For those of us who remember the NAFTA protests or who have fought against Cory Booker or Rahm Emmanuel in the war against teachers, it should be clear that liberalism is not an ideology friendly to organized labor. And yet so many of the major unions endorsed Hillary Clinton for president, even before the end of the primary when the obviously more pro-labor candidate was still in the race.
Leaving all the worthwhile critiques of modern labor leadership aside for a moment, what we have seen in the nomination of “literally the worst” Andrew Puzder alone makes union support of Democrats somewhat understandable. After all, even the most “third way” (thirdest?) Democrat would not dare to appoint a fast food CEO to the Department of Labor.
Well not quite – Hillary Clinton purportedly would have nominated Starbucks CEO Howard Schultz for the position. But we do not need to dig into speculation about a hypothetical Democrat president who will never be. Because the untold story of unions being busted in the neoliberal era is that it was started a decade before Reagan took office by a liberal justice of the Supreme Court.
To understand exactly how Justice Brennan stuck it to organized labor in 1970, we need to briefly go over the history of labor arbitration in the United States. The Great Depression was both a triumphant time for labor and a horrible time for labor. Across the country, unions (often led by the Communist Party, the IWW, and other far-left vanguards) won incredible victories through sit-ins, slow-downs, and strikes. But for every glorious victory there was also a violent defeat. This was the era of a strike breaks by the government and when Justice Brennan writes that the government were “allies of management,” he commits an injustice of omission. For the government were not merely allies – they violently ended strikes at the bequest of management by overlooking company-hired “toughs,” sending in the police, or even sending in the military. Hundreds of people died from such actions, and people already at the fringe of society were further condemned by being branded criminals. It is one of the vilest legacies of this country’s history.
But the Leftist unions were gradually winning despite the awesome power of the state being set against them. Combined with the failure of the state to even guarantee basic necessities for the working class, the capitalists knew they were dangerously close to what had all too recently happened in Russia. Particularly the newly formed CIO union, aided by figures like Eugene Debs, were able to pressure the Republican Hoover administration into signing the Norris-La Guardia Act, arguably the most pro-labor law ever enacted. They needed to do something to turn labor against itself and preserve capitalism. So they put forth a new kind of candidate, the only social democrat ever to be elected president in this country, but with sufficient ties to their class to preserve capitalism. Under President Franklin Delano Roosevelt, the National Labor Relations Act (NLRA) was enacted and modern labor law was born.
Norris-La Guardia and the NLRA were very different laws with very different intent. Norris-La Guardia was a solidly pro-labor law: it banned yellow dog contracts (making workers promise not to join a union before hiring), gave workers a right to organize without inference with employers, and prohibited the federal court from issuing injunctions against any peaceful worker action including but not limited to sit-ins and strikes. The legislative history and statutory intent are clear: workers need to organize to fight for better working conditions and must be protected in their full right to do so.
The NLRA conversely sought to reframe the climate of class war with liberal notions of formal equality. Rather than recognition of unions only having power through their collective action, the NLRA created a legal fiction that the objective of all parties was “industrial peace.” This industrial peace was achieved by a quid pro quo formally adopted by the Court in Textile Workers Union v. Lincoln Mills in 1957: the mere existence of a collective bargaining agreement (CBA) between the union and the company was an implicit promise by the union to not strike. In exchange for this promise, the company would submit itself to arbitration for grievances as outlined in the CBA.
Like most kinds of liberal formal equality, this quid pro quo is anything but equal: while unions are strictly held to not striking, the company can exercise bargaining power to construct arbitration proceedings that benefit them over the workers. Along with the Taft-Harley Act, this was the liberal defusing of the working class power organized in the early 20th century, attempting to replace it with an equilibrium that could not be sustained. Had the economic circumstances not been as favorable for the United States, due in large part to bombing the competition into rubble in World War II, it would have fallen apart even more quickly. Companies could afford to keep wages steady in the name of “industrial peace.” But in capitalism the tendency of the rate of profit is to fall – and once it began to seriously fall in the late 1960’s, the companies began to look for ways to keep it from falling, and thus ushered in the neoliberal era.
The neoliberal era required a 180-degree turn: the “industrial peace” needed to be broken in order to crush the unions and thus the wages. So like some sort of youtube conspiracy theory, the liberals created a false flag operation, blaming the economic woes on greedy unions breaking the no-strike provisions of their CBAs. The actual stories behind this messaging are not very convincing. One such story was the strike at Boys Market which Justice Brennan used to issue his landmark Boys Market, Inc. v. Retail Clerks Union decision in 1970. From the description by Justice Brennan it sounds like a clear example of unions bucking the very process they agreed to, like toddlers having a temper-tantrum. The store had brought in non-union employees to stock a fridge, the union complained, and then went on strike. The employer went to court petitioning for an injunction against the strike, citing that they would suffer an irreparable harm if they had to wait until arbitration was over for the strike to end.
But the union’s lawyer, Kenneth M. Schwartz, pointed out the hypocrisy of focusing on the union breaking the CBA’s no-strike provision during oral arguments. It was the employer that had violated the terms of the agreement first. The union did not go to court upon that violation to order an injunction despite the fact that it would cause irreparable harm to the workers displaced. When Justice White suggested that backpay would be sufficient, Attorney Schwartz strongly dissented:
No! Not a bit, not anymore so than it would be in regard to the strike situation for the employer for the simple reason, you say he risk covers damages when he recovers back pay. That period of time that that individual has to feed his family, he has to wait until the arbitrator’s award comes out…Most of our people today are — have credit up to their ears and when they go ahead and don’t get pay while they’ve got problems. Now, what irreparable injury he may have, I don’t know he may lose his house. He may not make his car payments and lose his car.
The union never opposed Boys Market going to court and ordering arbitration. And they even expressed that if the arbitrator found the strike to be in violation that they would accept having to pay Boys Market damages. Contrary to the majority opinion, this was not an instance of a union stubbornly violating industrial peace. It was an instance of an employer violating the industrial peace, the union fighting back, and the employer seeking the state’s power to quell that resistance. And even Justice Brennan slips up occasionally and admits the real purpose of the court stopping the strike: “Indeed, the very purpose of arbitration procedures is to provide a mechanism for the expeditious settlement of industrial disputes without resort to strikes, lockouts, or other self-help measures. This basic purpose is obviously largely undercut if there is no immediate, effective remedy for those very tactics that arbitration is designed to obviate.”
While Justice Brennan lists lockouts, apparently Boys Market’s self-help measure of hiring non-union workers against the contract does not fall into the kind of incidents requiring “immediate, effective remedy.” The quid pro quo is gone. Unions are simply obligated under threat of court order to not strike while the employers can employ their “tactics” to violate their end of the bargain.
And as Justice Black points out in dissent, the ruling overturned both precedent and a statute of the Norris-La Guardia Act unilaterally, the irony being that the law was passed particularly for fear that courts would side with the powerful.
Of course some liberals may remind me that the Court claimed their ruling was narrow and did not apply to, for example, non-arbitrable sympathy strikes (see Buffalo Forge). But the ruling was not narrow in the slightest. One of the Court’s most liberal judges revived the ability of the courts to aid management in their struggle against workers, and judges proceeded to do just that. The AFL-CIO, worried about the turn of events, quickly reached a new bargain with General Electric on unfavorable terms in 1971. Also that year injunctions were upheld against the Communication Workers of America, the Teamsters, and many others. In 1972 injunctions were upheld against the Teamsters, United Auto Workers, Amalgamated Meat Cutters, and many others. In 1973 injunctions were upheld against the Food Drivers, the Teamsters, IBEW, and many others.
In 1974 the Supreme Court gave its blessing to an injunction by Gateway Coal against the United Mine Workers of America, with only Justice Douglas dissenting as Justices Brennan and Marshall again betrayed working class people. Justice Douglas noted that the “narrow” holding of Boys Market was being ignored: the Mine Workers had reserved the right to strike over dangerous conditions in the CBA, and yet the Court stopped their strike anyways. That same year injunctions were upheld against the Carpenters Union, the Teamsters, the New York Typographical Union, the Transport Workers Union, the United Mine Workers of America (in a different case), the International Union of Operating Engineers, the Highway Workers, the Bricklayers, and many others. In 1975 injunctions were upheld against the United Textile Workers, the United Steelworkers, the Sheet Metal Workers, and many others. In 1976 injunctions were upheld against the United Transportation Union, the United Mine Workers, and many others..
In 1977 CWA attempted the flip the script by filing for an injunction against an employee transfer that violated their CBA – the court, of course, denied it and would deny similar attempts by the Teamsters. But that same year injunctions were upheld against the Bakery Drivers Union, the Oil, Chemical, and Atomic Workers, and many others. In 1978 injunctions were upheld against the AFL-CIO, the Longshoremen, and many others. In 1979 injunctions were upheld against the Newspaper Deliverers’ Union, United Mine Workers, and many others.
While Reagan’s union-busting is of course unparalleled, there must be recognition that this liberal betrayal of unions led to the number of strikes in 1980 being half of what they were in 1970. And this renewed acceptance of state power being used to quell union dissent was necessary for those like Reagan who took it to all new heights:
Liberals are no friends to labor. They only value peace when it promotes the well-being of capitalism: if the company wishes to violate the peace to shore up its profits, so be it. So the next time your local is giving its support to the Democratic Party, remind your coworkers that their ideology is exactly what got us into this mess.