Has the NLRA Hurt Labor? (reviewing The State and the Unions: Labor Relations, Law and the Organized Labor Movement in America, 1880-1960 by Christopher L. Tomlins)

The University of Chicago Law Review, Feb 2016

By David M. Rabban, Published on 01/01/87

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Has the NLRA Hurt Labor? (reviewing The State and the Unions: Labor Relations, Law and the Organized Labor Movement in America, 1880-1960 by Christopher L. Tomlins)

U.S.C. §§ Has the NLRA Hurt Labor? David M. Rabbant 0 1 0 The State and the Unions: Labor Relations, Law and the Organized Labor Movement in America, 1880-1960. Christopher L. Tomlins. Cambridge University Press , New York, 1985. Pp. xvi, 348. Cloth $39.50. Paper $12.95 , USA 1 t Professor of Law, The University of Texas School of Law. Forbath , Patrick Gudridge, Laura Kalman, Stanley Katz, Karl Klare, and David Silberman , USA The past decade has seen a flowering of highly creative scholarship in labor history and labor law. Although scholars in these two disciplines occasionally refer to each other, their work has proceeded largely along independent lines. Yet these lines have been parallel, if unconnected. Much scholarship in both disciplines has been informed by revitalized traditions of radical analysis that have influenced a new generation educated in the late 1960s and early 1970s. Born in 1951, Christopher L. Tomlins is part of this new generation. In The State and the Unions, he combines an excellent synthesis of recent work in labor history and labor law with a stimulating account of the debate in the 1930s over state intervention in labor relations. His analysis of the New Deal, based on original archival research, reveals key developments within the American Federation of Labor (AFL) and the National Labor Relations Board (NLRB). Readers interested in these subjects will be fascinated by his important and well-written book. Hurt Labor? I. AN OVERVIEW The State and the Unions is much more than a presentation of original research and a useful synthesis of history and law. Identifying with the new radical critique of the liberal state, Tomlins attacks the "self-congratulatory complacency" of the theory of "industrial pluralism" that has dominated American labor scholarship since World War II (p. xii). 1 Industrial pluralists view the American system of labor law, especially the National Labor Relations Act 2 (NLRA) that stands as its centerpiece, as a brilliantly effective way of solving the conflicts between labor and management in an atmosphere that promotes industrial peace, stability, and democracy. Tomlins, in contrast, argues that the American state, largely through its legal institutions, has conditioned the legitimacy of labor activity and collective bargaining on their effectiveness as "means to higher productivity and efficient capital accumulation" (p. xiii). Like the radical theorists on whom he relies, 3 Tomlins rejects a conspiratorial or instrumental model of the impact of business elites on the law. He does not believe that corporate capitalists consciously attempted to co-opt the American working class by engineering the passage of the NLRA. Nor, however, does Tomlins view the law as a formal and autonomous system uninfluenced by business interests. Rather, he accepts the increasingly prevalent radical concept of the "relative autonomy" of the state and its law from corporate capitalism. According to Tomlins, law-the language of the state-mirrors and helps reproduce the dominant political and economic system. The law is sufficiently autonomous to permit results inconsistent with the immediate interests of capitalists, but it is this very autonomy that enables law to be especially effective in preserving the capitalist system. Tomlins views the relationship and tensions between the state and the unions as a concrete example of the relative autonomy of law (pp. xii-xiv), although he does not elaborate explicitly either the theory or the operation of this concept after he introduces it in his preface. Tomlins argues that the NLRA, while more favorable to workers and unions than prior law, continued the "contingent legiti All parenthetical page references are to Christopher L. Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880-1960 (1985). 2 29 U.S.C. §§ 151-66 (1982) (adopted in 1935). 3Tomlins cites Nicos Poulantzas and Fred Block as writers who have influenced his theoretical views (p. xiii). See, e.g., Nicos Poulantzas, Political Power and Social Classes (1973); Fred Block, The Ruling Class Does Not Rule, 33 Socialist Revolution 6 (1977); Fred Block, Beyond Relative Autonomy: State Managers as Historical Subjects, in Ralph Miliband and John Saville, eds., Social Register 227 (1980). Tomlins also incorporates perspectives from Isaac Balbus, Commodity Form and Legal Form: An Essay on the 'Relative Autonomy' of the Law, 11 Law & Society Rev. 571 (1977). macy of collective labor action [that] has been a constant theme of the development, over the last hundred years, of a corporate capitalist polity in the United States" (p. xiii). He sadly concludes that labor's reliance on the state, and particularly on the NLRA and its subsequent interpretation by the NLRB and the courts, has produced a "counterfeit liberty" for workers and unions that may be "ultimately no more than the opportunity to participate in the construction o (...truncated)


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David M. Rabban. Has the NLRA Hurt Labor? (reviewing The State and the Unions: Labor Relations, Law and the Organized Labor Movement in America, 1880-1960 by Christopher L. Tomlins), The University of Chicago Law Review, 2016, Volume 54, Issue 1,