This is the last installment of our National Labor Relations Act Judicial Amendment series, but it is not the end this issue. You will see that we provide action information, so that you can participate in a rebirth of the NLRA. There are many doors and windows through which you can enter this struggle. We encourage you to make suggestions in the comments section about ideas for restoring the NLRA, and please invite people to read the series.
We began this series to educate people about what their rights should be under the NLRA, as written by Congress, and to explain why the NLRA operates so differently from its plain words. This series has not, by any means, told the full story of the damage done by judicial amendments. Right wing judicial activism has played a powerful role in undermining and destroying a wide range of worker rights.
This is the last post in the NLRA Judicial Amendments series, but we hope it will not be the last word on this important issue. The posts in this series reveal a pattern of the highest judges in the land having a shocking disregard for the law and a willingness to take away the rights of working people.
It is hard to believe that justices would act so lawlessly. It is hard to believe that, decade after decade, they have gotten away with it. They have, after all, sworn an oath to uphold the law, not tear it down. Justice Robert Jackson quipped, “We are not final because we are infallible, but we are infallible only because we are final.” But the judicial amendments to the NLRA are not a matter of mere human frailty.
The conservative justices’ refusal to be guided by the NLRA’s policy statements is evidence of their lawlessness. Unfortunately, many people mistakenly believe that the judicial amendments are in the NLRA that Congress enacted. That mistaken belief has led many to misdiagnose the problem. Rather than repealing the judicial amendments, some have urged repeal of the law. Some have said that workers would be better off with the law of the jungle than the NLRA.
So, What Is to Be Done?
To remedy the problem, we must identify its cause. The NLRA may be a target because its purpose is to balance power between employers and employees. As the NLRA’s policy statement points out, the law allows employers to become collective by forming partnerships or corporations, so employees need to become collective to have equal bargaining power.
The NLRA protects private sector employee collective action, but forming a union is still more difficult than an employer’s incorporating or creating a partnership. (Public sector unions for state employees are controlled by state laws and federal public sector employees are controlled by federal laws other than the NLRA.)
Congress was clear that the NLRA was enacted to promote equality of bargaining power between employers and employees. However, our Judicial Amendment series has shown many examples of Supreme Court justices’ tilting power toward employers, rather than promoting equality of bargaining power. Unions’ weakened bargaining power has led to poorer working conditions and wages so low that, for many of us, it is impossible for a family to be supported by one worker – and difficult even with two workers. Declining wages also have harmed our economy through lower buying power and fewer funds to build and repair roads and to provide high-quality public education.
On the other side of the ledger, we see the legacy of Republic Steel in extremes of wealth, much of which is generated through distortions created by the tax code. As with Republic Steel, costs are shifted from corporations to the public, further impoverishing our society and our families.
The Long, Long Tradition of Judicial Amendments
To further aid in the diagnosis, it is important to review the history of other workers’ rights laws. Even before the NLRA was enacted, the process of judicial amendments had a long pedigree.
When the NLRA was enacted in 1935, Congress was still smarting from the experience of passing earlier labor laws that were judicially amended. The 1914 Clayton Act was enacted to reverse judicial amendments to the 1890 Sherman Act. The Sherman and Clayton Acts were judicially amended to let corporations off the hook while creating limits to employee rights to organize. Those judicial amendments included giving federal courts the power to issue broad injunctions in labor disputes. In 1932, Congress passed the Norris-LaGuardia Act to overturn the Clayton Act judicial amendments that had given courts new power to thwart worker organizing.
Other workplace laws also have been amended to overturn judicial amendments. Congress amended Title VII of the Civil Rights Act, in 1978, 1991 and 2009 and the Americans with Disabilities Act (ADA) in 2008 to repeal judicial amendments. The Occupational Safety and Health Act (OSHA) and the Family and Medical Leave Act (FMLA) also have been judicially amended. To repeal the judicial amendments requires strong and wealthy supporters. In the case of the ADA, Congressman Jim Sensenbrenner used his political clout to reverse the judicial amendments. He was highly motivated, because his wife was disabled. Unfortunately, in most cases, the cost of overturning judicial amendments has been so high in terms of time and money that the amendments have not been repealed.
Peeling the Tiger – Fighting Judicial Amendments
It has been said that capital is more like a tiger than an onion. It resists being peeled with ferocity.
Those who want to learn more about judicial amendments to the NLRA, should start with reading the law itself, and pay close attention to the NLRA’s policy statements. Congress included policy statements to guide judges and others in interpreting the law.
The next step is to learn more about judicial amendments and, in particular, to learn how they usurp statutes. Several authors have written on this subject.
Charles O. Gregory’s Labor and the Law has been published in a number of editions. A 1962 review of the book says, “Everyone will be rewarded with an orderly, accurate exposition of modern labor law and its historical antecedents, spiced with an interesting, candid analysis of the judicial and legislative processes, and an equally frank appraisal and criticism of the Supreme Court treatment of many famed labor cases.”
James B. Atleson, Values and Assumptions in Labor Law (1983), builds on and expands Gregory’s work in this area. Atleson describes his book, saying, “The basic theme of the book, then, is that assumptions and values about the economic system and the prerogatives of capital, and corollary assumptions about the rights and obligations of employees, underlie many labor law decisions. Moreover, these assumptions permeate modern decision making just as they did prior to the passage of the Wagner Act. The presence of such values and assumptions, often only implicit or hinted at, helps explain many decisions.”
Karl Klare’s article “The Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness,” 62 Minnesota Law Review 265 (1978), focuses on the role of judges in taking away the ability of the law to empower workers.
Chris Rhomberg’s book, The Broken Table – The Detroit Newspaper Strike and the State of American Labor(2012), shows how two judicial amendments – striker replacement and implementation upon impasse – have weakened employees’ collective bargaining rights.
These authors have identified ways in which labor rights have been weakened, and their work continues to provide an important foundation for future work in this area.
Ellen Dannin’s book Taking Back the Workers’ Law – How to Fight the Assault on Labor Rights (2006) recommends borrowing from the NAACP Legal Defense Fund’s multidecade litigation strategy to overturn legalized racial apartheid in the United States. The book’s website includes many resources on adapting that strategy for litigating NLRA cases.
Activism and public pressure always have mattered and can affect courts, as well as legislatures. After years of silence, we are now seeing civil disobedience, marches on Washington and demands for civil rights and economic justice by workers who work for highly profitable companies but who are paid peanuts. This period sees us fighting battles for human dignity and well-being on many fronts.
In this 50th anniversary year of the March on Washington, we also should remember that it took far more than just boycotts and marches. Indeed, most people are unaware that the civil rights struggle in the US stretches back well over 100 years. The NAACP Legal Defense Fund also pursued a brilliant litigation strategy beginning many decades before Brown v. Board of Education. It was led in the generation before Brown by Charles Hamilton Houston. A similar strategy by advocates for workers’ rights, and accompanied by public pressure on many fronts, can restore the promise of the NLRA.
Another important component of the strategy is to focus on who is in the judiciary. The conservatives in Congress are trying to roll back the clock, and one of their tools is refusing to confirm judges who are not conservatives. They also hope that refusing to confirm nominated judges during a Democratic presidency will leave a huge number of vacancies that a Republican president could then fill. Many of the judges now on the bench were appointed by Reagan and Bush (father and son). While most judges do their best to administer laws fairly, many current judges accept the corporate view.
A significant study on judges found that class matters. The researchers found a strong connection between the life experiences of judges and their attitudes toward unions. They also found that those attitudes have some effect on how the judges interpret and apply law.
These days, most of the judges on the federal bench are conservatives, many from corporate or law enforcement backgrounds. Making good decisions requires the insights and balance of judges from working-class backgrounds, ones who understand the issues working people face.
This is not to say that a judge’s class controls how that judge will rule. Rather, it means that judges from diverse backgrounds can bring those experiences together as they try to reason through a case. The courts that hear NLRA cases operate in panels of three judges, and a diverse court allows judges to educate one another and come to better-reasoned decisions. To bring balance to our federal courts requires that we actively lobby our senators to support the immediate confirmation of judges who have been nominated and whose lives are on hold pending a vote.
While those judges wait to be confirmed, justice and fair treatment at work are being denied to many people. To support the goal of balance requires learning about nominees and actively supporting judges from diverse backgrounds. Recall Justice Antonin Scalia’s comment that illegally fired workers will simply sit around and eat chocolates while waiting for their back pay. Such a statement demonstrates that he does not understand the lives of working people and the desperate situation they face when they lose a job.
If we all join together, using public pressure through demonstrations, boycotts and strikes, litigation and legislative strategy and advocacy for confirmation of judges who understand the issues of workers, we can restore the NLRA to its intended purpose and improve the lives of workers – and all of us – in the United States. After all, we are all in this together. It will take time and resources and hard work, but working people are no strangers to hard work. And working together is, after all, what the NLRA is about.
It is important that we all work together on this effort, we encourage readers of the series to make suggestions in the comments about additional ways to fix the problem or strategies for implementing the suggestions we have made.
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