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)