How American workers lost the right to strike, and other tales.

• Date: 01 December 2004
• Author: Pope, James Gray
• Published date: 01 December 2004
• Author: Pope, James Gray

To paraphrase a veteran labor scholar, if you want to know where the corpses are buried in labor law, look for the "of course" statements in court opinions. (1) By "of course" statements, he meant propositions that are announced as if they were self-evident, requiring no justification. Each year, thousands of law students read such statements in labor law casebooks. And each year, they duly ask themselves--prodded sometimes by the casebook's notes--how these conclusions could be justified in legal terms. But often there seems to be no answer, and the mystery continues.

This Essay recounts the origins of five such "of course" statements, each of which has had a devastating impact on the American labor movement. The five statements are:

1) Of course, workers have no right of self-defense against employers that commit unfair labor practices. (2)

2) Of course, employers enjoy the right to permanently replace economic strikers. (3)

3) Of course, the National Labor Relations Board has no power to deter unfair labor practices. (4)

4) Of course, employers may exclude union organizers from their property. (5)

5) Of course, employers may close operations out of "spite" against workers who choose to unionize. (6)

These statements all share one puzzling feature. In the accepted hierarchy of laws, only the United States Constitution can trump federal statutes. (7) Yet each of these statements elevates the state common-law rights of employers over the federal statutory rights of workers. (8) This strange phenomenon gives rise to a hypothesis: If the Constitution is the only source of law with sufficient authority to provide a legal justification for these "of course" statements, then maybe they can be traced to constitutional thinking. To give credit where credit is due, this is not my idea; it builds on an observation by then-Associate Justice William Rehnquist:

From its earliest cases construing the National Labor Relations Act the Court has recognized the weight of an employer's property rights, rights which are explicitly protected from federal interference by the Fifth Amendment to the Constitution. The Court has not been quick to conclude in a given instance that Congress has authorized the displacement of those rights by the federally created rights of the employees. (9) In support of this claim, Justice Rehnquist cited NLRB v. Fansteel Metallurgical Corporation, (10) the source of our first "of course" statement. But he left the other cases unspecified. The five stories that follow (Parts I-V) confirm the accuracy of the Rehnquist thesis as applied to Fansteel, and suggest that--if we include liberty of contract and the Commerce Clause along with property rights--the other four "of course" statements can be explained as rooted in the Constitution as well. In each of the five cases, the Court revived Lochner-era doctrines--supposedly defunct since the "switch in time that saved nine" in 1937--and applied them to cut back on statutory labor rights. Once again, judges have deprived workers of the rights to organize and strike, but this time without the forthright constitutional reasoning of the pre-1937 period.

How did this happen? Why did the Court hide the constitutional ball in "of course" statements? What are the implications for labor law today? Part VI concludes the Essay by addressing those questions.

1. HOW AMERICAN WORKERS LOST THE RIGHT OF SELF-DEFENSE

   On February 17, 1937, members of the Steel Workers Organizing Committee at the Fansteel Metallurgical Corporation occupied two buildings of the factory and commenced a sit-down strike. That same day, management told the strikers that they were fired. (11) After a court enjoined the strikers to cease their occupation, a force of 140 police officers armed with tear gas guns and baseball bats assaulted the plant only to be repulsed by strikers hurling nuts, bolts, and other objects. A second attempt, conducted before dawn with a larger force, succeeded. During both attacks windows were broken and other company property damaged. After their eviction from the plant, a majority of the strikers were convicted of contempt of court and sentenced to fines and substantial jail terms. (12)

   The strikers claimed that they had rightfully occupied the factories in self-defense of their right to organize, protected under the recently enacted National Labor Relations Act (NLRA). (13) Prior to the sitdown, the corporation had committed a variety of unfair labor practices over a period of six months, including planting a spy in the local union, transferring the local's president to an isolated location, establishing a company-dominated union, and announcing that management would never bargain with the union under any circumstances. (14) The workers had filed charges with the National Labor Relations Board (NLRB), (15) but five months had gone by with no action. One union leader recalled: "[T]he members of the lodge felt that ... we were letting the company push us around, and we were not sticking up for their rights as they considered them under the Wagner labor law.... [T]hey demanded we do something." (16) Meanwhile, Fansteel's spy within the union was acting as an agent provocateur, urging the workers to go out on a traditional outside strike--thus giving the company an opportunity to break the union by bringing in striker replacements. (17) Caught between the necessity for action and the perils of a traditional strike, the unionists resorted to the sit-down.

   The NLRB bypassed the workers' claim of self-defense by ordering Fansteel to reinstate the strikers as a remedy for the company's pre-strike unfair labor practices. (18) The Supreme Court, on the other hand, squarely confronted the issue of whether the sit-down was protected under the NLRA. In an opinion by Chief Justice Hughes, the Court held that the Board could not reinstate sit-downers even though their strike would not have occurred but for the employer's violations of law. According to the Chief Justice, the strikers lost their status as statutory "employees" when Fansteel discharged them. And since the NLRB was empowered to reinstate only "employees," it could not reinstate the fired strikers. (19) Why was it legal for Fansteel to terminate employees for responding with self-help to its own statutory violations? The opinion made it clear that the employer's common-law property rights were of a different and higher order than the employees' statutory labor rights. While the company's repeated violations of the workers' right to organize did not deprive the company of "its legal rights to the possession and protection of its property," the workers' violation of the employer's property rights put them "outside the protection of the statute." (20) At no point in his opinion for the majority did Chief Justice Hughes mention the impact of the employer's unfair labor practices on the workers' statutory rights. In fact, the Court was so little concerned about the corporation's violations that it referred to the sit-down as "an illegal seizure of the buildings in order to prevent their use by the employer in a lawful manner." (21)

   How did the corporation's common law property rights rise so far above the workers' statutory rights? Constitutional law operated both to pump up the former and to deflate the latter. In NLRB v. Jones & Laughlin, the Court had upheld the Board's power to reinstate a worker fired for union activity, but only because the Act allowed the employer to fire a worker for any other reason, and thus did "not interfere with the normal exercise of the right of the employer to select its employees or to discharge them." (22) In Fansteel, Chief Justice Hughes characterized the issue as whether the Act abrogated the employer's right to fire workers who had illegally seized its property --certainly a "normal" exercise of the right to discharge. (23) "Apart from the question of the constitutional validity of an enactment of that sort," he wrote, "it is enough to say that such a legislative intention should be found in some definite and unmistakable expression." (24) The Chief Justice did not cite any authority for the existence of a constitutional right to discharge workers, a gap that was filled in Fansteel's brief with citations to the due process clause of the Fifth Amendment and to the Lochner-era cases of Adair v. United States and Coppage v. Kansas. (25) Thus, in both Jones & Laughlin and Fansteel, the Court affirmed that employers continued to enjoy a constitutional right to discharge workers under the due process clause.

   While the employer's right to fire workers rose to the constitutional level, the workers' statutory right to organize all but disappeared from consideration. This too had its roots in constitutional thinking, here grounded on the Commerce Clause. In Jones & Laughlin, the Court had held that a Board order could survive constitutional challenge only if the particular unfair labor practices at issue actually affected interstate commerce and thus fell within Congress's commerce power. (26) NLRB General Counsel Charles Fahy interpreted this to mean that the reach of the Act to a particular enterprise hinged on whether "stoppage of ... operations by industrial strife" in that enterprise would substantially interrupt or interfere with interstate commerce. (27) In its anxiousness to win this point, the Board focused solely on the commerce-protecting purpose of the Act, which tended to cast unions and strikers as dangerous disruptors of commerce. Forgotten were other NLRA policies that might have offered stronger support for the Board's orders--policies like "restoring equality of bargaining power between employers and employees," "encouraging the practice and procedure of collective bargaining," and "protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing." (28)

   The Court went a step further. Not...