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Colleagues: This essay is in a very early stage of development and is in many ways incomplete. It
may even be incoherent. The essay reflects my attempt to come to terms with an argument I once
actively supported but have found increasingly doubtful. In this respect, the fact that I have drafted
it just after having published a book on the “Little Steel” Strike and in the midst of researching
and writing anther on the criminalization of radical labor is certainly not a coincidence. I offer the
essay for discussion because I think it takes up an important issue that is well worth debating.
However, I am not in any way wedded to its claims (or premises) and welcome all criticisms.
Its Own Dubious Battle: The Impossible Defense of an Effective Right to Strike
Ahmed White
Introduction
“They say ‘you got a right to strike but you can’t picket,’ an’ they know a strike won’t
work without picket-in’.” This is the angry lament of Mac McLeod, a central
character in John Steinbeck’s 1936 novel, In Dubious Battle, delivered just after Mac
and fellow unionists are enjoined by a carload of heavily-armed police “to keep
order.” “You can march as long as you don’t block traffic,” said the head cop, “but
you are not going to interfere with anybody. Get that?”1
Recently adapted to film, the short novel is considered one of Steinbeck’s finest. It
is also perhaps the most powerful depiction of a labor strike in American literature.
A bitter reflection on the intense interpersonal conflicts, moral dilemmas, and
political impasses that are central to labor struggles, the book tells the tragic story of
a fruit-pickers strike led by radicals in Depression Era California. It broaches a set of
crucial issues, which are seldom discussed anymore, concerning the nature of strikes
and class struggle in liberal society.
Throughout the modern history of this country strikes have been a vital ground of
social struggle and political conflict, and yet also steeped in tragedy and frustratingly
ineffective. For much of this history, “hitting the bricks” was a way for workers to
push back against capitalist employers. Sometimes the strikers succeeded. But often
enough, they were repaid with arrests, beatings, and blacklisting, and the strikes
ended in failure, sometimes with blood pooled on the streets and soaked into the
dirt, as in Steinbeck’s story. Hundreds, probably thousands lost their lives. And yet
workers in their millions downed the tools and picketed, convinced that doing so
1
John Steinbeck, In Dubious Battle 125 (New York: Penguin, 1992) (1936).
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was not only necessary to their immediate interests but a mandate of their position in
class society.
In 1935 the National Labor Relations Act (or Wagner Act, in its early form)
purported, for the first time in American history, to extend a definite, enforceable
right to strike to most American workers. Not coincidentally, the years surrounding
its enactment featured the most intense wave of labor conflict in the country’s
history. When the statue became effective two years later (having been widely
ignored by employers and tied up by the courts), the violence of strikes began to
diminish, though not so much their frequency. For much of the postwar period,
strikes remained common even as they also became less ambitious in their aims and
less militant in their conduct. But beginning about forty years ago, things changed
again. Strikes suddenly became rare as well, to the point that workers today basically
do not strike at all. Militancy of the sort that was commonplace when Steinbeck
wrote his book, along with the open strife and bloodshed that accompanied it, are
nearly unheard of.
The waning of bloody battles may be a good thing. But there is not much to
celebrate about the overall demise of strikes—not if you are a worker or care about
the working class. For strikes are the most important mode of working class protest,
the best way for workers to challenge capitalist hegemony and alter the terms of
exploitation. As they have declined, so has the strength of the labor movement and,
with this, the ability of workers to challenge capitalist hegemony in the workplace
and to alter the terms of exploitation. And so it is that with the demise of strikes,
wages have stagnated, inequality skyrocketed, and the everyday caprices and tyrannies
of capitalist management have been entrenched in a contradictory array of capricious
indignities and suffocating bureaucratic rules.
They are integral to the practical struggles of the working class and to the cause of
human dignity in the face of exploitation. Yet they are also, if they are serious and
apt to matter, inherently coercive, captive to all that makes the quest for equality and
human dignity so difficult, and prone to descend into a level of violence which
threatens to disqualify them as legitimate forms of protest. Consequently, they are
also difficult to win and difficult to sustain as a mode of activism. They cannot be
understood apart from this, a dilemma which, as Steinbeck understood, makes them
so vital in the first place—and a good thing to write a book about.
Nevertheless, in most quarters the decline in strikes has been taken in strike, if
noticed at all. For most people it seems, strikes are hardly more than historical relics
or quaint curiosities. Once a preoccupation of government and the subject of
numerous hearings, reports, and legislation, they are now rarely of any interest to the
political class either. Where politicians once worried over how to deal with strikes of
the kind that Steinbeck fictionalized, they stand mute in the face of their extinction.
It has been nearly thirty years since anyone in Congress, for example, has bothered
to lament the decline in strikes; and even then, their protests, which surrounded
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efforts in the early 1990s to enact modest changes in the law relative to employers’
use of replacement workers, hardly seemed to drip with genuine passion.2
Among the few Americans who well remember what strikes are and why they are
important are labor scholars. For a fair number of them, at least, strikes remain a
preoccupation. And the link between the decline in strikes and the dire conditions
of the labor moment and the working class is not only obvious but the basis of an
understanding that strikes are integral to unionism and vital to the functionality of
the labor law and its administrative machinery. Strikes are necessary. And for these
scholars a major reason that they are so uncommon is that for most workers striking
has become little more than a dalliance with unemployment and economic ruin that
is unlikely to yield the strikers anything of tangible value anyway. The problem, as
these scholars see it, is the lack of an effective right to strike.
So it is that prominent scholars like James Atleson, Jack Getman, Karl Klare, and Jim
Pope—to name the most notable of this group—have expended much effort over
the past few decades identifying and critiquing legal doctrines which have
undermined the right to strike. Conspicuous in this regard are doctrines that give
employers the prerogative to replace striking workers almost on a whim; that allow
employers to enjoin and even fire strikers on the ground that they have engaged in
coercive “misconduct,” or because that they have protested the wrong issue or in the
wrong way; that prohibit sympathy strikes and general strikes; and that funnel labor
disputes off of shop floor and picket lines and into legal proceedings and
arbitrations. These doctrines have eviscerated a once-vital right to strike, these
scholars tell us. If these doctrines can be overturned, they suggest, an effective right
to strike can be restored and a number of very positive things should follow: the
labor law can be revitalized, the efficacy of collective bargaining can be restored, the
labor movement can be resurrected, and the exploitation and inequality that define
the lives of so many workers redressed.3
See for example, U.S. House of Representatives, Hearings before the Subcommittee on LaborManagement Relations of the Committee on Education and Labor: Hearings on H.R. 5, the Striker
Replacement Bill, 102nd Cong., 1st Sess., (Washington, DC: GPO, 1991), passim; U.S., House of
Representatives, Hearings before the Housing Subcommittee of a Committee on Government
Operations: Collective Bargaining and the Hiring of Permanent Replacement Workers, 102nd Cong.,
2nd Sess. (Washington, DC: GPO, 1992), passim; U.S. Senate, Hearings before the Subcommittee on
Labor of the Committee on Labor and Human Resources: Preventing Replacement of Economic
Strikers, 101st Cong., 2nd Sess. (Washington, DC: GPO, 1990, passim; Comments of Representative
Owen, 137 Cong Rec H 2073, Mar. 22, 1991; 137 Cong Rec H 5455, July 16, 1991.
3 James B. Atleson, Values and Assumptions in American Labor Law (Amherst, MA: University of
Massachusetts, 1983); Julius G. Getman, The Supreme Court on Unions (Ithaca, NY: ILR 2016), pp.
52-68; James Gray Pope, How American Workers Lost the Right to Strike, and Other Tales, Michigan
Law Review 103 (December 2014): 518; Karl Klare, Judicial Deradicalization of the Wagner Act and
the Origins of Modern Legal Consciousness, 1937-1941, Minnesota Law Review, 62 (1978): 265. See
also Julius G. Getman and F. Ray Marshall, The Continuing Assault on the Right to Strike, Texas Law
Review, 79 (February 2001): 703, 718. I have also contributed to this literature. See for example,
Ahmed A. White, Mutiny, Shipboard Strikes, and the Supreme Court’s Subversion of New Deal
Labor Law, Berkeley Journal of Employment and Labor Law, 25 (2004): 275.
2
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On the surface this campaign to reestablish the right to strike makes a great deal of
sense. After all, the capacity of strikes to pressure employers, alter the terms of
exploitation, and energize the labor movement is obvious. Who, then, can profess to
support the interests of workers and yet not argue for a stronger, more robust, and
more meaningful right to strike? Who but a shill for employers’ interests could
possibly believe otherwise? Or justify the doctrines that limit the right to strike?
And what could be so bad about giving workers more legal protections in this realm
anyway? If strikes are important is not the right to strike also important?
Not least does all this seem true because strikes were for a time so vital, particularly
in the 1930s and 1940s, when a massive wave of labor protest not only gave rise to
the modern labor movement but helped validate the Wagner Act and ensure the
survival of the New Deal—even as it also seemed to reflect the Act’s success in
conveying to workers, for the first time, an effective right to strike. The problem, we
are told, is that the statute was later weakened and corrupted by the connivances of
judges and Congress, urged on by a business community relentless in its contempt
for organized labor, and abetted at times by inept or corrupt union leaders and a
weak and political diffident National Labor Relations Board (NLRB). And so the
Wagner Act is said to have had a great potential, only to have been tragically
“deradicalized,” as Klare puts it, and workers to have “lost” the right to strike, in
Pope’s words.
Intuitively, at least, defending the right to strike seems like a battle that must be
fought. Nevertheless, intuitions, even sober judgements, are often wrong, despite
their visceral appeal or the basic truth of their premises. And a critical reflection of a
sort that actually seems quite long overdue suggests something very different about
the right to strike—that maybe this preoccupation with the right to strike is
unfounded, and that the time has come for those who support workers’ interests to
thoroughly rethink their interest in the right to strike, in its utility as a scholarly
subject, and in its value for unions and the workers they represent. Maybe the
struggle to revitalize an effective right to strike has been as dubious a battle as the
most hopeless of walkouts.
This doleful conclusion rests on an understanding that strikes subsist in context of a
legal and political system dominated by liberal values of property and order that are
fundamentally antithetical to an effective right to strike. This was true in the 1930s
and 1940s when these values contradicted whatever radical potential the Wagner Act
may have had; and it is even truer today. Indeed, the kinds of strikes that are
coercive enough to be effective, and that were so important back in the 1930s and
1940s, have never been and never will be embraced as authentic rights in liberal
society, given the affronts to private property, to dominant visions of public order,
and of course to capitalists interests, that such strikes inevitably entail. And yet the
kinds of strikes that do not share these features—that are not disorderly affronts to
property and order—can almost never constitute useful means of advancing
workers’ interests. These strikes, which actually still do enjoy legal sanction, also do
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little to challenge employers’ interests and are not really worth undertaking. Seen in
this light, those doctrines that have undermined the right to strike are not aberrations
or jurisprudential failings—not mistakes in any sense, in fact—but a settling of the
law law on bedrock precepts of the American political and social order, however
illegitimate those precepts may be.
All of this, I argue, is plainly evident in the history of strikes and striking. To
anticipate a bit more of the argument that follows, the strikes most crucial to the
building of the labor movement in the 1930s and 1940s were not conventional
strikes but sit-down strikes and mass picketing. And these were never considered
lawful. Ironically, they legitimated the Wagner Act itself and the New Deal, but
could not legitimate themselves. For a brief time, they were tolerated or endured by
courts, police, and politicians—but only barely, and only because they unfolded in a
unique historical context defined by economic crisis and a fortuitous convergence of
political forces. Those who call for resurrecting the right to strike argue that this also
seemed to reflect the politics of the original Wagner Act before it was “deradicalized.” In partial defense of this notion, the Act was at least ambiguous on the
question of the legal status of strike militancy. But what seems more certain—and
more relevant in any case—is that the militant affronts to property and social order
that made these strikes effective would be reined in, whatever the statute might have
suggested.
As for strikes in the conventional, lawful sense, they entail little more than the right
simply to quit work. Their power necessarily consists entirely of the ability of
workers to pressure employers by withholding labor, while also maybe bolstering the
morale of workers. But while morale is not irrelevant, it is, in the end, not an
effective weapon in its own right. (Nor is it advanced in any way when strikes are
broken.) And the withholding of labor, unless it could be managed on very large
scale—something the law also tends to prohibit, by barring sympathy strikes and
general strikes—is also inherently ineffective in all but a vanishingly small number of
cases where workers remain irreplaceable. Striking in a conventional way accords
with liberal notions of property and social order but precisely because of this is
simply not coercive enough to be effective. And it is bound to remain ineffective,
particularly in a context were workers outnumber jobs, where mechanization and
automation have steadily eaten away at the centrality of skill, where the perils to
employers in the course of labor disputes are as impersonal as the risks to workers
are not, where employers wield overwhelming advantages in wealth and power over
workers—where, in fact, capital is capital and workers are workers.
In other words, the right to an effective strike is itself a chimera, an impossible
fantasy; for while the right to strike in conventional ways may be resuscitated, it is
unthinkable that the right to an effective strike could ever be realized. The campaign
to accomplish this is therefore not only a dead end and a distraction, but an
undertaking that risks obscuring capitalism’s fundamental hostility to the interests of
workers behind a pointless and reifying challenge to the means by which it expresses
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and rationalizes this hostility. It is for this reason, I argue, that the call for an
effective right to strike must be abandoned in favor of more direct endorsement of
militancy and the politics necessary to advance the interests of the working class,
regardless of what the law might hold.
The argument that follows consists of a further elaboration of these main
contentions about the history of striking and the nature of strikes in liberal society,
augmented by a discussion of the legal terrain on which striking has played out. In
developing this thesis, my purpose is not to denigrate the attempt to defend striking,
let alone the faith in militancy that underlies efforts to revitalize the right to strike.
Rather, as one who has actually participated in this effort, my aim is to expose this
program as a practical dead end and its critique as mired in a stubborn faith in the
same liberalism that, contradictorily, forecloses an effective right to strike in the first
place.
Charting the History of the Right to Strike in Practice and Discourse
In order to critique the right to strike, it is important to understand how the concept
has evolved, and in particular how its meaning has been entwined with the practical
and legal history of strikes and striking. In this vein, the most salient factor has been
the elusiveness though much of American history of workers’ ability to strike at all.
Certainly this was true in the early history of modern, post-bellum American labor
relations when merely to quit work in a concerted way was to court arrest,
injunction, and prosecution, if not also violence at the hands of police, militiamen,
and company agents. Among notable examples of this was the “Great Steel Strike”
of 1919-1920, the largest strike to that point in American history, during which
workers who deigned simply to stay at home were accosted in their houses by police
and forced back to work.4 Even more frequent, of course, was the use of such
intimidation to preempt strikes by preventing workers from ever affiliating with
unions in the first place.
In these early years of America’s labor history, picketing by strikers was often
considered coercive provocation in and of itself, and therefore worthy of being
repressed by means both legal and extralegal. In this period prior the recognition of
a right to picket under the First Amendment, it was not at all uncommon for courts
to take this view—in a 1921 case called Truax v. Corrigan, even the U.S. Supreme
Court intimated as much—and thereby justify such repression.5 When workers
raised the stakes in the course of a labor dispute and tried to augment the effect of
William Z. Foster, The Great Steel Strike and its Lessons (New York: Arno, 1969), p. 135. On the
right to strike in this period, see See also Report of the Industrial Commission on the Relations and
Conditions of Capital and Labor Employed Manufacturing and General Business (Washington, DC:
GPO, 1901), pp. lxxii-lxxiii.
5 Truax v. Corrigan, 257 U.S. 312 (1921). See also Pre’ Catelan, Inc. v. International Federation of
Workers, 188 N.Y.s. 29, 33 (N.Y. Special Term 1921); Atchison Co. v. Gee, 139 F. 582, 584 (C.C.S.D.
Iowa 1905).
4
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merely quitting their jobs by engaging in boycotts or coercing replacement workers,
by organizing general strikes, or by undertaking to defend themselves form violence
visited on them by employers and their allies, they all but guaranteed they would face
the full force of labor repression, again both legal and extralegal. These
circumstances, which defined the course of innumerable smaller strikes, are what
made names like Haymarket, Pullman, Paint and Cabin Creek, and Ludlow the very
symbols of class conflict in American history.6
Governments at every level generally supported the repression of strikes as well as
picketing and boycotts. Both federal and state courts were especially active in this
regard. They issued thousands of injunctions prohibiting strikes and boycotts; and
in the case of the federal courts, they also invalidated nearly every attempt by
workers and their supports to advance labor rights by legislation. Faced with this
implacable hostility, the labor movement developed a broad-ranging skepticism
about the role of the state and the value of the law as a means of advancing workers’
interests. The main labor federation, the American Federation of Labor (AFL),
hewed to a “voluntarist” approach which saw labor’s most important right as the
right to be left alone by the state to fight its own battles—battles which, the
federation assured everyone who would listen, would not involve excessively militant
tactics or radical aspirations anyway.7 A smaller organization which nonetheless
wielded an outsized influence, the Industrial Workers of the World (IWW)
epitomized a different turn on the same theme. Stridently anti-capitalist, and
convinced that the state and its legal system were inviolate servants of ruling-class
interests, the IWW also eschewed the support of the state and repudiated formal
political activism in favor of “direct action”—strikes, primarily—in defiance of
capitalist repression.8 These very different organizations were in this way united in
their view that the right to strike was less a matter of embracing the protections of
the law than confronting its impositions.
Most legal scholars at this time categorically rejected the IWW’s radicalism and many
rejected the notion of a right to strike almost as categorically.9 Those who did
endorse a right to strike started from the assumption that strikes might be lawful, but
if and only if they featured neither overt violence nor undue coercion. Beyond this,
they followed a roughly similar course to that of the AFL, at least, on the question of
the role of law and the state. The right to strike was something that would be
realized by qualifying legal limitations like the injunction doctrine, and reigning in the
Philip Taft and Philip Ross, American Labor Violence: It’s Causes, Character, and Outcome in Hugh
D. Graham & Ted R. Gurr eds., Violence in America (New York: Signet, 1969), p. 270. For a review
of the dynamics of labor repression in early Twentieth Century America, see United States
Commission on Industrial Relations: Final Report (Washington, DC: GPO 1916).
7 This link between voluntarism and repression is particularly well developed by William Forbath in
his story of labor injunctions. William E. Forbath, The Shaping of the American Labor movement,
Harvard Law Review 102 (1989): 1109.
8 On the IWW’s attitude toward the state and its legal system, see Melvyn Dubofsky, We Shall Be All:
A History of the Industrial Workers of the World (Urbana: University of Illinois, 1969), pp. 138-141.
9 See for example Moorfield Storey, The Right to Strike, Yale Law Journal 32 (December 1922): 99.
6
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mobilization of police and guardsmen to vigilantism.10 The right to strike was thus
expressed contradictorily, in negative, “voluntarist,” terms—as an argument against
government (or quasi-government) interference with the right.
The attempt to intellectualize this position involved an interesting campaign to
present the right to strike as a mandate of the Thirteenth Amendment, albeit one
that did not progress in practice beyond confirming the right to quit one’s job.11
Less interesting but more successful was the pragmatic argument that the widespread
use of injunctions against strikers was incompatible with fundamental precepts of
American jurisprudence—including, for instance, notice and due process—and was
bad social policy to boot. This perspective was perhaps most fully intellectualized in
the landmark critique of injunctions by Felix Frankfurter and Nathan Greene,
published in 1930.12 It found footing in Congress and was codified first in the
Clayton Act of 1914, which was judicially emasculated, and then in the more
effective Norris-LaGuardia Act of 1932, which dramatically limited the power of
federal courts to issue injunctions in labor disputes.13
Despite these efforts, the capacity of workers to strike free of government
interference and employer reprisals remained limited. The outlines of a right to
strike existed, to be sure, but nothing resembling an effective right to strike was yet
in place. And so it was that through the 1920s, workers who did go out on strike
risked arrest, imprisonment, civil liability, discharge, blacklisting, assaults, and even
death.
The New Deal and the changes in labor politics that attended its attempt to
transform the relationship between capital and the state did not makes strikes any
less contentious or risky for workers, at least not immediately; but these
developments did very much alter the status of strikes in practice and in concept.
Section 7(a) of the National Industrial Recovery Act, enacted in 1933, and various
provisions of the Wagner Act (especially and §§ 7 and 13), enacted in 1935, for the
first time codified a right to strike, alongside the other basic labor rights of self-
See for example Duane McCracken, Strike Injunctions in the New South (Durham, NC: North
Carolina University Press, 1931); Picketing by Labor Unions in the Absence of a Strike, Harvard Law
Review 40 (April 1927): 896; The Right to Enjoin Strikes on the Ground of Interference with
Interstate Commerce, Yale Law Journal 12 (May 1903): 448.
11 James Gray Pope, The Thirteenth Amendment Versus the Commerce Clause: Labor and the
Shaping of American Constitutional Law, 1921-1957, Columbia Law Review, 102 (January 2002): 1,
12-38; Archibald Cox, Strikes, Picketing and the Constitution, Vanderbilt Law Review, 4 (1950-1951);
574, 575-579.
12 Felix Frankfurter and Nathan Greene, The Labor Injunction (New York: McMillan, 1930.
13 Norris-LaGuardia Act, Public Law No. 72-65, 47 Stat. 70 (1932) (codified as amended at 29 U.S.C.
§101 (2006); Clayton Antitrust Act, Public Law No. 63–212, 38 Stat. 730 (1914) ( codified at 15 U.S.C.
§§ 12–27, 29 U.S.C. §§ 52–53). See also U.S. Senate, Hearings before a Subcommittee of the
Committee on the Judiciary: Limiting Scope of Injunctions in Labor Disputes, 70 th Cong., 1st Sess.
(Washington, DC: GPO, 1928); U.S. Senate, Hearings before Subcommittees of the Committee on
the Judiciary: Amendments to Sherman Antitrust Act and Other Matters, 10 th to 62nd Congs.,
(Washington, DC: GOP, 1914).
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organization and collective bargaining.14 Never really effective anyway, §7(a) was
declared unconstitutional in 1935; and the Wagner Act was ineffective until 1937.
Nevertheless, these statutes were immediately important. Not only did they reflect
by far the most important attempt to establish a legally enforceable right to strike in
America. They also prioritized the right to strike, situating it at the center of the
entire system of labor rights and making the realization of these rights dependent on
the ability of workers to strike.15 And they did this a context where, for the first
time, government at all levels (by 1937, at least) possessed the authority to legislate
these rights in a positive way without offending the U.S. Constitution.
In this fashion, both statutes underlay a broader change in labor politics, at the base
of which was a shift in the federal government’s relationship with organized labor.
For the idea that labor rights were not only legitimate but government-sponsored
was central to the attempt by ambitious labor leaders to lay hold of the massive
upsurge in rank-and-file activism of the mid-1930s. The most important
manifestation of this was the emergence in 1935 of the Committee for Industrial
Organization, the CIO. One of the great social movements in America history, the
new labor federation built its campaign to organize the industrial workforce in large
part on a mutual embrace of the New Deal state and its legal system. Threatened for
a time with losing its position of dominance of the labor movement to the upstart
federation, the AFL shed some of its voluntarism and tentatively followed suit.
In this context, labor leaders and organizers presented the right to strike in novel
terms, as a prerogative definitely endorsed by the state, and which the state was
bound to defend against impositions by employers. Unsurprisingly, the concept was
transformed for scholars and commentators, too, becoming for them a perquisite
defined by and protected through the offices of the state. Even though both §7(a)
and the relevant provisions of the Wagner Act (§§ 7 and 13) defined the right to
strike in terms that were not only ambiguous but surprisingly negative in its own
right, they did lay out a right to strike.16 And so the right to strike became a right to
be defended by defending the power of the state to regulate labor relations, the
National Industrial Recovery Act, Public Law No. 73-67, 48 Stat. 195 (1933); National Labor
Relations Act, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§151-169). A year after enacting
the Wagner Act, Congress also enacted the Strikebreaker Act, or Byrnes Act, which criminalized the
transportation in interstate commerce of “any person” employed for the purpose of using threats or
force to interfering with the rights of workers to picket, or engage in collective bargaining or selforganization. Industrial Strikebreaking: The Byrnes Act, University of Chicago Law Review, 4 (June
1937): 657-666.
15 Inherent in the structure of the Wagner Act, which eschews any notion of government intrusion in
the substance of collective bargaining and defers to the “economic weapons” of the parties to decide
this and (to some extent) the question of union representation, the notion that the right to strike is
fundamental to the functionality of the statute’s entire scheme, was endorsed by none other than
Senator Robert Taft himself, in the debates on the law that bears his name. 93 Congressional Record
3835-3836 (1947). See also NLRB v. Insurance Agents, 361 U.S. 477, 489-95 (1960); NLRB v. Lion
Oil Company, 352 U.S. 282, 291 (1957).
16 Another provision of the Wagner Act relevant to the right to strike is §2(3), which included in its
definition of “employees” entitled to the protections of the Act workers who were out on strike.
14
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legitimacy of the Wagner Act, and the National Labor Relations Board (NLRB) to
administer the Act.17 It thus took on its contemporary meaning.
These profound changes in the legal, political, and scholarly conceptions of the right
to strike occurred alongside a dramatic increase in the incidence of strikes beginning
in the mid-1930s. There were relatively few strikes in the first three years of the
Depression—fewer than 900 a year from 1930 through 1932; and the great majority
of these were in protest of wage cuts. But things changed quickly. In 1933, there
were 1,700, and then an average of about 3,000 a year over the following ten years—
notwithstanding the wartime non-strike pledge subscribed by most unions. And a
large number (in some years a majority) were organizing strikes. In the course of
1937, which is probably the single most critical year in American labor history, the
government counted 4,740 strikes involving over 7 percent of the working
population. 18 Among the strikes that year were a number of large and violent
conflicts—heroic, even. Led mostly by CIO unions, these strikes resulted in the
establishment of effective unionism in key antiunion, “open shop” industries like
steel and automobiles. The established the foundations of the modern labor
movement.
In the manner of perhaps most legal and political initiatives, §7(a) and the Wagner
Act were shaped by this increase in labor activism even as they influenced and
inspired such activism. As Staughton Lynd has noted, the impetus to enact the
Wagner Act in particular “waxed and waned in direct correlation with the waxing and
waning of the strike wave of 1934-35.”19 In this light, it is notable that both
provisions were explicitly aimed at taming such conflict. This agenda, which is most
clearly reflected in the first section of the Wagner Act, would end up being asserted
as a limit on the right to strike. Not by coincidence, the massive surge in labor
activism and protest also influenced the U.S. Supreme Court’s unexpected validation
of the Wagner Act (and, with it, the entire New Deal), in its landmark decision,
NLRB v. Jones & Laughlin Steel, decided in April 1937—and, as Jim Pope makes clear,
the justices’ conspicuous valorization of labor peace in that decision.20
It is not difficult to comprehend the mechanisms behind these developments. These
strikes were the lifeblood of a labor movement that was not only reborn but was
In this way, the defense of the right to strike also entailed a defense of the Wagner Act against
increasingly active attempts to repeal or amend it. See for example Lee Pressman, The Right to Strike
and Compulsory Arbitration, Lawyers Guild Review 1 (June 1941): 40-45.
18 Historical Statistics of the United States, Colonial Times to 1957 (Washington, DC: U.S. Bureau of
the Census, 1960), series D-970-985; Florence Peterson, Strikes in the United States, 1880-1936:
Department of Labor, Bulletin No. 651 (Washington, DC: GOP, 1938), p.61, Table 28.
19 Staughton Lynd, Government Without Rights: The Law Law Vision of Archibald Cox, Industrial
Relations Law Journal, 4 (1980-1981): 483, 484 n.10. On this point, see also Irving Bernstein, The
New Deal Collective Bargaining Policy (Berkeley, CA: University of California Press, 1950), pp. 71-77.
20 NLRB v. Jones & Laughlin Steel, 301 U.S. 1 (1937); James Gray Pope, Worker Lawmaking, SitDown Strikes, and the Shaping of American Industrial Relations, 1935-1958, Law and History
Review, 45 (Spring 2006): 45, 98-107. On the role of labor activism in shaping the Court’s ruling, see
also Frances Fox Piven and Richard A. Cloward, Poor People’s Movements (New York: Random
House, 1988), pp. 96-175.
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rapidly surging to unprecedented strength. The strikes made organized labor a
political force to be reckoned with while demonstrating to the courts and other
reactionary elements of the state the considerable risks of continued opposition to
labor reform. In this light it seems certain that the militancy of this era was as
important to the survival of the New Deal as was the New Deal important to the rise
of the modern labor movement. And yet even then militancy was understood as a
threat best muted by the validation of a functional system of labor law.
This surge in labor conflict did not end with the Jones & Laughlin decision, or even
the war. After falling off somewhat during and just after the devastating “Roosevelt
Recession” it continued well into the 1940s, during which time strikes continued to
play a key role in consolidating the strength of the labor movement. Ironically, in
the course of this process basic labor rights expressed in the Wagner Act became
increasingly secure, even as the right to strike was increasingly circumscribed by
statute and judicial and administrative rulings. Strikes remained surprisingly frequent
through the 1950s and 1960s as well, although they diminished dramatically in
militancy and resulted in no great clashes on par with those of the New Deal
period.21
A good example of how things had changed can be found again in the steel industry,
where a history of bitter conflict, book-ended by the infamous Homestead dispute in
1882 and the tragic “Little Steel” Strike in the 1937, had claimed scores of lives and
resulted in countless injuries and thousands of arrests. Largely unionized by the CIO
in the late 1930s and early 1940s, the industry continued in the postwar period to
feature some of the biggest strikes in American history. But by then the industry’s
strikes had become, by contrast at least, almost ritualistic affairs. During the
industry-wide 1949 walkout, a somewhat incredulous Mary Heaton Vorse, a leftist
labor journalist who had witnessed the carnage of earlier strikes first-hand, now
found picket stations constructed from lumber donated by management, appointed
with radios and heaters provided by the companies, and provisioned at company
expense with doughnuts and coffee.22
During this new era, which ran roughly from 1950 to the early 1970s, working
conditions also improved substantially; and union membership, which increased
quickly in the late 1930s and 1940s, remained unprecedentedly high. As Nelson
Lichtenstein has recently reminded readers, it is important not to mistake the relative
stability and quiet of this period for a suspension of class conflict, which still
expressed itself in considerable, low-level conflict.23 Nevertheless, things had
changed and a period of relative détente was in the offing. Not surprisingly, under
these conditions concerns about the integrity of the right to strike receded.
Embracing a newly dominant ideology steeped in visions of “industrial pluralism”
Historical Statistics of the United States, Colonial Times to 1957 (Washington, DC: U.S. Bureau of
the Census, 1960), series D-970-985.
22 Mary Heaton Vorse, An Altogether Different Strike, Harper’s Magazine, Feb. 1950, p. 50, 52.
23 Nelson Lichtenstein, State of the Union: A Century of American Labor (Princeton, NJ: Princeton
University Press), pp. 98-140.
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and the permanent management of labor discord, most labor scholars did not bother
with the subject at all, except in a rather technical way that decoupled the right to
strike from existential concerns about the fate of the labor movement, let alone, in
the fashion of Steinbeck, the human condition.24
From this vantage, the right to strike was, in the suitably dry language of one of the
apostles of this new perspective, Archibald Cox, nothing more than “the concerted
cessation of work by agreement among employees for the purpose of inflicting upon
their employer losses sufficient to induce him [sic] to grant the terms that they
demand.” In Cox’s view, there had been a perhaps unwarranted shift in the 1940s to
the view that “the law has a useful role to play in the conflicts of interest between
employers and employees,” but this reflected in part “the conviction that unions
sometimes pursued objectives quite inconsistent with accepted notions of fairness
and sound policy, and sometimes used weapons that out to be banned.” Among
these offensive weapons: “mass picketing and extreme forms of secondary boycott.”
25
Cox’s article from which the preceding quotations are taken, delves into the
constitutional status of the right to strike and picket; and it cites with evident
approval Justice Louis Brandeis’s dictum from the 1926 case Dorchy v. Kansas that
there is no absolute right to strike. The full quotation of Brandeis—“Neither the
common law, nor the Fourteenth Amendment, confers the absolute right to strike,”
he wrote—appears in dozens of articles and commentaries on the right to strike
from the 1950s and 1960s.26 And not because it is a catchy phrase, but because it
represents an intonation about the right to strike that predominated in this period.
In other words, the discussion shifted from whether there should be a right to strike,
to that of how to properly manage the right to strike—albeit with a continued
consensus that the state enjoyed a proper rule in sponsoring such right. Cox himself,
along with economist and fellow Harvard professor John Dunlop, were famously
antipathetic to the right to strike, which they argued was legitimately qualified by law
in various ways and could be freely waived by unions in collective bargaining.27
A less conspicuous but equally revealing example of this standpoint can be found in
a 1950 article in the American Bar Association Journal by former NLRB lawyer George
Rose, who inveighed while the right to strike might be the “prerogative of all free
men,” the right was not absolute. Rather, taking unions and employers to be roughly
on par in economic power, Rose claimed that the right to strike was burdened with
This approach is strongly associated with Daniel Bell, Archibald Cox, and John Dunlop, among
others. For a description of its man features, see for example Lynd, Government Without Rights,
487-88; George Feller, A General Theory of the Collective Bargaining Agreement, California Law
Review, 61 (1973): 663, 720-24.
25 Cox, Strikes, Picketing and the Constitution, 575.
26 Dorchy v. Kansas, 272 U.S. 306, 311 (1926).
27 See for example Archibald Cox and John Dunlop, Regulation of Collective Bargaining by the
National Labor Relations Board, Harvard Law Review, 63 (1950): 389. For a critical review of Cox
and Dunlop on this score, see Lynd, Government Without Rights.
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layers of responsibility to the public—it was a prerogative that put unions and
employers “on trial to demonstrate and confess the sincerity of their belief in the
democratic process.”28 A few years later in the same journal, Rose attacked the
“myth” that the notorious Taft-Hartley Act (Labor Management Relations Act of
1947), which had racially amended the Wagner Act, was a “union busting” statute in
part by insisting that under its terms the right to strike remained available to lawabiding unions.29
Other scholars and commentators joined Cox, Dunlop, and Rose in suggesting that
while the right to strike was legitimate, it was subject to a number of equally
legitimate constraints which, in pursuit of a functional system of labor rights, the
courts, the Board, and the public should all take seriously.30 In so doing, they
followed the courts and the Board, whose rulings hewed to a similar approach which
confirmed the right to strike but, as we shall see more of shortly, qualified it by a
slew of mandates to ensure that was exercised responsibly.
There were some expressions of concern about the right to strike, albeit enclosed
less in worries about the ultimate fate of workers’ interests and more in concerns
about how those interests were being advanced. George Rose’s rather casual
dismissal of Taft-Hartley’s effects on labor rights was refuted a year later by the
prescient anticipations of a labor lawyer named Robert Gilbert, who predicted that
the aggressive use of the statute’s provisions could be used to decimate union
membership.31 In a 1960 speech at Yale Law School, New York labor lawyer Henry
Mayer warned that the right to strike was being simultaneously “diluted” and
threatened with replacement by a semi-corporatist system of government-managed
labor disputes inconsistent with “democracy” and a “free society.” In fact, Mayer
was one of a number of commentators who worried that the right to strike, and the
independence of the labor movement, were being consumed by the era’s turn to
what others have called “soft corporatism” in the management of labor conflict.32
Come the mid-1970s, though, there would little further talk of dangers of
corporatism or industrial pluralism. For by then, the labor movement found itself
again locked in bitter conflicts not only over the terms of exploitation—wages and
George Rose, The Right to Strike: Is it an Inalienable Right of Free Men?, American Bar
Association Journal, 36 (June 1950): 439, 521.
29 George Rose, The Taft-Hartley Act: The Myth of the “Union-Busting,” American Bar Association
Journal, 40 (May 1954): 398, 399.
30 See for example, Frank H. Stewart and Robert J. Townsend, Strike Violence: The Need for Federal
Injunctions, University of Pennsylvania Law Review, 114 (February 1966): 459; William E. Pate, The
Effect of Strike Misconduct on Reinstatement Rights of Employees, Journal of Public Law, 15 (1960):
150-180; Strike Misconduct: An Illusory Bar to Reinstatement, Yale Law Journal, 72 (November
1962): 182.
31 Robert W. Gilbert, Taft-Hartley: A Method for “Union Busting,” American Bar Association
Journal, 41 (January 1955): 25.
32 Henry Mayer, Strategy of the Strike, Labor Law Journal, 11 (1960): 753, 754. On the concept of
soft corporatism, see Davis Stebenne, Arthur Goldberg, New Deal Liberal (New York: Oxford
University Press, 1996), 186. On concerns about this shift, see also William S. Hopkins, Labor
Relations Trends, Labor Law Journal, 4 (1953): 196.
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hours and the like—but increasingly over more fundamental issues, including the
movement’s very right to exist. In defiance of the old détente, employers resumed
aggressively contesting union representation, including by an array of unlawful
means, like firings of organizers and the willful refusal to bargain in good faith.
When the companies did adhere to their legal duty to bargain, they often demanded
significant concessions from workers how had become used to making real gains in
bargaining.33
Workers responded to this new order with a wave of strikes which almost rivaled in
numbers the big strike waves of the 1930s and 1940s. But employers had a response,
too. Invoking a prerogative that the Supreme Court (and the NLRB) had endorsed
back in 1938—but which few employers had used in the interim—they resorted with
increasing frequency to the use of replacement workers. They also aggressively
accused strikers of misconduct, filing unfair labor practice charges against them with
the NLRB, and enjoining them with court orders.
This change in tactics set up a one-sided contest in which strikes were defeated with
such regularity that many employers began to provoke strikes (or resort to lockouts)
as a method for destroying union representation. As this struggle extended into the
1980s and 1990s, union membership plummeted, along with the influence of
individual unions and the overall strength of the labor movement. So did the
number of strikes, which receded to levels which have not been seen since the birth
of modern labor relations in post-bellum Industrial America. Not coincidentally, the
political and economic conditions of the working class, which had improved steadily
in the postwar period, began to deteriorate—for some workers, very drastically.34
As these developments unfolded, labor scholars began to concern themselves in a
different way with the right to strike. Viewing it as a major factor in the decline of
the working class and the weakening of the labor movement, they bewailed the
decline in strikes; and they attributed this development it to a host of legal changes
that seemed to have narrowed the circumstances under which workers could strike,
of which there many ready examples. There was, for instance, the doctrine which
evolved out of a trilogy of 1960 Supreme Court decisions involving the United
Steelworkers of America and reached its apogee with a 1970 case, Boys Market, Inc. v.
Retail Clerks Union, Local 770, which made it unlawful for workers to strike over any
issue covered by an arbitration clause in a collective bargaining agreement, even if
the contracts made no express waiver of this kind.35 There were, too, an
Lichtenstein, State of the Union, passim; Jefferson Cowie, Stayin’ Alive: The 1970s and the Last
Days of the Working Class (New York: New Press, 2012), passim.
34 There have been only about fifteen major “work stoppages”—strikes or lockouts involving more
than 1,000 workers—a year of the last ten years, compared to almost 290 a year in the 1970s, and over
280 a year in the 1960s. Bureau of Labor Statistics, Work Stoppages Involving 1,000 or More
Workers, 1947-2015.
35 Boys Market Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235 (1970). For a critical reflection on
the case and doctrine surrounding it, see James B. Atleson, The Circle of Boys Market, Berkeley
Journal of Labor and Employment Law, 7 (January 1985): 88.
33
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accumulation of doctrines which expanded the prerogatives of employers to punish
strikers for supposed misconduct on the picket lines, or for otherwise striking in the
wrong fashion. And there was also the replacement worker doctrine, the so-called
MacKay Radio rule which allowed employers to permanently replace economic
strikers.36
Notably, in this way these scholars construed the decline in strikes in fundamentally
liberal terms. By presenting the problem as a function of a decline in the right to
strike, they eschew an indictment of liberalism’s reign over labor relations (although,
ironically, this critique is implicit in all the most important representatives of this
work), for an appeal to liberalism itself to somehow renounce its own fundamental
values in this realm. The state in this sense could readily be both an enemy and a
friend of labor. To be sure, this position is by no means a speculative one. Instead,
it rests on the view that there had once been an effective right to strike. But as it
turns out, this supposition is highly problematic. For, as a closer look at the role of
strikes in the evolution of modern labor relations makes clear, the kinds of strikes
that built the labor movement in the 1930s and 1940s, and that these critics (for the
most part) rightly anticipate would be necessary to save the movement today, were
never really construable as rights anyway. At least not in any practical, enduring way.
The Right to Strike and the Evolution of Labor Relations in Modern America—Reconsidered
The period from the mid-1930s until the enactment of the Taft-Hartley Act in 1947
represented the first time that American workers were able to strike effectively—to
use strikes to bring about substantial changes not only regarding the vitality of basic
labor rights and the terms of exploitation, but also to a considerable extent regarding
the overall disposition of the legal system and the structure of labor relations. After
all, it was because of effective strikes that the Wagner Act and the New Deal were
validated. However, this remarkable change in law and policy was not complete.
The concept of an effective strike did not validate itself in law, not least because at
the center of this effort were strikes that could not be validated: sit-down strikes and
strikes featuring mass picketing.
The sit-down strikes played a vital role in overcoming the open shop in a host of
industries in the late 1930s. Although there had been sit-down strikes earlier in the
century and a few earlier in the Depression Era (including a prominent one in
Austin, Minnesota in 1933 and a number of brief, “quickie” sit-downs in Cleveland
and Toledo in 1934), the practice began to come into its own in 1936, when there
were significant sit-downs in rubber factories and automobile parts and assembly
plants in Ohio and Indiana.37 The signature event was the great General Motors sitdown strike, which began on the last day of the year, 1936, in Flint, Michigan, and
which forced that company—a leader in labor repression, an anchor of the open
36
37
NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).
Louis Ademic, Sit-Down, The Nation, Dec. 12, 1936, pp. 702-04.
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shop, and the largest corporation in the world—to recognize the United Automobile
Workers Union. An electrifying event that ranks among the most important
episodes in American history, the strike also played the key role in influencing the
Supreme Court to uphold the constitutionality of Wagner Act (and thus the entire
New Deal) later that spring, in the landmark Jones & Laughlin Steel decision.
There were hundreds of sit-down strikes in the Second New Deal period,
concentrated in the first half of 1937, with many of them clearly inspired by the
sensation and success of the Flint strike. According to the U.S. Labor department,
one in ten strikes—477 out of 4,740—that year were sit-down strikes; in March
alone there were 170.38 And they played a decisive role in defeating the open shop
across a vast range of industries, including the manufacture of farm equipment, steel,
and rubber; lumber and mining; ocean shipping; as well as host of service
industries.39 Indeed, over 80 percent were at least partially successful, despite their
concentration at firms that vigorously resisted labor rights.40 This reflected the
particular tactical advantages that these strikes conveyed: they preempted the
running of struck businesses; at a time when picketers were often overwhelmed with
armed force, they placed the strikers in defensible positions; the made hostage the
building and equipment of the struck business; and in a context where many workers
were afraid to support unionism even if they agreed with it, the strikes could be
executed by relatively small numbers of union stalwarts.41
In addition to forcing individual employers to retreat from the open shop, the strikes
served up to the capitalist class and their allies in government a salient message about
the costs of continuing to resist workers’ demands. These were the strikes that
moved the court in the Jones & Laughlin case. The strikes were never accepted as
legitimate though, despite attempts by some unionists and their champions to justify
them.42 Rather, from the outset these strikes were condemned by politicians and
elites of every stripe. They were also suppressed by local and state police, who were
often armed with judicial injunctions as well as truncheons and gas. Such repression
became more frequent and aggressive after the Jones & Laughlin decision positioned
the NLRB as a proper venue for resolving labor conflicts. Significantly, though,
authorities did not usually condemn or quash these strikes in the name of capitalist
hegemony, let alone in the guise of suppressing the interests of “legitimate” unions,
even if this is what they intended. The strikes had to be suppressed, they said,
because they were unlawful violations of public order and the rights of property, and
they transgressed of the limits of legitimate labor rights.
U.S. Department of Labor: Handbook of Labor Statistics, 1941 Edition, Bulletin No. 694
(Washington, DC: GPO, 1942), p.338.
39 Sidney Fine, The General Motors Strike of 1936-1937 (Ann Arbor, MI: University of Michigan), pp.
186-89.
40 Fine, The General Motors Strike, 332.
41 Fine, The General Motors Strike, 121-22.
42 Pope, Worker Lawmaking, 62-82.
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Neither the text of the Wagner Act nor its legislative history addressed the question
of sit-down strikes, or even the broader issue of the limits of strike militancy.
Instead, there are a couple of relevant passages dealing with the question of coercion
and criminality in general. The bill’s sponsors insisted that the statute could not
function as a police court. In the words of Senator Wagner himself “To saddle upon
the National Labor Relations Board the duty to prevent ‘coercion’ by labor unions or
employees would create a superfluous remedy for wrongs simply dealt with today by
police courts and by injunctive relief in Federal and State courts.” Such a move
would not only threaten to overwhelm the NLRB give “new congressional sanction
to those many old decisions which have banned peaceful picketing, the mere threat
to strike, and even the circularization of banners, on the ground that they were
‘coercive.’” It would force the worker back into the “bondage that existed before
that humane piece of legislation was enacted.”43 But by the same token, the
sponsors also insisted that the Act would do nothing to displace the authority of
police and courts to deal with violence and unrest. Both House and Senate reports
subscribed to the view that “the remedies against such acts in the State and Federal
courts and by the invocation of local police authorities are now adequate, as arrests
and labor injunctions in industrial disputes throughout the country will attest.”44
In this light, it is not surprising that the NLRB prevaricated on the question of
whether the strikes were consistent with the Wagner Act and particularly on whether
workers who participated in such strikes retained their rights under the statute. In
most cases it the Board never became involved. When it did, it sometimes found the
strikes unprotected, rendering the strikers liable to discipline and discharge by their
employers; but in several important cases it also attempted to establish the strikes as
justified responses to employers’ violations of the labor law, so that the workers
might be ordered reinstated. With a few notable exceptions, the courts took a
different view; they rejected the NLRB’s more equivocal stance in favor of a
categorical condemnation of the practice. The Supreme Court soon affirmed this
position in two cases, NLRB v. Fansteeel (1939) and Southern Steamship v. NLRB
(1942), in which it explicitly declared such strikes unlawful under the Wagner Act.45
It is important to note that even before Fansteel and Southern Steamship, the courts
never seriously entertained the possibility that the sit-down strikes were lawful under
local and state law and exempt from suppression by injunctions or police action—
U.S. Senate, Congressmen on S. 1958, in Legislative History of the National Labor Relations Act,
Volume II (Washington, DC: GPO, 1949), p. 3234. See also U.S. Senate, Debate on Senate Joint
Resolution 143, in Legislative History of the National Labor Relations Act, Volume I (Washington,
DC: GPO, 1949), p. 1191; U.S. Senate, Debate on S. 1958, in Legislative History of the National
Labor Relations Act, Volume II (Washington, DC: GPO, 1949), p.2396.
44 U.S. House of Representatives, Report on 969 on H.R. 7879, in Legislative History of the National
Labor Relations Act, Volume II (Washington, DC: GPO, 1949), p. 2924. See also U.S. House of
Representatives, Agreement to House Resolution 263, in Legislative History of the National Labor
Relations Act, Volume II (Washington, DC: GOP, 1949), p. 3112.
45 NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939); Southern Steamship Co. v. NLRB 309
U.S. 206 (1942).
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whatever might be their status under the labor law. In fact, the NLRB itself
presumed as much in the course of arguing that it not be required by the courts to
withhold the protections of the labor law from sit-down strikers. The agency was
not a police institution, it said; and it was not for the agency to stop the police or
courts from punishing the strikers. Indeed, the fact that the strikes could be
punished in such fashion justified the NLRB in not believing that it was bound to
interpret the labor law in punitive terms—at least not without balancing the
equities.46
In his dissent in Fansteel, Justice Stanley Reed essentially took this view as well. For
Reed, the issue was not whether the strikers had acted legally, for they had not, but
rather whether the Court should second-guess the NLRB’s authority to sort out the
equities in cases, like this one, where both parties had “erred grievously.”47 Although
the question of whether interventions in strikes by local authorities were somehow
preempted by the federal labor was also not quite settled in these early years, there
was no question on this score either regarding the prerogative of state and local
authorities to suppress the sit-down strikes. By the 1950s, it would be completely
clear that states faced no impediments in this regard—not when dealing with threats
to property and order.48
Besides establishing the illegality and unprotected character of sit-down strikes,
Fansteel also made clear that strikes in violation of state law, particularly state criminal
laws, were illegitimate and that those who participated in them where at least
presumptively unprotected from discharge. Beyond extending the ruling in Fansteel
to seamen, the Southern Steamship decision three years later had the broader effect of
establishing that strikes in violation of federal laws or “policies”—in this instance,
mutiny law, imposed in the case of a peaceful, dockside strike—were likewise illegal
and unprotected.49 Together, Fansteel and Southern Steamship stand for the even
broader principle that militant strike activity is beyond the ken of the labor law.50
Though rather less dramatic, mass picketing was also an integral, though often
overlooked, reason behind the remarkable expansion of labor rights and union
representation in the Depression Era and in the years that followed it. The practice
was also far more common and persisted for much longer than the sit-down strikes.
On countless occasions in the 1930s and 1940s, strikers gathered in large numbers,
sometimes even in the hundreds or thousands, at struck businesses. By their
teeming and often threatening presence, picketers were consistently able to deter the
use of scabs and shutter struck businesses, thereby impressing fence-sitting workers
with the strength of their movement and forcing employers to respect their rights
Fansteel Metallurgical Corp., 5 NLRB 930, 949 (1938).
NLRB v. Fansteel, 306 U.S. at 267.
48 Ahmed A. White, Workers Disarmed: The Campaign Against Mass Picketing and the Dilemma of
Liberal Labor Rights, Harvard Civil Rights-Civil Liberties Law Review, 49 (Winter 2014): 60, 107-108.
49 White, Mutiny, Shipboard Strikes.
50 Ahmed A. White, The Depression Era Sit-Down Strikes and the Limits of Liberal Labor Law,
Seton Hall Law Review, 40 (2010): 1, 61-77.
46
47
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under the labor law and meet their terms in collective bargaining. Like sitting down
on the job, mass picketing was a strike-winning tactic.
No better example can be found than in the conflict that followed at Jones &
Laughlin Steel Company itself, after the Supreme Court rejected its challenge to the
constitutionality of the Wagner Act. The Court’s decision, handed down April 12,
1937, came in the middle of a drive by CIO unionists to organize the company’s two
big steel plants in Pennsylvania. Marked by relentless, sometimes violent resistance
on the part of the company, this push for unionization was hardly settled by that
decision, the main import of which was that the Wagner Act was constitutional.
Instead, in keeping with the logic of the Wagner Act, it left the matter to be decided
by the relative economic strength of the parties. And so it was, as the conflict
devolved into a massive strike focused at the company’s plant in Aliquippa and
occurring about a month after the Court’s decision. Thousands of unionists turned
out, many armed with clubs and sticks, blocking all entrances and forcing the
massive complex to close down. Unable to break the siege despite the formidable
means of labor repression at their disposal, and fearful the company would be driven
out of business if they did not end the strike, company leaders capitulated. They
agreed to sign a favorable collective bargaining agreement pending the outcome of
an NLRB-sponsored election, held several weeks later, which the union won
decisively.51
Mass picketing on a comparable scale was used to press big industrial employers in
other cases in the late 1930s and early 1940s. A strike at General Motors in
Cleveland in the summer of 1938, saw 8,000 picketers turn out; and a series of
walkouts at Bethlehem Steel in Lackawanna, New York, and Bethlehem,
Pennsylvania, in early 1941, involved several thousand workers who cordoned those
plants and battled police and employees loyal to the company. It was in the spring of
1941, too, that UAW organizers succeeded in cordoning Ford Motor’s massive River
Rouge plant in Dearborn, Michigan with several thousand strikers, and forcing that
company, which had stubbornly and violently adhered to the open shop for several
years longer than most other big mass production employers, to finally agree to
union representation. 52
Alongside these really big episodes of mass picketing were hundreds, probably
thousands, of smaller episodes of mass picketing. Indeed, mass picketing was a
hallmark of Depression-Era labor conflict, when the practice extended throughout
the country and stretched across a broad range of industries, from oil refining and
ship-building, to retail and newspapers, to industrialized agriculture, to government
services. And unlike the sit-down strikes, which became far less frequent after the
Fansteel decision, mass picketing remained common in the 1940s, when it played a
Irving Bernstein, The Turbulent Years: A History of the American Worker, 1933-1941 (Chicago:
Haymarket Books, 2010), p.478; Ken Casebeer, Aliquippa: The Company Town and Contested Power
in the Construction of Law, Buffalo Law Review 43 (1995): 617, 672-75.
52 White, Workers Disarmed, 80-82.
51
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key role in the massive upsurge in strikes that attended the end of the Second World
War. During this period there were notable episodes in electrical equipment
manufacturing, motion pictures production, aircraft and farm equipment
manufacturing, public transit, and retail. In fact, every industry that featured a
significant degree of labor conflict in the late 1930s and early 1940s—and most
did—was the scene of considerable mass picketing.53 One would be hard pressed to
find any important strikes in the 1930s and 1940s, besides some of the sit-down
strikes, in which it did not feature prominently.
As with the sit-down strikes, mass picketing was also reviled by elites and regularly
interdicted by local and state authorities, who repeatedly used injunctions and arrests
to break up the protests. In some instances, picketers were read the riot act before
being routed by police. Serious violence was relatively uncommon, particularly come
the 1940s. But it was not unheard of. One of the deadliest events in American labor
history, the 1937 “Memorial Day Massacre,” which occurred in the first days of the
Little Steel Strike, resulted from an attempt by the Chicago police to enforce their
ban on mass picketing at one of the struck steel plants. Ten unionist were killed and
about 100 injured when, without any real provocation, the police opened fire on a
crowd of strikes and sympathizers. There would be no mass picketing at that plant.
Moreover, the strike itself, which extended across seven states and involved over
70,000 workers was defeated in large part because authorities eventually proscribed
mass picketing everywhere. Although they had some initial success, the strikers were
ultimately unable to use the tactics to close the companies’ plants. And so the lost.
The result was a crucial turning point in labor history, as it marked the last time that
the labor movement relied on a militant, industry-wide strike as an organizing tool.54
On the question of the legality of mass picketing, the NLRB prevaricated. Its
punitive and injunctive authority limited at the time to sanctioning employers and
not unions or their agents, the Board did occasionally decline to protect mass
picketers from reprisals by employers, although usually because they not only
picketed in large numbers but engaged in overt violence. In a few notable cases,
including one deriving from the Little Steel Strike, it rejected the view that merely
having participated in mass picketing or other unruly protests necessarily disqualified
workers from the benefits of the labor law.55
For the most part, though, the agency abstained from dealing with these cases,
leaving the matter to police and courts—whose authority to do so the agency
conceded. This did not satisfy the Congress, which in the decade after enacting the
Wagner Act had considered scores of bills intended to limit labor rights, including
aspects of the right to strike. The central theme in these efforts was the supposed
need to restrict labor militancy, particularly sit-down strikes and mass picketing. The
White, Workers Disarmed, 82-86.
Ahmed White, The Last Great Strike: Little Steel, the CIO, and the Struggle for Labor Rights in
New Deal America (Oakland, CA: University of California Press, 2016).
55 Republic Steel, 9 NLRB 219 (1938); Republic Steel v. NLRB, 311 U.S. 7 (1940).
53
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hearings concerning these efforts featured lurid testimony about these tactics and
their violence and their impositions on property rights.56 None of these bills was
enacted; but the legislation and the hearings established a record on which further
efforts could be based while also subjecting the NLRB to effective pressure to limit
its tolerance of union militancy. 57
Finally in the summer of 1947 Congress made prohibiting mass picketing a key
function of Taft-Hartley Act. Among sections of the “Slave Labor Act,” as unionists
called it, were several that restricted mass picketing. Section 8(b)(1)(A), one of host
of provisions establishing unfair labor practices that could be charged against a union
or its agents, made mass picketing subject to injunction. It was also enacted with the
understanding that it be construed to establish the outer boundaries of “protected”
conduct on the part of strikers, regardless of whether their conduct could be or was
prosecuted as an unfair labor practice. These provisions were enacted with specific
reference to cases like those arising from the Little Steel Strike (as well as, by analogy,
the sit-down strikes) in which the agency had not, in the Congress’ view, been
sufficiently protective of public order and private property.58
Nor did Taft-Hartley stop there in its effort to rein in modes of militancy that
proliferated over the previous decade or so. The prohibition of mass picketing was
embedded in a broader condemnation of “misconduct” which encompassed strike
violence and coercion of all kinds. The changes in the law directed at mass picketing
prohibit any kind of conduct in the course of picketing or striking that is
substantially coercive. No overt violence or threat of violence is necessary. The
anticipation or apprehension of such is more than enough.59
This change in the law works in hand with another. Taft-Hartley also amended §7 of
the Act, its normative center, qualifying the basic labor rights that the Wagner Act
had accorded workers (the right to form unions, to provoke collective bargaining,
and to protest as by striking) to include a right of workers to refrain from such
activities and dissent from their fellow workers’ expressions of solidarity. It is this
right that the prohibition of strike-related protects.
The statute also confronted the practice of secondary boycotts, a tactic that, despite
not being inherently violent in any way, nor dependent on any express intrusion on
White, Workers Disarmed, 88-90. See also U.S. Senate, Hearings before a Subcommittee of the
Committee on Education and Labor: Labor Disputes Act of 1946, 79 th Cong., 2nd Sess. (Washington,
DC: GPO, 1946); U.S. House of Representatives, Intermediate Report of Special Committee to
Investigate the National Labor Relations Board, 76th Cong., 1st Sess. (Washington, DC: GPO, 1940),
pp. 59-60; U.S. House of Representatives, Hearings before the Committee on Labor: Proposed
Amendments to the National Labor Relations Act, 76th Cong., 3rd Sess. (Washington, DC: GPO,
1940), passim; U.S. Senate, Hearings before the Committee on Education and Labor: National Labor
Relations Act and Proposed Amendments, 76th Cong., 1st Sess. (Washington, DC: GPO, 1939),
passim.
57 The one exception to this was the enactment of the War Labor Disputes (Smith-Connally) Act in
1943, which banned wartime strikes. 57 Stat. 163.
58 White, Workers Disarmed, 88-102.
59 White, Workers Disarmed, 111-15.
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property rights, had long been condemned for violating both. Section 8(b)(4) of the
Taft-Hartley Act banned secondary boycotts, thus effectively prohibiting sympathy
strikes and general strikes. Nor did Taft-Hartley’s assault on the right to strike stop
there. Section 303 made unions subject to civil liability for secondary boycotts.
Section 8(d) limited the circumstances under which strikes could be launched during
the term of a collective bargaining agreement. And §§ 206-210 established
procedures by which a strike affecting national security could be suspended and
subjected to compulsory investigation, mediation, and settlement.
This program was dramatic and its inroads on the right to strike stark. But it was not
entirely novel, either. As Chris Tomlins has pointed out, and as Harry Millis and
Emily Clark Brown did before him, Taft-Hartley in many way codified and
federalized limitations on labor rights that had been set in place over the decade
preceding its enactment.60 As witnesses against the Act emphasize, not only was mass
picketing being reined in by police enforcing state and local laws of general
application, but also the states had gone a long way toward directly barring the
practice with provisions of their own collective bargaining laws—“Baby Wagner
Acts”—; with laws that specifically criminalized mass picketing; and with state court
injunctions.61
In this vein, too, Taft-Hartley augmented a number of rulings by the courts and the
NLRB over the previous decade that had further narrowed the right to strike.
Already by 1939, for example, the Supreme Court had ruled that employers could
fire workers who struck in violation of the terms of their collective bargaining
agreement.62 In the 1940s, the NLRB expanded on the principle that illegal strikes
motivated by an unlawful objective, like that of challenging the agency’s authority to
“certify” another union, were also unprotected.63
Taft-Hartley did not represent the end of this era’s move against the right to strike,
either. In the 1950 case, Elk Lumber, the Board ruled, for instance, that an employer
could discharge strikers who engaged in a slowdown, even though such strikes were
not illegal under the Taft-Hartley Act.64 In other cases, the Board and the courts
determined that strikers who engaged in so-called hit-and-run tactics were also
unprotected, even if they had minimal knowledge of the nature of those tactics.65
Later that decade, the Taft-Hartley amendments were augmented up by several
provisions of the Labor-Management Reporting and Disclosure (Landrum-Griffin)
Christopher Tomlins, The State and the Unions: Labor Rights and the Origins of the Labor
Movement in America, 1880-1960 (New York: Cambridge University Press, 1985), pp. 197-243; Harry
A. Millis and Emily Clark Brown, From the Wagner Act to Taft-Hartley: A Study of National Labor
Policy and Labor Relations (Chicago: University of Chicago Press, 1950), pp. 316-362.
61 White, Workers Disarmed, 102-110.
62 NLRB v. Sands Manufacturing, 306 U.S. 332 (1939); American News Company, 55 NLRB 1302
(1944).
63 See for example, Columbia Pictures, 64 NLRB 490 (1945). See also Millis and Brown, From the
Wagner Act to Taft-Hartley, 316-332; White, Workers Disarmed, 102-104.
64 Elk Lumber Company, 91 NLRB 333 (1950).
65 See for example, NLRB v. Southern Silk Mills, 209 F. 2d 155 (6 th Cir. 1953).
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Act of 1959. In addition to toughening Taft-Hartley’s prohibition on secondary
boycotts, Landrum-Griffin added §8(b)(7), which barred most picketing for the
purpose of organizing or pressing an employer to recognize a union.
It was around the time of Landrum-Griffin that yet another important limitation on
the right to strike took shape—the doctrine centered on the Boys Market decision.
Premised on the pluralistic idea that labor union were essentially equal in bargaining
power to employers, that they could bargain away the §7 and §13 rights of their
members, and strikes were fundamentally undesirable alternatives to more peaceful
means of resolving labor conflict, the new doctrine established that strikes in
violation of either express provisions in collective bargaining agreements or those
implied by the existence of an arbitration clause covering the grievance that causes
the strike were unlawful. They could be enjoined and those who engaged in them
could be fired by their employers without recourse. As critics have pointed out, this
doctrine was nowhere mandated by the terms of the Wagner Act or even, TaftHartley or Landrum-Griffin. It was invented by the courts—and particularly by
liberal justices of the Warren Court, including Justices Brennen and Douglas.66
All of this had the net effect, to quote Jack Getman and Ray Marshall of making
“strikes and picketing unlawful or unprotected in virtually all situations other than a
strike by a recognized union to achieve a new collective bargaining agreement or a
strike to protest an employer’s unfair labor practice. Even in these situations, strikes
can [often] be permanently replaced.”67 What Getman and Marshall might also have
noted is the ironic degree to which these limits right to strike, drastic though they
were, remained firmly within a framework of government-sponsorship of the right to
strike inaugurated by §7(a) and the Wagner Act in the first place.
Of course, the illegitimate, eventually illegal, character of sit-down strikes and mass
picketing, or for that matter secondary boycotts and other militant tactics, did not
completely prevent them functioning as effective modes of striking, not in their
heyday anyway. These tactics were so important in building the labor movement and
securing labor rights precisely because the authorities were forced for a time to
tolerate them, or were otherwise unable to stanch them. And oft-cited example of
this sentiment can be found, for instance, the Third Circuit’s published opinion in its
review of the main NLRB case against Republic Steel, in which the court rejected the
company’s view that thousands of strikes fired at the end of the Little Steel strike
were disentitled to reinstatement because of their alleged involvement in strike
violence.
We think it must be conceded, however, that some disorder is
unfortunately quite usual in an extensive or long drawn out strike. A
strike is essentially a battle waged with economic weapons. Engaged
in it are human beings whose feelings are stirred to the depths. Rising
For a critical review of this doctrine, see James B. Atleson, The Circle of Boys Market: A Comment
on Judicial Inventiveness, Berkeley Journal of Employment and Labor Law, 7 (January 1985): 88.
67 Getman and Marshall, The Continuing Assault on the Right to Strike 718.
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passions call forth hot words. Hot words lead to blows on the picket
line. The transformation from economic to physical combat by those
engaged in the contest is difficult to prevent even when cool heads
direct the fight. Violence of this nature, however much it is to be
regretted, must have been in the contemplation of the Congress
when it provided in Sec. 13 of the [Wagner] Act, 29 U.S.C.A. § 163,
that nothing therein should be construed so as to interfere with or
impede or diminish in any way the right to strike. If this were not so
the rights afforded to employees by the Act would be indeed
illusory.68
This remarkable expression of judicial realism represents a high-water mark of
tolerance of violence in the context of the right to strike—on par with Michigan
Governor Frank Murphy’s refusal to use the National Guard to oust the General
Motors sit-down strikers in the winter of 1937, which enabled the union to win that
strike. But such tolerance was not only short-lived but far from universal. In the
course of the Little Steel Strike, which was provoked by the companies’ flagrant
violations of the labor law, the Roosevelt administration stood aside as Republic
Steel and its agents overwhelmed the strikers with armed forces and economic power
at the cost of at least sixteen unionists’ lives—Franklin Roosevelt himself
pronounced the conflict a “plague on both your houses.” And the New Deal
governors in Ohio and Pennsylvania effectively ended the strike by dispatching state
troops to push aside mass picketers and oversee the reopening of struck mills.69
But why was there any tolerance of such militancy in this period? To start with, one
cannot discount the combined effect of surprise and sheer numbers in delaying an
effective response. This was clearly true of the sit-down strikes, which exploded on
the scene in early 1937 and then faded fairly quickly. Then, too, there was the
volatility of the political situation and, especially prior to the Jones & Laughlin
decision, the value to those who supported the Wagner Act and the New Deal in
allowing the strikes to play out for a time, even if they did not fundamentally support
them as a tactic. In this vein, there was also the sui generis nature of the New Deal
itself, in line with Jefferson Cowie’s recent rereading of the unique politics of the
period. The depth of economic crisis, the unprecedented (but temporary) weakening
of capital as a consequence, the threat of communism, the predominance of a
Fordist system of production amenable to externally imposed organizational norms,
eventually the war—these were but the most prominent of a large number of factors
that diminished and delayed effective capitalist resistance to deviant and erstwhile
unlawful forms of labor militancy.70 Not that the strikes and the upsurge in labor
activism were less than remarkable events authored by workers themselves. But it is
NLRB v. Republic Steel, 107 F.2d 472, 479 (3d Cir. 1939).
White, Last Great Strike.
70 Jefferson Cowie, The Great Exception: The New Deal and the Limits of American Politics
(Princeton, NJ: Princeton University Press, 2016).
68
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hard to imagine that the tactics used then would have been suffered at all under
different circumstances.
Property, Order, and the Limits of the Right to Strike in Liberal Society
A decade ago, Jim Pope made the observation, which he readily attributed to a
surprisingly frank passage in an opinion by Supreme Court Justice William
Rehnquist, that an archaic, common law-notion of the property rights of employers
has consistently been invoked to trump the rights once accorded workers by the
labor law. Pope’s broader point was that courts have imposed these constitutional
norms in an underhanded, intellectually dishonest way to undermine the labor law in
a variety of ways, including by depriving workers of the right to act in “self-defense,”
as by engaging in sit-down strikes; and by validating the replacement worker
doctrine.71
Pope’s perspective is typical of those who condemn the defeat of the right to strike.
In particular, his critique is in rough alignment with two other important studies of
the Wagner Act by James Atleson and Karl Klare. In his 1983 book Values and
Assumptions in American Labor Law, Atleson argues that the Wagner Act was
systematically perverted by values not inherent in “the language of the statute or its
legislative history.” Klare’s contention, featured in an important 1978 article, is that
the Act was recast by the Supreme Court as it “embraced those aims of the Act most
consistent with the assumptions of liberal capitalism and foreclosed those potential
paths of development most threating to the established order.” Like Pope, both
Atleson and Klare develop their claims with specific reference to the right to strike,
including once again sit-down strikes and the replacement worker doctrine, as well
as, in Atleson’s case, slowdowns.72 Getman makes very similar claims, asserting that
the right to strike was the victim of judicial overreach and manipulation.73
Needless to say, what all of these scholars have in mind is not merely the right of
workers to quit work, which the law supports, but which also nearly useless as a
means of protest. Instead, they mean an effective right to strike, one that entails the
ability to put real pressure on the employer without the workers sacrificing their jobs
or unduly compromising their often-tenuous financial well-being.
It requires only a small but important step beyond these authors’ central insight
about the fate of the right to strike to discern something more fundamental and
more sobering than a series of dubious judicial sleights of hand, or a lost
opportunity, in this subordination of workers’ rights to the rights of capitalism,
which is liberalism’s essential antipathy to an effective right to strike. In fact, as we
have already seen, not only courts (as these critics tend to emphasize) but legislatures
Pope, How American Workers Lost the Right to Strike, 518.
Atleson, Values and Assumptions, 19-34, 44-66.
73 Getman, The Supreme Court on Unions, 52-68.
71
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and executive officials at every level—federal, state, and local—have consistently
invoked the norms of property and social order to limit the right to strike to little
more than the right of the workers to withhold their labor. As they have deprived
workers of the right to engage in sit-down strikes or mass picketing, pushed workers
into litigation and arbitration in lieu of strikes, and subjected them to permanent
replacement if they go out on strike, these authorities have not so much betrayed a
radical potential in the labor law as buttressed the law’s foundations in liberal values
that are anathema to an effective right to strike.
This judgement puts paid to the idea that there could ever be an effective right to
strike, while simultaneously shifting complaints about workers’ inability to strike to
where it more properly belongs, which is not on the doings of this or that judge or
Board members, but on liberalism and the social system on which it rests. It is
confirmed by reviewing a bit more closely the doctrines and practices most
responsible for impairing the right to strike and considering the political and legal
justifications that accompanied their development and implementation, while bearing
in mind the implications for liberalism bedrock commitments to property, order, and
the sovereignty of capitalism were these impositions on the right to strike not
embraced.
Consider the sit-down strikes. In the key case, Fansteel, the NLRB struggled mightily
to preserve its capacity to protect from discharge scores of strikers who had seized a
small specialty metals plants just outside of Chicago and beaten off one attempt by
local police to oust them before being overcome by a larger force nine days after
they had taken control. The agency’s position that the strikers, who had been
effectively fired by the company when the strike ended, rested primarily on the fact
that the company had provoked the strike by its own “gross violations” of the labor
law.74 What the strikers had done was wrong, the agency conceded; but a balancing
of the equities and the need to effectuate the purposes of the Wagner Act mandated
that it order the strikers’ reinstatement. The board disclaimed giving any general
sanction to sit-down strikes. It admitted refusing to reinstate strikers in other cases
involving criminal behavior, but insisted those were more serious cases than the one
at hand. That thirty-seven strikers (and two union organizers) in the case at hand
were jailed and fined for criminal contempt of a judge’s order to quite the plant was,
in the agency’s view, not really its business.75
The NLRB’s position was rejected first by the U.S. Court of Appeals for the Seventh
Circuit then by the Supreme Court, in each instance on very similar grounds. In
essence, both courts ruled that while the company may have violated the labor law,
this misdeed was simply not as serious as the strikers’ affronts to private property
and social order. In Pope’s very apt summation, the case established the maxim that
“the employer can violate the workers’ statutory rights without sacrificing its
Fansteel 5 NLRB at 949.
Fansteel, 5 NLRB at 949-50. On the tally of punishments imposed on the strikers and organizers,
see Fansteel Metallurgical Corp., v. Lodge 66, 14 N.E.2d 991, 992 (Ill. App. Ct. 1938).
74
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property rights, while the workers could not violate the employer’s property rights
without sacrificing their statutory rights.”76
As Pope, Atleson, and Klare all argue, the courts were not bound to take this
position. Without violating the Wagner Act, at least, they could have followed the
NLRB in taking a more pragmatic approach to the issue, one that balanced the
equities differently in this case without endorsing workers’ prerogative to occupy
private property without being provoked into doing so. As Pope is also particularly
keen in emphasizing, the courts could likewise have qualified their views of private
property in the balance, to recognize that workers’ have at least a limited right to
occupy the places where they work, and not just for the purpose of laboring. As far
as it goes, all of this is quite true. But there is necessarily a great difference between
optimistic critique and sober concession; and what Pope and others take as political
choices on the part of the courts can also been seen as their submission of inviolable
mandates in the governance of capitalist society.
Fansteel, in other words, was a necessary decision. It was necessary at once to protect
entrenched capitalist interests and to conform a statute—whose ambiguities in the
context of extreme political circumstances had opened the door to the practice of a
tactic which dramatically increased the power of workers—to those interests and to
notions of private property and social order that aligned with them. To say this is
not to endorse the politics of Fansteel—or Southern Steamship, or the Taft-Hartley
Congress, or the NLRB, for that matter—but rather to acknowledge that what was
done in this case was a non-negotiable requirement of liberal jurisprudence and
liberal conceptions of the respective positions of labor and capital in modern society.
This reading of how the law evolved is entirely consistent with how the sit-down
strikes were treated in other contexts. Following in the path of CIO leaders
themselves, who viewed the strikes as useful expedients that nonetheless presented a
risk to their own authority to control the timing and politics of labor protest, some
legal scholars and commentators supported the strikes but did so reluctantly and
contingently.77 The strikes, they said, were a necessary and excusable response to
extraordinary circumstances in which open shop employers not only flouted the
Wagner Act but fended off unions with extraordinary, often terroristic means of
repression. It was in this frame that legal scholar Henry Hart joined with coauthor
Edward Prichard, a young protégé of Felix Frankfurter, in penning a compelling
defense of the Board’s handling of the Fansteel case.78 Like Lloyd Garrison, dean of
Wisconsin Law School and former New Deal official, most who supporting the
Pope, Worker Lawmaking, 246.
Pope, Sit-Down Strikes, 62-64.
78 Henry M. Hart, Jr. and Edward F. Prichard, Jr., The Fansteel Case: Employee Misconduct and the
Remedial Powers of the National Labor Relations Board, Harvard Law Review, 52 (1938-1939): 1275.
76
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strikes in this fashion conceded that the courts would never honor the practice as a
right.79
Others did go further in justifying the strikes. Leon Green, dean of Northwestern
Law School, depicted the strikes as legitimate means of negotiating a relationship
between workers and employers that no longer contemplated the former being fired
en masse—any more than a wife could “fire her husband, a parent his child.” “It is
thus,” he concluded, “that employees may peacefully sit and wait until their
complaints are ironed out through negotiations.”80 James Landis, who chaired the
Securities and Exchange Commission and was dean-elect of Harvard Law School,
argued passionately in two different speeches delivered at the height of the wave of
sit-down strikes that, even if unlawful under existing laws, the strikes might well
represent the making of a new right. Just as the right to picket or the right to strike
in a conventional way had to be forged in this manner, so might the right to a sitdown strike be unfolding.81
But sentiments among legal scholars mostly ran against the strikes and the Board’s
handling of them.82 Outside of CIO and left-wing circles, Landis and Green were
widely condemned for defending the strikes. Dean Dinwoodey, law professor and
editor of U.S. Law Week, spoke for most legal scholar when he declared in the New
York Times that “under well settled principles of property law, the employer has a
legally protected right to the exclusive possession of his factory or plant, just as the
householder has to the exclusive possession of his home.” In this sense, Dinwoodey
said, the strikers were little better than trespassers.83
The newspapers took a similar, albeit often more vitriolic, stance. Among Washington
Post’s many criticisms of the sit-down strike were declarations that the tactic was a
“social menace,” and “act of war,” and then celebrated the apparent increase in
opposition to the practice.84 Even a majority of the public opposed the tactic. A
survey by Fortune magazine completed in the late spring of 1937 showed that
although very few members of the public (and of business community) thought it
worth bloodshed to repress the strikes, the majority disapproved of them. In fact,
even a majority of workers appeared to reject the tactics. A similar survey by Gallup
Lloyd K. Garrison, Government and Labor: The Latest Phase, Columbia Law Review, 37 (June
1937): 897, 905.
80 Leon Green, The Case for the Sit-Down Strike, New Republic, Mar. 24, 1937, pp. 199-200.
81 B.W. Patch, Patch, Control of the Sit-Down Strike, Editorial Research Reports, Mar. 26, 1937.
82 See for example David Lawrence, Laws or Men, Dicta 17 (January 1940): 5, 8; Chester Ward,
Discrimination under the National Labor Relations Act, Yale Law Journal, 48 (May 1939): 1152, 1162;
Robert S. Spilman, Jr., Labor and the Law, West Virginia Law Quarterly, 44 (February 1938): 87, 10002; George B. Weisiger, Reinstatement of Sit-Down Strikers, Minnesota Law Review, 23 (December
1938):
83 Dean Dinwoodey, Sit-Down Strike’s Legality Debated, New York Times, Jan. 17, 1937, pt.4, p.6.
84 The Sit Down and Mr. Ford, Washington Post, Apr. 9, 1937, p. 8; Shall Sit-Downs Be Legalized,
Washington Post, Feb. 1, 1937, p.4; The Sit Down Strike, Washington Post, Jan. 27, 1937, p.8.
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taken around the same time showed that two-thirds of respondents favored
outlawing the strikes.85
Well before the wave of strikes began to abate later in 1937, the business and its
allies in Congress were pushing legislation to bar them. Although it did produce a
resolution condemning the practice, the effort to ban the strikes failed, probably
because its impetus was dissipated by a recognition on the part of liberals who
fundamentally opposed support the tactic that employers were culpable in provoking
the strikes, and that the fate of the Wagner Act and the New Deal was uncertain and
might depend on the strikes succeeding.86 As the sit-downs faded in frequency later
in the year, the concern with them was displaced by a broader campaign against
strike militancy. However, some states did ban the tactic—a few in 1937, others in
the years that followed.87 It is significant that throughout all of this, the virtues of
property and order were consistently invoked against strikes; and nowhere were the
strikes defended in any but the most contingent terms. Such legislative opposition to
the strikes may well have been politically mistaken and morally unfounded, and can
be dismissed on these grounds; but one has to acknowledge the relevance of these
proceedings in expressing the dominant norms regarding the appropriate boundaries
of labor protest at the time.
A set of similar points can be made about mass picketing and the broader
proscriptions on strike-related misconduct imposed by the Taft-Hartley Act. Like
every other aspect of Taft-Hartley, the amendments directly touching on mass
picketing—§8(b)(1)(A) and §10(c), which made mass picketing and other overtly
coercive forms of protest enjoinable as unfair labor practices, and the workers who
engaged in them barred from reinstatement—were strongly supported by the
business community, including both prominent employers and business associations
like the National Association of Manufactures and the U.S. Chamber of Commerce.
Witness after witness regaled the Congress with stories of how the practice gave
unions too much power, eroded the power of owners and their supervisors, and
threatened the American way.88 Their position reflected their class interests. But
these interests also aligned conveniently with an opposition to violence and disorder,
and a veneration of property rights. It was in precisely this way that those
Congressmen and witnesses who favored restricting mass picketing and other forms
of coercive protest were able to couch this position as something other than an
attack on the “legitimate” rights of labor.
Added proof that mass picketing was illegitimate can be found in the fact that no
scholars would defend it—at least not beyond the point at which it became coercive,
which was of course the very point of employing it. Elite editorialists roundly
condemned the strikes. The New York Times declared that tactic a “seizure” that was
Gallup Poll: Public Opinion, Volume I: 1935-71, (New York: Random House, 1972), pp. 31, 49, 52,
55, 62-63.
86 Pope, Worker Lawmaking, 94-95; Patch, Control of the Sit-Down.
87 Millis and Brown, From the Wagner Act to Taft-Hartley, 127-28.
88 White, Workers Disarmed, 88-97.
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“by its very nature illegal because it infringes both individual and property rights.”89
In Congress, only a few labor leaders stood against the torrent of criticism of the
practice by businessmen, conservative unionists, and congressmen and senators.
With only a couple of exceptions, most of them qualified their defense of mass
picketing by downplaying the tactic’s coercive qualities—again the very thing that
made it so effective in the first place.90 While the political implications of this
campaign against mass picketing are dubious as the attacks on the sit-down strikes,
its value in expressing dominant political judgments concerning the tactic are not.
And then there is the replacement worker doctrine where, if anything, the change in
the law even more clearly reflected the depth and power of liberal norms. For the
rule established in Mackay Radio came out of the blue, in a case which required no
such doctrine to be resolved, with no support from the text of the Wagner Act, and
on the basis of legislative history that was ambiguous as best. Worse, as Getman
points out, the rule is in direct conflict with the very statutory principle of barring
discrimination on the basis of a worker’s assertion of the basic labor rights laid out in
§7 that it supposedly derives from.91 As an exercise in statutory construction and
administration, it makes no sense; but as a defense of property rights it makes all the
sense in the world.
One way of understanding this point about Mackay Radio is to consider what would
have happened had the Court decided the matter in a fundamentally different way.
One possibility is that strikes would have proliferated to an extraordinary extent, as
workers could at least plausibly have expected to be able to strike under a broad
array of circumstances and yet be restored to their jobs no matter the outcome.
Another, more likely possibility is that precisely because of this prospect of
widespread disorder antithetical to capitalist property rights, Congress would have
stepped in with its own rule permitting the replacement of such workers. Either
way, it is difficult to imagine an alternative to what the Court did surviving for very
long—a point that also draws support from labor’s failure to repeal the rule in
Congress in the early 1990s.
This simple exercise in counterfactual speculation bears similar fruit in regard to
other, more basic, limitations on the right to strike, including those imposed relative
to sit-down strikes, mass picketing, and secondary boycotts. Shrill and selfinterested though it was, all the testimony from employers and their allies during the
hearings on Taft-Hartley or Landrum-Griffin about the perils posed by these tactics,
was fundamentally correct. For were workers able to make unfettered use of sitdown strikes, mass picketing, and general strikes and sympathy walkouts, they could
have very much challenged the sovereignty of capitalists in and about the workplace,
and with this the bedrock institutions and norms of liberal society. Unsurprisingly,
this proved intolerable.
Mass Picketing, New York Times, Feb. 28, 1946, p.18.
White, Workers Disarmed, 97-99.
91 Getman, The Supreme Court on Labor, 50.
89
90
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Conclusion
One of the outstanding ironies in a story rich with many is that the very things which
made the prospect of an effective right to strike seem for a time so viable—the
unlawful, illiberal, and altogether intolerable coerciveness of sit-down strike and mass
picketing—are also what made this concept impossible to ever realize. As we have
seen, effective strikes could build the labor movement, validate the Wagner Act, and
secure the New Deal, in many ways change America. But they could not makes
themselves legitimate.
So it is that workers have found themselves with a right to strike that equals little
more than a right to quit work—and maybe lose their jobs or their houses and
savings in the balance. They have a right to strike, as Steinbeck’s character, Mac,
complained, but they “can’t picket”—at least, not in a way that coerces anyone. And
so they do not strike—in fact, under these circumstances they should not strike.
There is little hope within the prevailing political and juridical order that things could
ever could be or will be any different. Of course the right to strike could be
fundamentally reconfigured in illiberal, corporatist terms, such that governments
might intervene to negate these dynamics and make the right effective. But such an
approach has been long alien to American labor relations and political economy. It
has no real chance of being adopted. And if it were, it is not at all clear that it would
be to the ultimate benefit of workers, who are consistently required to surrender
rights as a condition of corporatist management.
Where does this leave workers and unions? Are they bound like Steinbeck’s strikers
to meet defeat, albeit in a more peaceful way? In one of his many commentaries on
the sit-down strikes as they raged across the country in the spring of 1937, Walter
Lippmann took time to analyze one of the speeches in which James Landis had
argued that the tactic might well become a new right, in the same way that the right
to strike at all had been created through its persistent assertion in the face of
opposition and incredulity. No revolutionary, Lippmann nonetheless understood
what Landis apparently did not: that the right Landis spoke of was revolutionary in is
conception, and therefore not so much an impracticality but a contradiction. “Never
in the history of law has rebellion been made lawful. Only the rights demanded by
the rebels have been legalized,” said Lippman.92
As Atleson, Getman, Klare, and Pope all understood, the tactics that made for an
effective right to strike were tolerated only so long as there was not a functional
system of labor rights in place, one that could stand alone in courts and hearing
rooms. Once this was the case—once the rebels unionists’ aims, or at least those
imputed to them, were realized—the sit-down strikes were predictably banned, and
Walter Lippmann, Mr. Landis and the Legality of the Sit-Down Strikes, Daily Boston Globe, Apr. 6,
1937, p.18.
92
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then so were mass picketing, secondary boycotts, and so forth. Even more recent
attacks on the right to strike, such as complaints in the 1980s about union violence
going uncensored and the modest moves by the NLRB to rein in this, too, are
inevitably justified not in terms of overthrowing the system of labor rights but
managing it, reconciling its virtues with the normative and juridical mandates of
liberal society. And so it is that the right to strike—the right to an effective strike—
has been sacrificed not in the name of capitalist hegemony but on liberalism’s altar of
labor peace. Unfortunately, so far as the interests of workers go, these are the same
thing.
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