Labor Day Special : Labor Law Stories

Book Review:



When I started practicing labor and employment law in the mid-80s, the days when management labor lawyers primarily handled matters involving unions and collective bargaining were fast receding, with the ebbing tide of union strength and the rising tide of discrimination and wrongful discharge litigation.

But a quip from those days remained and was passed on by my mentors: "labor law isn’t hard; you only need to know one statute" (the National Labor Relations Act, or NLRA).

The inside joke was that though the NLRA is but one fairly short statute, it has never been simple. The NLRA and its amendments were born of tough legislative compromises that created very general, sometimes contradictory language and left massive interpretive gaps. It has been administered for about seventy years by an agency (the NLRB) that eschews rulemaking in favor of common law style case-by-case decisionmaking. Tough issues follow a long, costly, and time-consuming path from NLRB regional office to NLRB in Washington, to federal court of appeals, and finally to Supreme Court, where a long string of landmark decisions have shaped labor law and labor relations.

Labor Law Stories, the latest in an innovative series of "Law Stories," edited by Laura J. Cooper and Catherine L. Fisk, is a 2005 publication of Thomson West’s Foundation Press. This book,in which law professors examine a series of the most important labor law decisions, all but one by the Supreme Court, appears primarily directed at an academic audience, including law students -- for whom it may meaningfully supplement the more standard "casebook" treatment.

It is not surprising that at times, some of the authors revert to typical law review style. They are, after all, engaged in serious scholarship, not simple storytelling, creating important works of legal history, with footnotes reflecting original research from sources such as local newspapers, personal interviews, letters, briefs, and audiotapes of oral arguments.

Nonetheless, at its best moments each chapter manages to transcend its academic manner and tell its own unique and fascinating labor law story, making rewarding reading for anyone with an interest in labor law, the labor movement, or 20th-century American legal and economic history. Several chapters also provide important insight into lesser-known episodes in the civil rights movement and should be of considerable interest for readers studying issues of race in America.

Labor Law Stories is perhaps most fascinating for disclosing the background of some decisions that truly may have been turning points for American labor.

The first chapter, by Julius G. Getman and Thomas C. Kohler, concerns NLRB v. Mackay Radio & Telegraph Co., holding that although the NLRA protects the right to strike, employers have the right to permanently replace strikers. Employers' exercise of this right is often blamed for the weakness of unions and their declining popularity among employees. An excerpt from this chapter is available at Amazon.

The fifth chapter, by Laura J. Cooper and Dennis R. Nolan, concerns NLRB v. Gissel Packing. One issue discussed is the evolution of the law on an employer's right to insist on an NLRB election despite being shown union authorization cards signed by a majority of its employees. This continues to be a sore point with unions, which seek the right to card-check recognition.

Labor Law Stories -- and, presumably, its companions in the "Law Stories" series -- has the potential of filling an important gap in legal education. For years there have been complaints that law school doesn't teach enough lawyering skills. In the 20-some years since I was a law student, it appears there have been significant changes to address this complaint, including legal clinics and trial practice classes.

In my mind, however, the traditional objective of teaching students to "think like a lawyer" continues to be extremely important and difficult to achieve. Routine classroom instruction in substantive law, which exposes students to rapid-fire reading and analysis of huge quantities of case law, runs a danger of failing to convey enough about the process of making law.

Landmark cases, particularly Supreme Court cases, have a way of seeming preordained. Students trained to view court decisions as tools for advocacy, but not to understand how such decisions are the culmination of numerous lawyering and judging choices -- with many "roads not taken" -- may lack the insight and creativity needed to successfully conduct litigation.

Studying "Law Stories" entails visiting a smaller number of cases in much more depth, taking time to meet the parties and their attorneys, learn their backgrounds and motivations, explore the myriad strategic choices of litigants and their counsel, review the agency and lower court proceedings, and learn how the briefing and argument contributed to the final outcome. Such immersion in the long story of a single case as it makes its way to the Supreme Court can help provide the needed sense of process.

It would be a mistake for a casual reader to think that Labor Law Stories simply tells engaging historical stories. It does so, but they are wrapped in serious scholarly content relating the personalities and stories to key labor law principles. A basic grasp of labor law is not an absolute prerequisite to reading this book, as the professors have made an effort to explain the principles required for understanding each chapter.

In the end, the success of Labor Law Stories, and its uniqueness, is in providing an inside view of the process of making labor law, through a mixture of the facts and legal principles, people and companies who participated, and detailed procedural history of each case.

[Disclosure: several months ago, I was asked to review this book, and received a courtesy reviewer's copy. Additionally, I am placing at Amazon ad in the right sidebar. Should you choose to purchase the book and do so through this link, I will receive a slight commission.]