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Historians and the U.S. Industrial Relations Regime

Published online by Cambridge University Press:  14 October 2011

Robert H. Zieger
Robert H. Zieger
Affiliation:
University of Florida
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Extract

During the Clinton administration, for the first time in almost twenty years, the character and direction of the U.S. industrial relations regime has become a matter of serious public debate. Clinton-appointed chair of the National Labor Relations Board (NLRB) William Gould IV has sought with some success to revivify an agency that in the 1980s had come to seem almost superfluous. The 1994 report entitled The Commission on the Future of Worker-Management Relations (Dunlop Commission) stirred debate on the role of unions in the nation's future. Organized labor has sought, with some limited success, to place such critical topics as striker replacement on the national agenda. Meanwhile, congressional conservatives have sponsored measures to curb new organizing strategies such as “salting” anti-union workplaces with union activists. Even more moderate politicians, with support from at least some sections of the labor community, have proposed measures aimed at drastic recasting of the Wagner Act's Section 8(a) (2), which outlawed company unions, so as to permit so called “team” approaches to employee representation. The shake-up in the leadership of the AFL-CIO and the federation's launching of an unprecedented program of political mobilization, which in turn has drawn Republican counterfire reminiscent of the rhetoric of the 80th Congress, increases the possibility that basic matters of federal labor policy may, after a long absence from mainstream public discourse, may return to center stage.

Type
Perspectives in Policy History
Information
Journal of Policy History , Volume 9 , Issue 4 , October 1997 , pp. 475 - 489
Copyright
Copyright © The Pennsylvania State University, University Park, PA. 1997

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References

Notes

1. Brody, David, “Section 8(a) (2) and the Origins of the Wagner Act,” Restoring the Promise of American Labor Law, ed. Friedman, Sheldon, Hurd, Richard W., Oswald, Rudolph A., and Seeber, Ronald L. (Ithaca, N.Y., 1994), 29–44Google Scholar.

2. At the same time, the expansion of employee rights outside the collective-bargaining system through judicial modification of the employment-at-will doctrine has proceeded, albeit erratically. See Summers, Clyde W., “The Rights of Individual Workers: The Contact of Employment and the Rights of Individual Employees: Fair Representation and Employment at Will,” Fordham Law Review 52 (1984): 1082–1109Google Scholar; idem, “Labor Law as the Century Turns: A Changing of the Guard,” Nebraska Law Review 67:1 (1988): 7–27; and Weiler, Paul, Governing the Workplace: The Tuture of Labor and Employment Law (Cambridge, Mass., 1990)CrossRefGoogle Scholar.

3. For a fuller review, see Zieger, Robert H., “The NLRB at Sixty,” Reviews in American History 24 (March 1996): 97–101CrossRefGoogle Scholar. The citations for Gross's trilogy are: Gross, James A., The Making of the National Labor Relations Board: A Study in Economics, Politics, end the Law (Albany, N.Y., 1974)Google Scholar; The Reshaping of the National Labor Relations Board: National Labor Policy in Transition, 1937–1947 (Albany, N.Y., 1981)Google Scholar; and Broken Promise: The Subversion of U.S. Labor Relations Policy (Philadelphia, 1995)Google Scholar.

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5. For the purposes of this article, I consider Bernstein a historian. Although his training and academic appointments have been in economics and industrial relations, his most substantial work over the past forty years has been historical in research base, historiographical context, and mode of exposition. See the illuminating commentaries about the character and trajectory of his scholarship by Elizabeth Faue, Dana Frank, and Nelson Lichtenstein, and Bernstein's response, in Holter, Darryl, coordinator, “Irving Bernstein's Labor History: A Symposium,” Labor History 37 (Winter 1995–96): 75–99Google Scholar. Bernstein's influential and authoritative accounts of the background and establishment of the NLRB appear in Bernstein, Irving, The New Deal Collective Bargaining Policy (Berkeley, Calif., 1950)Google Scholar, and idem, Turbulent Years: A History of the American Worker, 1933–1941 (Boston, 1970), 318–51 and passim.

6. Brody, David, “The Emergence of Mass-Production Unionism,” Change and Continue ity in Twentieth-Century America, ed. Braeman, John et al. (Columbus, Ohio, 1964), 221–62Google Scholar; reprinted in Brody, David, Workers in Industrial America: Essays on the Twentieth-Century Struggle (New York, 1980), esp. 101–12Google Scholar; idem, “Workplace Contractualism in Comparative Perspective,” Industrial Democracy in America: The Ambiguous Promise, ed. Nelson Lichtenstein and Howell Harris (Cambridge, 1993), 192–94; Dubofeky, State and Labor in Modem America, 107–67; Harris, Howell John, “The Snares of Liberalism? Politicians, Bureaucrats, and the Shaping of Federal Labour Relations Policy in the United States, ca. 1915–1947,” in Shop Floor Bargaining and the State: Historical and Comparative Perspectives, ed. Tolliday, Steven and Zeitlin, Jonathan (Cambridge, 1985), 148–91Google Scholar; Irons, Peter H., The New Deal Lawyers (Princeton, N.J., 1982), 203–89Google Scholar.

7. The theme of response to underconsumption has recently received additional support among legal and industrial relations scholars. See, e.g., Casebeer, Kenneth M., “Drafting Wagner's Act Leon Keyserling and the Precommittee Drafts of the Labor Disputes Act and the National Labor Relations Act,” Industrial Relations Law Journal 11 (1989): 73–131Google Scholar; idem, “Holder of the Pen: An Interview with Leon Keyserling on Drafting the Wagner Act,” University of Miami Law Review 42 (November 1987): 285–363; and Kaufman, Bruce, “Why the Wagner Act? Reestablishing Contact with Its Basic Purpose,” Advances in Industrial and Labor Relations 7 (1996): 15–68Google Scholar. In a lengthy recent reassessment of the origins of the Wagner Act, however, legal scholar Mark Barenberg foregrounds the role of Senator Wagner and a circle of policy advocates for whom the creation of a definitive system of worker representation was crucial to the task of building a harmonious, democratic industrial order. See Barenberg, Mark, “The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation,” harvard law Review 106 (May 1993): 1381–1496CrossRefGoogle Scholar.

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9. Harris, “Snares of Liberalism?” 149–52; Dubofcky, State and Labor, 128–31.

10. Ferguson, Thomas, “From Normalcy to New Deal: Industrial Structure, Party Competition, and American Public Policy in the Great Depression,” International Organization 38 (Winter 1984): 41–94CrossRefGoogle Scholar; Ferguson, Thomas, “Industrial Conflict and die Coining of the New Deal: The Triumph of Multinational Liberalism in America,” in The Rise and Fall of die New Deal Order, 1930–1980, ed. Fraser, Steve and Gersde, Gary (Princeton, N.J., 1989), 19–20Google Scholar; Gordon, Colin, New Deals: Business, Labor, and PoUacs m America, 1920–1935 (Cambridge, 1994), 166–239Google Scholar.

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12. Klare, Karl, “The Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937–1941,” Minnesota Law Review 62 (March 1978): 265–339Google Scholar.

13. Levine, Rhonda F., Class Struggle and the New Deal: Industrial Labor, Industrial Capital, and the State (Lawrence, Kan., 1988), 133–36Google Scholar; Tomlins, Christopher, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (Cambridge, 1985), 103–47Google Scholar.

14. Tomlins, State and the Unions, 103–243. See also Nelson Lichtenstein, “Great Expectations: The Promise of Industrial Jurisprudence and Its Demise, 1930–1960,” in Industrial Democracy in America, ed. Lichtenstein and Harris, 113–41.

15. Dubofsky, State and Labor, 162–66. See also Gall, Gilbert J., “CIO Leaders and the Democratic Alliance: The Case of the Smith Committee and the NLRB,” Labor Studies Journal 14 (Summer 1989): 3–27Google Scholar, and Stryker, Robin, “Limits of Technocratiiarion of the Law: The Elimination of the National Labor Relations Board's Division of Economic Research,” American Sociological Review 54 (1989): 341–58CrossRefGoogle Scholar. A kind of side issue in the context of labor history and industrial relations is the role of the Wagner Act cases, notably Jones and Laughlin, in reshaping the U.S. polity in areas well beyond the labor relations Aeld. See Orren, Karen, Belated Feudalism: Labor, die Law, and Liberal Development in the United States (New York, 1991), 204–30Google Scholar, and Cortner, Richard C., The Wagner Act Cases (Knoxville, Tenn., 1964), 191–92Google Scholar.

16. Tomlins, State and the Unions, 282–316.

17. Lee, R. Alton, Truman and Taft-Hardey: A Question of Mandate (Lexington, Ky., 1966)Google Scholar; Patterson, James T., Mr. Republican: A Biography of Robert A. Taft (Boston, 1972), 352–66Google Scholar; Hartmann, Susan M., Truman and the 80th Congress (Columbia, Mo., 1971), 87–90Google Scholar; Hamby, Alonzo, Beyond the New Deal: Harry S. Truman and American Liberalism (New York, 1973), 194Google Scholar. Neither Hamby's nor Robert Ferrell's recent biographies of Truman, (Man of die People: A Life of Harry S. Truman [New York, 1995]Google Scholar; Harry S. Truman: A Life [Columbia, Mo., 1994]) devotes sustained attention to Taft-Hardey. Gross's account of Truman's veto of Taft-Hardey (Reshaping of die National Labor Relations Board, 251–59) contains excerpts from a remarkable interview with board member James Reynolds indicating that Truman actually favored the anti-union law but vetoed it as part of his strategy to gain AFL and CIO support for his foreign-policy initiatives.

18. Halpern, Martin, UAW Politics in the Cold War Era (Albany, N.Y., 1988), 201–4Google Scholar; Keeran, Roger, The Communist Party and die Auto Workers Unions (Bloomington, Ind., 1980), 273–85Google Scholar.

19. On the general labor relations policies of die Truman administration, see the following articles by Bernstein, Barton J.: “The Removal of War Production Controls on Business,” Business History Review 39 (Summer 1965): 243–60CrossRefGoogle Scholar; “The Truman Administration and Its Reconversion Wage Policy,” Labor History 6 (Fall 1965): 214–31CrossRefGoogle Scholar; “The Truman Administration and the Steel Strike of 1946,” Journal of American History 52 (March 1966): 791–803CrossRefGoogle Scholar; and “Walter Reuther and the General Motors Strike of 1945–1946,” Michigan History 49 (September 1965): 260–77Google Scholar. George lipsitz's critique of the labor movement is found in Class and Culture in Cold War America: “A Rainbow at Midnight” (New York and South Hadley, Mass., 1981)Google Scholar.

20. Gross, Broken Promise, 1–71. On individual-vs.-collective rights in the history of American legislation, see Melvyn Dubofsky, “A Fatal Flaw: Individual Rights and the Wagner Act,” paper presented at the annual meeting of the Industrial Relations Research Association, San Francisco, 7 January 1996; cited with the author's permission.

21. Recent publications by distinguished labor historians, however, do advance the project of linking historical development of post-Wagner labor law and contemporary policy debate. See Nelson Lichtenstein, “Work Rights, Individual Rights,” Dissent (Spring 1997): 66–72; and David Brody, “Labor Elections: Good for Workers?” Dissent (Summer 1997): 71–77.

22. Rogers, Joel, “Divide and Conquer Further Reflections on the Distinctive Character of American Labor Laws,” Wisconsin Law Review 1 (1990): 1–148Google Scholar.

23. James Atleson, Values and Assumptions in American Labor Law, idem, “Wartime Labor Regulation, the Industrial Pluralists, and the Law of Collective Bargaining,” in Industrial Democracy in America: The Ambiguous Promise, ed. Nelson Lichtenstein and Howell Harris (Cambridge, 1993), 162–70.

24. Yale Law Journal 90 (June 1981): 1509–80CrossRefGoogle Scholar. Stone's article, along with the work of Klare, Atleson, and other scholars, some associated with the “Critical Legal Studies” perspective, has generated intense controversy within the community of historically inclined labor scholars. See Finkin, Matthew, “Revisionism in Labor Law,” Maryland Law Review 43 (1984): 23–92Google Scholar; Klare, Karl E., “Traditional Labor Law Scholarship and the Crisis of Collective Bargaining Law: A Reply to Professor Finkin,” Maryland Law Review 44 (1985): 731–840Google Scholar; idem, “Lost Opportunity: Concluding Thoughts on the Finkin Critique,” Maryland Law Review 44 (1985): 1111–23; Van Wezel Stone, Katherine, “Re-envisioning Labor Law: A Response to Professor Finkin,” Maryland Law Review 45 (1986): 978–1013Google Scholar; Finkin, Matthew W., “Does Karl Klare Protest Too Much?” Maryland Law Review 44 (1985): 1100–1110Google Scholar; and Atleson, James B., “Reflections on Labor, Power, and Society,” Maryland Law Review 45 (1986): 841–72Google Scholar. See also Schatz, Ronald W., “Into the Twilight Zone: The Law and the American Industrial Relations System since the New Deal,” International Labor and Working-Class History 36 (Fall 1989): 51–60CrossRefGoogle Scholar. Stone's more recent work stresses the role of the courts and has little to say about the responsibility of the NLRB for the current state of the labor relations regime. In effect, she argues for the replacement of the current system of corrupted pluralism with a frankly corporatist approach. See Van Wezel Stone, Katherine, “The Feeble Strength of One,” The American Prospect 14 (Summer 1993): 60–66Google Scholar; idem, “The Legacy of Industrial Pluralism: The Tension between Individual Employment Rights and the New Deal Collective Bargaining System,” University of Chicago Law Review 59 (Spring 1992): 575–644. “Forum,” Industrial Relations Law Journal 4 (1981): 449–506Google Scholar, which presents papers delivered at a session of the American Society for Legal History, 25 October 1980, provides a good early review of these themes. See especially Karl Klare, “abor Law as Ideology: Toward a New Historiography of Collective Bargaining Law,” 450–82, and Melvyn Dubofsky, “Legal Theory and Workers' Rights: A Historian's Critique,” 496–502.

25. See also Tushnet, Mark, “The Legitimation of the Administrative State: Some Aspects of the Work of Thurgood Marshall,” Studies m American Political Development 5 (Spring 1991): 94–118CrossRefGoogle Scholar, and Holt, Wythe, “The New American Labor Law History,” Labor History 30 (Spring 1989): 275–93CrossRefGoogle Scholar.

26. Dickman, Howard, Industrial Democracy in America: Ideological Origins of National Labor Relations Policy (La Salle, Ill., 1987)Google Scholar; Epstein, Richard A., Bargaining with the State (Princeton, N.J., 1993)Google Scholar; Epstein, Richard A., “A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation,” Yale Law Journal 92 (July 1983): 1357–1408CrossRefGoogle Scholar; German, Julius G. and Kohler, Thomas C., “The Common Law, Labor Law, and Reality: A Response to Professor Epstein,” Yale Law Journal 92 (July 1983): 1415–34Google Scholar; Epstein, Richard A., “Common Law, Labor Law, and Reality: A Rejoinder to Professors Getman and Kohler,” Yale Law Journal 92 (July 1983): 1435–41CrossRefGoogle Scholar; Dubofsky, Melvyn, review of Epstein, Bargaining with the State, in Industrial and Labor Relations Review 48 (April 1995): 583–84Google Scholar; Gross, James A., review of Dickman, Industrial Democracy in America, in American Historical Review 93 (October 1988): 1133–34CrossRefGoogle Scholar; Barenberg, “The Political Economy of the Wagner Act,” 1382–83, 1392–96.

27. Moe, Terry M., “Interests, Institutions, and Positive Theory: The Politics of the NLRB,” Studies in American Political Development 2 (1987): 236–99CrossRefGoogle Scholar. Neither McConnell, Grant, Private Power and American Democracy (New York, 1966)Google Scholar, nor Lowi, Theodore, The End of Liberalism: The Second Republic of the United States, 2d ed. (New York, 1979)Google Scholar, examines the NLRB, but both, are classic statements of the post-New Deal state's character as an arena in which bureaucratic rules sharply delimit and constrain social conflicts and the advancement of public purposes.

28. Gross, Broken Promise, 280–86; idem, “The Demise of die National Labor Policy: A Question of Social Justice,” Restoring the Promise of American Labor Law, ed. Friedman, Hurd, Oswald, and Seeber, 45–58. See also Weiler, Governing the Workplace.

29. Stone, “The Legacy of Industrial Pluralism.” See also Summers, “Labor Law as the Century Turns,” 20–21.

30. Thus see Peter Irons's comments, published in 1982, on disaffection with the New Deal regulatory system in The New Deal Lawyers, 295–300.

31. Lichtenstein, Nelson, The Most Dangerous Man in Decroit: Walter Reuther and the Fate of American Labor (New York, 1995)Google Scholar; Boyle, Kevin, The UAW and the Heyday of American Liberalism, 1945–1968 (Ithaca, N.Y., 1995)Google Scholar.

32. Orren, Karen, “Union Politics and Postwar Liberalism in the United States, 1946–1979,” in Studies in American Political Development: An Annual, ed. Orren, Karen and Skowronek, Stephen (New Haven, 1986), 1: 215–54Google Scholar; DiTomaso, Nancy, “Class Politics and Public Bureaucracy: The U.S. Department of Labor,” Classes, Class Conflict, and the State, ed. Zeitlin, Maurice (Cambridge, Mass., 1980), 135–52Google Scholar.

33. Gall, Gilbert J., The Polities of Right to Work: The Labor Federations as Special Interests, 1943–1979 (Westport, Conn., 1988)Google Scholar; Draper, Alan, A Rope of Sand: The AFL-CIO Committee on Political Education, 1955–1967 (New York, 1989)Google Scholar. The appearance of Stebenne, David L., Arthur J. Goldberg: New Deal Liberal (New York, 1996)Google Scholar, however, is a hopeful sign.

34. See, for example, Fink, Gary M., “Fragile Alliance: Jimmy Carter and the American Labor Movement,” in Rosenbaum, Herbert D. and Ugrinsky, Alexej, eds., The Presidency and Domestic Policies of Jimmy Carter (Westport, Conn., 1994), 782–803Google Scholar; Taylor Dark, “Organized Labor and the Carter Administration: The Origins of Conflict,” in ibid., 61–82; Fink, Gary M., “F. Ray Marshall: Secretary of Labor and Jimmy Carter's Ambassador to Organized Labor,” Labor History 37 (Fall 1996): 463–79CrossRefGoogle Scholar; Dark, Taylor, “Organized Labor and the Presidential Nominating Process,” Presidential Studies Quarterly 26 (Spring 1996): 391–401Google Scholar; idem, “Organized Labor and the Congressional Democrats,” Political Science Quarterly 111 (Spring 1996): 83–114; idem, “Organized Labor and Party Reform: A Reassessment,” Polity 28 (Summer 1996): 497–520; and Halpern, Martin, “Jimmy Carter and die UAW: Failure of an Alliance,” Presidential Studies Quarterly 26 (Spring 1996): 755–77Google Scholar.