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Published online by Cambridge University Press: 31 October 2011
Thanks to Joseph McCartin for advancing this debate with an insightful critique of the workers'-rights-as-human-rights framework and for his generous treatment of the series of Human Rights Watch reports in which I had a hand. McCartin so fairly presents the human rights case, even while disagreeing with it, that it's hard to respond without simply borrowing from his framing of my own views. But I'll try.
1. Let me call readers' attention to a new HRW report published in September 2010, A Strange Case: Violations of Workers' Rights in the United States by European Multinational Corporations. It tells how high-profile German, British, French, and other European firms who loudly proclaim their support for workers' organizing and bargaining rights at home adopt American management-style union busting in their US operations. See http://www.hrw.org/en/reports/2010/09/02/strange-case-0.
4. James Pope at Rutgers Law School has done the most original work on the struggles over drafting, passage, and constitutional support for the NLRA. See James Gray Pope, “The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921–1957,” Columbia Law Review 102 (2002). He suggests that the Supreme Court was really responding to massive social pressures of workers' organizing and strikes, including sit-down strikes, and that “there is no a priori reason to believe that—had the justices been presented with an argument based on the Thirteenth Amendment instead of the Commerce Clause—they would not have chosen to uphold the Act on that ground.”
5. See, for example, Rosenblum, Jonathan D., Copper Crucible: How the Arizona Miners' Strike of 1983 Recast Labor-Management Relations in America (1995)Google Scholar.
6. See First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981).
7. See Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).
8. See Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975).
9. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).
10. Thomas J. Donohue, US Chamber of Commerce, Politico Debate: the Employee Free Choice Act, www.politico.com/arena/archive/efca.html.
11. Samuel Gompers, May 28, 1920, as quoted in Dorothy Cobble, Sue, “The Wagner Act at 75: The Intellectual Origins and Legacy of An Institutional Revolution,” ABA Journal of Labor and Employment Law 26:2 (Spring 2011)Google Scholar, forthcoming.