely to make the worker a free man in the eco-nomic as well as the political field. Certainly the preservation of long-recognizedfundamental rights is the only basis for frank and friendly relations in industry”).

21. Letter from Furuseth to Wagner, April 16, 1935, Robert F. Wagner Papers,Labor Series, Box 4, Folder 39, Georgetown University Special Collections (twelve-page letter arguing that the Wagner bill should be grounded on the ThirteenthAmendment); letter from Furuseth to Wagner, May 28, 1935, Robert F. Wagner Pa-pers, Labor Series, Box 4, Folder 39, Georgetown University Special Collections(four-page letter stressing the importance of relying on the Thirteenth Amendmentin light of the Schecter decision striking down the NIRA on commerce clausegrounds).

22. See Mark Barenberg, “The Political Economy of the Wagner Act: Power, Sym-bol, and Workplace Cooperation,” Harvard Law Review 106 (1993): 1379, 1410–30(describing Wagner’s views); see also Legislative History 1, no. 50: 40–41 (quotingWagner: “It has been urged that the bill places a premium on discord by declaringthat none of its provisions shall impair the right to strike. . . . But this bill will pre-vent strikes by the only feasible and just method; that is, by insuring fair treatmentto all parties and by establishing a powerful and trustworthy agency for the settle-ment of disputes”).

23. U.S. Congress, Senate, Arguments in the Cases Arising Under the Railway LaborAct and the National Labor Relations Act Before the Supreme Court of the United States,February 3–11, 1937, 75th Cong., 1st sess., S. Doc. 52, 124 (reporting Reed’s argu-ment that Congress has “control power” over strikes); 171 (reporting Madden’sargument “that the power of Congress clearly includes the power to prevent astrike—rather, to punish a strike—called with the intent of affecting commerce”).

24. Petitioner’s Brief, NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): 21–24.25. Ibid., 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 tobring about industrial peace”).

26. See Irons, New Deal Lawyers, n. 18, 272–73, 289; James A. Gross, The Making ofthe National Labor Relations Board (1933–1937) (Albany: State University of New YorkPress, 1974), 227; Richard C. Cortner, The Wagner Act Cases (Knoxville: University ofTennessee Press, 1964), 176–77.

27. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).28. NLRB v. Sands Manufacturing Co., 306 U.S. 332 (1939).29. NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939).30. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941).31. See National Labor Relations Act (as amendment by Taft-Hartley), secs. 8(b)(4),

10(d), U.S. Code, vol. 29, secs. 158(b)(4), 160(d) (1994).32. See Thomas Geoghegan, Which Side Are You On? (New York: Farrar, Straus,

and Giroux, 1991), 31.33. See Boys Markets, Inc., v. Retail Clerks Local 770, 398 U.S. 235 (1970).34. 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 pres-ence of a binding arbitration clause impliedly obligates the union to refrain fromstriking).



To order reprints, call 1-800-352-2210; outside the United States, call 717-632-3535.

35. This is because, according to the Supreme Court, the first amendment is en-forceable only against government. See The Civil Rights Cases, 109 U.S. 3 (1883).However, the Thirteenth Amendment applies to both private and governmentalactors. See ibid., 217. It is our contention that the Thirteenth Amendment appliesthe First Amendment to the employment relation in the same way that the Four-teenth Amendment applies the First (which, by its terms, applies only to the federalgovernment) to the states.

36. See Lechmere, Inc., v. NLRB, 502 U.S. 527 (1992).37. See NLRB v. Local 1229, IBEW (Jefferson Std. Broadcasting Co.), 346 U.S. 464

(1953).38. See George A. Hormel & Co. v. NLRB, 962 F. 2d 1061 (D.C. Cir. 1992).39. Unions do have a First Amendment right to leaflet with this message, but—

according to the Supreme Court—that is only because leafleting is “‘much less ef-fective than labor picketing.’” Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg.and Trades Council, 485 U.S. 568, 576 (1988) (quoting NLRB v. Retail Store Employees,447 U.S. 607, 619 (1980) [J. Stevens concurring]).

40. See Epilepsy Foundation of Northeast Ohio, 331 NLRB 92 (2000).41. See generally Julius G. Getman, Bertrand B. Pogrebin, and David L. Gregory,

Labor Management Relations and the Law, 2d ed. (New York: Foundation Press 1999),28–33.

42. See NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).43. Samuel Gompers, “The Courts and Mr. Taft on Labor,” American Federationist

28 (1921), 220, 222.44. See American Federation of Television and Radio Artists, Washington-Baltimore

Local, 185 NLRB 593 (1970).45. See Marion Crain and Ken Matheny, “Labor’s Divided Ranks: Privilege and

the United Front Ideology,” Cornell Law Review 84 (1999): 1542, 1544.46. American Federation of Labor, Report of the Proceedings of the Thirty-ninth

Annual Convention (1919), 361–62.47. American Federation of Labor, Proceedings of the Sixty-Seventh Annual Con-

vention (1947): 487, 490, 492.48. Ibid., 495.49. Ibid.50. Ibid., 493.51. Ibid., 492.52. Gompers, “The Courts and Mr. Taft on Labor,” 220, 222.

Documents

Toward a New Labor Rights Movement