Berkeley Talks transcript: Berkeley Law Professor Catherine Fisk on reimagining labor law

Intro: Hello. How’s everybody doing today? Welcome to week three the Osher Lifelong Learning Institute’s winter speaker series. Thanks for braving the wind and rain to be here. Our speaker today is Catherine Fisk and the title of her talk is “Reimagining Labor Law.” Professor Fisk joined the Berkeley Law faculty in 2017. Prior to this, she was a member of the founding faculty of the University of California Irvine Law School. Her other faculty appointments include Duke University Law School, the University of Southern California Law School, and Loyola Law School of Los Angeles.

Fisk’s recent books include Writing for Hire: Unions, Hollywood, and Madison Avenue and two casebooks — Labor Law in the Contemporary Workplace and The Legal Profession. She’s also the author of Working Knowledge: Employee innovation and the Rise of Corporate Intellectual Property. Her current book project, Illegal History of Lawyers for the Labor Movement in the Mid-20th Century, examines the challenges faced by lawyers and labor unions as the courts and Congress steadily increased restrictions on labor protest between 1940 and 1990. Please welcome Catherine Fisk.

Catherine Fisk: Thank you very much for coming today, and I especially appreciate it given the weather. So if you came hoping for a talk about contemporary labor law reform efforts, you’ll have to wait until the end to hear about that. I’m going to talk to you a little bit about the book that I’m researching now, which as was said, looks at Labor lawyers and Labor protest in the mid 20th century. And to tie it all together, we will see that labor law reform projects that are going on now are essentially an effort to undo the law that I’m going to talk to you about and the consequences that that law brought about.

Some of you may remember this from firsthand knowledge, and so I’m not telling you anything that you don’t know. But in the 1950s, the labor movement declined as a social movement. It had been the social movement in the 1930s labor activism, strikes, general strikes here in San Francisco in 1934 and in Minneapolis in the same year. Picketing boycotts were one of the factors that completely transformed the American economy and gave the political impetus for the adoption of the new deal and for the Supreme Court’s decision in 1937 to see striking down progressive economic and social legislation and instead allow Congress and the states to regulate wages, hours, conditions of work, and also to stop treating labor unions as unlawful conspiracies, which they had been treated as an unlawful conspiracy from the early 19th century in the United States all the way up until the mid 1930s.

After the adoption of the new deal, the National Labor Relations Act, also known as the Wagner Act, which protects the right to join a union and bargain collectively, the Supreme Court began raining in labor protests by finding that it was not speech protected by the first amendment. And then as you may know, and I’m going to talk a little bit more about this, there were a whole series of cases brought against unions against their lawyers trying to restrict activism by labor unions. And the hypothesis that I’m exploring in this book and then I’m going to talk to you about today, is that the legal restrictions on labor protest and the efforts to go after unions and their lawyers who engaged in the protests were one of the things that transformed the labor movement from a social movement into sort of a bureaucratic institution of advanced capitalism and then into whatever it became by 1980. I’ll let you apply your own noun or adjective based on your own knowledge of the labor movement.

At the same time starting, as you may know, depending on where you start counting in the 1930s 40s 50s and 60s, the Civil Rights Movement embraced all the tactics that the labor movement had once used to pressure, legal change, social change, and eventually the supreme court treated social civil rights activism as speech protected under the First Amendment and as a valuable social phenomenon.

And so what explains these different trajectories of social movement activism and the law when both of them were fundamentally about redistribution of economic power from the top of the wealth and power hierarchy towards the bottom? That’s what I’m looking at. If you know any labor history, this will be familiar to you, but these are sort of the familiar stories about what happened between 1940 and 1980 first of all, in 1947 Congress enacted the Taft Hartley Act, which made it unlawful for a union to try to enforce the rights of its workers under federal law. If any officer of the union refused to swear an affidavit that he or she was not, never had been a member of the Communist Party. It was a controversial provision of the law. Most unions eventually knuckled under and signed those affidavits or ejected from their leadership.

Those leaders who refuse to sign one of the very few unions that resisted that was the west coast international, longshore and Warehouse Workers Union, the West Coast and I’ll talk a little bit more about them in a minute. But when you ousted all the suspected communists, actual communist, former communists or people who wouldn’t say whether what they thought about communism from the labor movement, you ousted most of the activists on the progressive left. Also those people who were most committed to racial egalitarianism because whatever else you want to say about the Communist Party in the 30s and forties they were very active in opposing race discrimination in employment and elsewhere.

We’ve also heard the familiar story that labor became more conservative because the craft union tradition, think of the construction trades, the painters, the brick layers, and the sheet metal workers. They dominated and they tended to be more conservative, focused on skilled labor rather than industrial unionism of the Congress of Industrial Organizations or other worker organizations. That favored a more broad scale approach to organizing and bargaining. A familiar story is that after the Taft-Hartley Act, especially labor unions embraced collective bargaining as the way to improve wages and working conditions over legislation or other methods by which conditions could be improved. And so it later voluntarily became a very sort of contract based and bureaucratic institution that was good at protecting its members but not so much anybody else.

The classic example of that of course is the United Auto Workers at the teamsters, both which negotiated very good working conditions for their members, some people think at the expense of nonmembers. The National Labor Relations Act, the NLRA, the Wagner Act enacted in 1935, excluded from coverage agricultural and domestic workers, which meant it excluded very large numbers of Latinx and African American workers who worked predominantly in domestic and agricultural work. It was a political compromise that some people thought was necessary to get the legislation through Congress, because at the time the Democratic Party, which was the party that was advocating the National Labor Relations Act, had southern members who were rock solid racist.

And as a condition of getting their votes, which was necessary to get the bill passed, they compromised to leave labor relations in the south and the southwest on touched for a whole variety of reasons. Some having to do with the racism of the dominant unions, some having to do with decisions that, the National Association for the advancement of colored people made about what to prioritize. There came to be a division between labor law, which refers to unions and collective bargaining and employment discrimination or fair employment practices law, which prohibits status-based discrimination. And these two bodies of law being separate and separately enforced, some people believe had longterm consequences both for the nature of American liberalism and American politics, but also for the strength of labor as a movement.

And then of course, the NAACP quite famously in the late 40s turned away from an early emphasis that he had had on allying with labor movement to focus on nondiscrimination by unions and also by employers and getting black members into unions in favor of focus on education, Brown versus board of Education, and places of public accommodation. And that this strategic choice that the NAACP made had longterm consequences for Labor civil rights coalitions.

As you may know, at the very end of his life, Dr. Martin Luther King had begun to rethink the wisdom of focusing just on education in places of public accommodation and was in Memphis in April of 1968 to support the sanitation workers strike. And we’re starting to move in the direction of allying with labor, but his assassination cut that short. And so for all these reasons, people think there was a decline in what could have been a multiracial or interracial class based Working People’s Movement in favor of the Labor Movement over here and the Civil Rights Movement over there.

One of the things that my book project that I’m working on, is trying to focus on is, what role did lawyers play in all of this? Because of course there’s a law professor and somebody who’s interested in studying the legal profession. And as a former Labor lawyer, I always think there’s a lawyer story there. So let me take you back to the middle of 1930s Washington DC in particular, although not exclusively. An organization, known as the new Negro Alliance, began to focus on businesses that were quite owned in black neighborhoods that sold to black consumers. In fact, many of them had only black consumers essentially because they were neighborhood stores in racially segregated neighborhoods but refused to hire black clerks. The New Negro Alliance began picketing these businesses and they were incredibly successful actually in prompting these companies to change their employment practices.

And so the picture on the left is a photograph of one of the New Negro Alliance pickets. At the same time in Detroit, Akron, and other industrialized cities, we’d had the sit in movement. So there was a massive sit in at the General Motors plant in Flint, Michigan in 1936-1937. It spread throughout Detroit so that as you could see, the picture on the right, the predominantly female employees at the Woolworth’s in Detroit, sat in. That is that they occupied their workplace and refuse to leave until the company recognize their union.

So you have both civil rights, picketing boycotts and labor picketing boycotts, which the story goes, the courts sought to enjoin, but for the fact that Congress had enacted in 1932 a statute notice the Norris-Laguardia Act that made it impermissible for a federal court to issue an injunction in a labor dispute. That’s one reason why there weren’t injunctions against many labor disputes in the late 1930s including the civil rights picketing in the New Negro Alliance. So at that moment, it was in the law. Didn’t matter whether it was a civil rights group or a labor groups that was picketing or calling for a boycott, it couldn’t be enjoined.

Then, the Supreme Court held in 1939 and 1940 that labor protest was speech protected by the first amendment. And in a whole flew of cases, some involving traditional labor picketing at a workplace. One famous case involving the effort of the mayor of Newark, New Jersey to ban the CIO from coming anywhere in the city limits of Newark. And literally they arrested them, put them on boats and sent them back to New York. Supreme Court held that this was speech protected by the First Amendment. And then, the courts started to change its mind. So no sooner had they said that labor protest is speech protected by the first amendment.

Then they began saying, well, except in this circumstance, except if there had been some violence associated with the strike, or except if the workers who were picketing were not employed at the workplace, or accept if the picketing was about organizing a workplace rather than protesting by unionized workers who are already there, or except if the picketing was a so called secondary boycott, that means protesting at one company because of its business relations with another company.

And then there was during the term of World War II, either by law or by voluntary agreement, there were no strikes. More or less, during World War II and the few that existed were enjoined. And then after the war when there had been a huge amount of profiteering by companies producing goods for the war effort. But there had been a ceiling on wages. And so workers had not shared in the economic growth that war production generated. There was a huge wave of strikes starting in 1945,46,47. Republicans got a majority in Congress in 1946. For the first time since 1932, since the 32 election when the Democrats took Congress and Congress enacted the Taft-Hartley Act outlawing the forms of labor protests that were they considered most disruptive and that the labor movement considered most effective.

So then two things happened that I’m going to talk to you a little bit about today that are legally significant. In 1950 the Supreme Court relying on its labor protests case holding that labor protest was not speech protected by the First Amendment held for the first time that civil rights picketing was not speech protected by the First Amendment in a case that I’m going to talk about and then two years later, in another case, Juno Spruce Corp. v. ILWU involving the west coast Longshoreman’s Union, the Supreme Court upheld a staggeringly large damages judgment against the ILWU for some picketing that the union thought was protesting an unfair employer practice but that the court found was illegal under Taft Hartley.

And so the suddenly the stakes for engaging in picketing had gotten a lot higher both for civil rights activists and for labor activists. And that’s what I’m going to talk about for much of the time today. Eventually the Supreme Court backed away from these very conservative positions it had taken with respect to civil rights but never with respect to labor. So in 1963 after the lunch counter sit ins in the began in Greensboro, North Carolina in January and February of 1960 when that litigation reached the Supreme Court, the Supreme Court held that the direct action that had been adopted as a big part of the civil rights movement by the student leaders was speech protected by the first amendment.

Finally, in a case involving a boycott of every white owned business in Claiborne County, Mississippi that came out of the Mississippi freedom summer activism of 1963-64 the supreme court held that a civil rights boycott is protected by the First Amendment in 1982 took that long for the case to get up to the court. At the same time in the same year that the Supreme Court in fact was separated by a few days, at the same time, the Supreme Court held that a labor protest boycott is not speech protected by the first amendment. This is familiar to labor lawyers. It infuriates us. First Amendment Scholars don’t teach these cases because it’s one of them candidly said to me. And I don’t teach them because I can’t make any sense of them. They make no sense. I teach them of course when I teach First Amendment because I think you can’t understand the First Amendment without understanding labor.

But let’s talk about the background of fusers is prerecorded, arose right here in Richmond, California when the layoffs at the ship yards in 1946-47 caused huge increase in unemployment, especially among African American workers who’d come to the bay area to work in the war industry. But we’re the last hired in many cases or were victims of racism. So we’re therefore the first fired and unemployment started to become an alarming problem in Oakland and Richmond, which had substantial at that point, African American populations, a man named John Hughes and another man named Louis Richardson Richardson was the president of the Richmond chapter of the NAACP. And Hughes was the president of the Richmond chapter, progressive citizens of America, which was a national group that favored a third party in the 1948 election. They negotiated unsuccessfully with lucky stores and Oakland base grocery store chain to try to get lucky to abandon its policy of not hiring black store clerks. Lucky refused. And so they took to the streets to pick it just as had happened through with the New Negro Alliance in Washington DC 10 years before.

And so here is the supermarket where they picketed lucky zipped into the State Court in Contra Costa County and got the judge to enjoin the picketing. And the originally when the injunction was issued, Hughes and Richardson and their supporters stopped picketing. They talked to the National NAACP about whether an injunction against this peaceful protest was unconstitutional under the First Amendment and the National NAACP, including Thurgood Marshall encouraged them to make it a test case. So they went back and picketed, got arrested for violating the engine motion and were criminally prosecuted for contempt of a court order.

And as the Richmond Record Herald reported, the injunction against picketing was against picketing that said anything. Their signs among them said, shoot Jim crow out of Lucky’s. They said Lucky needs to stop discriminating on the basis of race. And they also encouraged Lucky to hire African American store clerks into vacant positions until the workforce reflected the demographics of the surrounding community, which was about half black. The reason why they advocated that was because Lucky said “Oh, we don’t discriminate. In fact, it’s the union that’s the problem.” But the retail store clerks, the union that represented those workers had no, no, no. We have black members and we have people that we would refer to lucky if Lucky would hire them or they could hire people who aren’t in the union, and it’s fine with us as long as they join the union. Then like he said, no, no, no, we don’t discriminate. We have one black store clerk, which was a classic strategy for companies that were targeted for race discrimination, is to hire one or two people and say, we’re not discriminating.

And so rather than risk that they were advocating for a representative workforce, which would be evidence that there was not discrimination. Lucky’s lawyers, however, very cleverly focused just on this call for proportional hiring and said, oh, this is race discrimination in reverse. And so they, that was the theory on which the case was litigated. That’s what they advocated in their briefs. It was a successful strategy. The lawyers for the activists were a group of progressive labor lawyers who are also leaders in civil rights lawyer ring in the Bay Area, long time labor, civil rights lawyers. They fought very hard saying, no, no, no, this is about race discrimination. It’s not about what we would now call affirmative action lost in the trial court won in the State Court of Appeal and then they got to the California Supreme Court.

The majority opinion by justice shower here on the left said, this is picketing, not speech protected by the first amendment. We know that from these labor cases and they’re advocating race discrimination and that’s a bad thing. There were two to sense. One by Jessie Carter, the justice in the middle one by the Great Roger Trainer here on the right saying this isn’t picketing, advocating race discrimination. This is picketing advocating an end to race discrimination. And in any case, it doesn’t matter what they’re saying, it’s speech protected by the first amendment. But those were descents.

The case then went up to the United States Supreme Court, the NAACP represented by Marian Wynn Perry on the upper left Thurgood Marshall of course famously Cecil Poole was the lawyer for the NAACP here in the Bay Area. Then got nervous about the case because they were worried that the supreme court was going to focus just on the so called proportional representation aspect of the picketing and not on the picketing advocating the elimination of race discrimination, the CIO, the Congress of Industrial Organizations, and an amicus brief by Arthur Goldberg, who’s shown here on the right, emphasized this is picketing it’s speech. It should be protected by the first amendment. It was entirely peaceful and there was, an addition, a brief by the ACL.

Interestingly from the labor law, standpoint, everybody except for the Labor lawyers wanted to condemn the message on the picket signs. They wanted to say, look, we don’t stand by the advocacy of proportional hiring, but this is speech protected by the First Amendment, kind of a classic ACLU move. We don’t care so much for the message, but we care for the right to say it. Whereas the labor lawyers said, “Could you all just tone down a little bit your criticism of the message? There’s nothing wrong with advocating proportional hiring. It’s the only way we know that discrimination has been eliminated.” But they lost in the U.S Supreme Court in an opinion by Justice Felix Frankfurter here on the left. He held for a unanimous court that the picketing was advocating an unlawful message. It was advocating race conscious hiring.

And most people think of Hughes as the first affirmative action case. And there’s a long section in the Frankfurter opinion saying, look, if African Americans in Richmond can protest in favor of proportional hiring of blacks, why polls in buffalo and Hungarians in Cleveland? And he rattled off every sort of white ethnic group and then some nonwhite groups. Mexicans in San Antonio I think he said could advocate for race-conscious hiring and that would be a bad thing. He also said, moreover California has decided that race discrimination is unlawful and thus California can prohibit the picketing because the conduct, they’re advocating race conscious hiring is unlawful. That was completely wrong as a matter of California law at the time, the California voters had just voted down proposition 11 in the 1948 election, which would have prohibited race discrimination in employment, but they’d voted it down. And even if race discrimination and employment were unlawful in California at the time, which it wasn’t, it’s not at all clear that advocating race consciousness in hiring as a remedy for ongoing illegal discrimination would be unlawful. But Frankfurter didn’t get to balled up in that.

What’s somewhat surprising to me was that Justice Hugo Black here on the right did not in this case, by the late 1940 is justice frankfurter representing a conservative group in the court and justice black representing usually four to centers, but sometimes five progressive’s. We’re at war with each other over a whole slew of civil liberties issues. But especially speech justice frankfurter was perfectly willing to uphold injunctions against speech prosecutions for various kinds of speech. And justice black initially had protested this. He had dissented in most of the Labor protest cases in the 1940s. One of the things that I struggled to figure out is why did Justice Black go along with this?

Now some people might say, well, that’s because Justice Black was himself a racist. He had been a member of the Ku Klux Klan when he was a young businessman in a young lawyer running a small business in Alabama in the 1930s. You could argue whether he was a racist or not a racist, but I don’t think that’s what was actually going on here. What was going on is that Black had really struggled to decide which kinds of speech or symbolic conduct like picketing our speech protected by the First Amendment as opposed to just conduct that could be regulated. And he had just the prior year come up with a rule, which he only sometimes really stuck to, which said, look, if what the, what the law is prohibiting is the conduct of walking back and forth with a sign on a stick, the government can prohibit that. What they can’t do is prohibit the message.

And as he read what was going on here, the city, the state had prohibited the conduct of standing on the sidewalk rather than the criticism. I don’t think you could read the facts of the case that way, but that’s what he did. So the Supreme Court upheld the injunction against picketing the case didn’t get much news. That’s because the very same day they handed down Hughes Versus Superior Court. They handed down a couple of cases upholding crucial provisions of the Taft-Hartley Act Against First Amendment challenges, including the provision requiring all union officers to swear a non-communist oath and including the provisions outlawing picketing by labor organizations for purposes of organizing or seeking recognition.

The lawyer for the civil rights plaintiffs in Hughes tried to make the best of a bad situation by saying to the People’s Daily and the Left Wing newspaper, that although the court upheld the injunction, the sort of silver lining is that where Felix Frankfurter said, oh, well this picketing was contrary to the California nondiscrimination policy. At least the Supreme Court Thought California Law Prohibited Race Discrimination and employment. So maybe we could make some use of that. They never could of course, because California didn’t until they changed their law. The reaction to Hughes at the time in the conventional press or the right wing press, the San Francisco Chronicle was much more typical of praising the upholding of the injunction on the grounds that if this kind of speech could be allowed, all sorts of horrible things might happen. The Chronicle’s editorial in defense of this opinion is so racist itself that I actually couldn’t put much of the language in it cause I wasn’t willing to put it up on the screen. But sort of saying, look, this is perfectly fine. This kind of picketing has to be stopped.

Alright, so come with me in a minute to think about other labor civil rights cases for the path that was followed at this time elsewhere in Hawaii in the 1930s, the economy was a racially segregated plantation economy. There were five white families that were largely descendants of missionaries who had gone to Hawaii in the mid 19th century who controlled everything. They controlled agriculture, which was by far the dominant industry in Hawaii at the time. Sugar especially slightly less so pineapples. They controlled shipping in and out of the islands. The Matson line, which was the big cruise, but also merchant ships that went from the west coast to Hawaii, were owned by, at least in part, by the big five families from Hawaii. And they ran an incredibly racially segregated plantation economy where whites occupied this tiny little strip at the top of the economic hierarchy. Native Hawaiians, Japanese, Chinese, Puerto Ricans, Filipinos, and Portuguese were imported labor to work in the fields.

In the period just after the end of World War II and sort of as it was ending after martial law in Hawaii was lifted, because Hawaii was under martial law for much of the war and among other things under the martial law in Hawaii at the time, it became unlawful to quit your job. And indeed, those people who quit their jobs after Pearl Harbor was bombed were forced to go back to their pre December 7th employment at their pre-December 7th wages. The government took over all industry, including all agriculture in Hawaii and operated it through the big five plantations for the benefit of war production, guaranteeing an 8% profit for the owners. But workers’ wages were stuck at pre-war levels. This was regarded as hugely problematic for a whole ton of reasons that progressive West Coast ILWU decided to try to organize or support the organizing efforts of the agricultural workers in Hawaii and essentially formed one big union that represented everybody from the longshoreman working on the docks to the sugar harvesters, planters, processors, the pineapple workers.

And it was very significant that this was an interracial union. Everybody could join. And indeed the union was pretty determined that the leadership would also be racially representative and partly because of the long history of racial animosity and the growers very adapt use of race and ethnicity to play one group off against the other by saying, Oh, well the Portuguese are a little better than the Filipinos who are at the bottom of the hierarchy. They’re better than the Japanese and the Chinese. There was a big racial hierarchy, which benefited the growers and hurt everybody else. And so the ILWU had run a very successful organizing campaign and organized the high remains. Hawaii had been what we would call a rock solid red state.

Prior to this organization, it flipped and became by the early 1950s a rock solid blue state and has been so ever since. So that’s a great story if you’re interested in labor history. So after a huge amount of protest and efforts to organize the ILWU, organize the whole island. And it was a very successful organizing campaign and perceived as a huge threat. Not only by the big five families that controlled all the business, but by the business community more generally. I draw your attention to the contrast between Hawaii’s labor history in the mid 20th century and California’s Labor history in the mid 20th century, where there was not the same success in organizing agricultural workers into unions that also represented other workers.

And so one of the reasons that the Delano Grape Strike and Boycott ultimately failed in its most ambitious goals was because you couldn’t actually have a strike in the fields that would affect this supply of agricultural goods in part because the teamsters wouldn’t support the United Farm Workers. And so they would go ahead and load the struck grapes, part because the government helped the growers by allowing them to use guest workers brought in through the Presero Program as strikebreakers. And in part because when the United Farm Workers did get solidarity as they did from the Longshoremen and went and picketed at the docks in San Francisco, Oakland and Los Angeles to try and get them not to load the struck grapes, the picketing was enjoined under the Taft-Hartley act because it was an unlawful secondary boycott and both the ILWU and the United Farm Workers paid very substantial damages for this effort at inter-union solidarity.

And so one of the reasons that the UFW was forced into a consumer boycott, that’s the only thing they could do consistent with the law at the time. But come with me to Alaska because then we’re going to go back to Hawaii, and then we’ll come up to the present. In Alaska, which was within the West Coast Longshore Union jurisdiction, from the 1930s onward, there was a thriving timber industry in Southeast Alaska. There was a lumber mill and Juno that was the changed ownership just toward the end of the war. As the prior owners realized that they were no longer going to make the money they were making through war production and got out while they thought the going was good. It was bought out by a company in Oregon who decided that the thing to do was lower labor costs, which they did. So this is the Juno spruce lumber mill in Juneau, Alaska. They assign the work that of loading lumber that had been performed by Longshoreman in the ILWU to a different union and then sort of had a sweetheart deal with them to allow the Woodworkers Union to cross the ILWU picket line when the ILWU protested the reassignment of work at lower wages to the woodworkers, the picket line for a while close to the lumber mill until the woodworkers decided to cross the picket line in this sweetheart deal and the Juno spruce company went into court to get damages from the ILWU, the local and Juno, which they bankrupted the local, but that was a tiny little local.

What was more significant as they got a damages judgment against the international, which was a powerful union in the late 1940s cause they had just organized Hawaii. They control the entire west coast. They were racially progressive, very activist. And the concern was this union’s model could be a real threat to the capitalism as business knew it throughout the west from Alaska to San Diego and including Hawaii. So they got an enormous damages judgment against the ILWU International. Indeed, it was so large, about $10 million in today’s dollars that it would have bankrupted the union had they had to pay it. The case was litigated all the way up to the United States Supreme Court, which held in 1952 as I told you earlier, that the judgment was enforceable.

Then there began a long effort. There was already ongoing along effort by the lLWU not to have to pay the judgment and here’s how Hawaii comes back into the story. The Juno Spruce Company attached all the bank accounts that the international ILWU had in the bay area and anywhere else. So the union suddenly had to run an entirely cash basis. Money they got in dues, they simply never put in the bank. They paid their staff, they paid the printer for their newspaper six months in advance, which caused all sorts of problems. Nobody likes getting a whole paychecks for six months in cash in one lump sum unless you’re really good at budgeting. And when the union needed money and the international of course would, didn’t it’s self represent anybody directly, they would get per capita payments from a sort of a sliver of the dues from the locals that would enable them to do the work that they did. They would just get cash from the locals, the lawyers for the Juno spruce company.

I am convinced, although I have yet to figure this out through documentary evidence, thought that they could bankrupt the ILWU and perhaps also kill it in Hawaii, which had been such a huge organizing win. And so they went to Hawaii and froze all the bank accounts of the locals in Hawaii and they took the furniture out of the union hall and the typewriters and things like that. So the union was kind of stuck. They really had to figure out how they were going to pay this massive judgment. What they ultimately did in a very clever device is they settled a lawsuit that they had against the sugar growers in Hawaii, took that money settlement money, got the members to agree to give up their claims to their tiny little bits of money paid off the Juno Spruce Company and essentially the union got out from underneath this ruinous judgment.

The reason that I think that Juno Spruce story is significant is because it drove home to the lawyers and the union leaders the tremendous consequences of picketing in a way that a court might decide violated the Taft-Hartley Act because they very nearly lost all the gains that they had gotten through organizing in Hawaii by the company’s effort to collect the judgment from the Hawaii local. But I think the significance for labor law and labor organizing is greater than just injunctions against protest. The government had enacted in 1940 a statute known as the Smith Act, which prohibited advocacy of communism teaching the works of Marx and Lenin, etc. And what it really prohibited was trying to overthrow the government by force and violence, but it was interpreted to also prohibit being a communist party member or teaching communism. There were a couple of very high profile cases, one in New York and one in Hawaii that went after the union or people affiliated with especially the radical left part of the union for violating the Smith Act. What’s also significant is both of these cases generated efforts to go after the lawyers who defended the defendants accused of Smith Act violations.

And so here on the left we have the five lawyers who represented the Smith Act defendants in the most notorious Smith. That case that was in New York, case called Dennis versus United States. Here on the right we have Harriet Bouslog who defended the Smith Act defendants in Hawaii. These lawyers were sent to prison for six months for contempt of court in connection with their involvement in in-the-streets protest of the Smith Act prosecutions. And, Harriet Bouslog was, there was an effort to disbar her and Hawaii for her giving a speech. And this is the photograph of the speech in which she criticized the Smith Act and its use of criminal prosecution against leftist activism. And so the lawyers then we’re suddenly subject to either criminal prosecutions and the left or to losing their license on the right. The lawyers in the left lost their appeal in the U.S. Supreme Court in a case called Safir v. the United States. Harriet Bouslog, whose married name was Sawyer, won her case in part because the composition of the Supreme Court had changed between 1952 and 1959. What I think is amusing about this, you can’t read it. I realize this is a letter to Harriet Bouslog, the Hawaiian Progressive Labor lawyer from a big deal labor lawyer saying after she once, “Hey Harriet, I congratulate you on your great victory. I understand that it was your appearance in court, which convinced Justice Stewart to join Justice Brennan’s opinion for the court.” And he said at the bottom of the P.S. “Don’t let Felix bother you. He’s too old.”

Felix Frankfurter had dissented in Race Sawyer saying, you know, she criticized the courts handling of the case in which she was involved representing the defendant’s. Lawyers can’t do that. Frankfurter apparently completely forgot that when he was involved in the celebrated defense of Sacco and Vanzetti in Boston in the 1920s who are accused wrongfully of having committed some murders. Frankfurter wrote a column for the Atlantic magazine that Brandon, it’s May, 1927 issue. Excoriating the judge in theSacco and Vanzetti case in terms far harsher than Harriet Bouslog Sawyer ever used. But Felix Frankfurter essentially in his old age, I think became a total hypocrite.

So that’s where things stood circa 1959. It was tough on labor, too. Tough for civil rights groups apparently. And then of course, the student lunch counter move, sit in movement, change things forever. This is a photograph of North Carolina in 1960. My favorite picket sign is if Khrushchev can eat here, why can’t we. Obviously you can tell there’s a little tweaking going on. And as I told you when we started after a period of litigation, the Civil Rights Movement succeeded in getting first amendment protection for that kind of picketing. This is a photograph of a mural in Port Gibson, Mississippi, which is in Claiborne County celebrating the successful picketing that and the boycotts of all the white owned businesses that ultimately changed Mississippi fairly significantly.

And this is the front page of the New York Times reporting on the Supreme Court’s decision upholding an injunction and damages judgment against the Longshoremen, the East Coast, the conservative East Coast Longshore Workers Union who, in protest of the Soviet invasion of Afghanistan, refuse to load or unload ships bound for coming from the Soviet Union. Holding that a political strike is not speech protected by the first amendment.

So what does this all have to do with today? There is an ongoing effort of which I am a part that is being organized and staffing is provided at Harvard law school. Whose agenda is to rethink labor law. This is a short account of the agenda. What would have to change in labor law to challenge the growing economic inequality in this country? And among the things that we are considering are the proposals that you can see up there on the screen.

So for example, how should we structure bargaining? One of the things that I think we will very likely propose is to move away from, from based or enterprise based bargaining. The employees of this company bargain with this employer in favor of more broad scale bargaining to try and take wages out of competition. That’s what worked when, the big three automakers were the major producers of automobiles in the United States that the United auto workers, although they bargain separately with GM, Ford and Chrysler, they engaged in pattern bargaining or in professional sports entertainment. There is bargaining across the entire sector so that companies don’t bid against each other to bid down wages.

I think the story about Hawaii and the ILWU is a great example of not merely sectoral bargaining. All agricultural workers are all sugar workers, but indeed regional marketing in those areas where workers go from doing day labor and construction to dishwashing to agriculture have a regional form of setting of minimum labor standards so that there isn’t competition that drives down wages who bargains and over. But the National Labor Relations Act as it was revised in 1947 and the Taft-Hartley App excludes independent contractors. It excludes supervisors and so that means that the person who delivers food stuff through Amazon or the person who makes your coffee drink at Starbucks are excluded because Starbucks treats lots of their baristas at supervisors and Amazon of course treats all their delivery drivers as independent contractors.

I think we need to get rid of the exclusions of those categories of workers, not to mention the exclusions of that cultural workers, domestic workers, so that we have a more sensible way of bargaining for on behalf of everybody who works with everybody who pays them without regard to who’s technically employed, by whom. What kinds of organizations build worker powers? One of the issues that we’re looking at, why was the ILWU successful? In part because they represented lots of people. In part because they were incredibly inclusive in their membership and very creative about trying to make sure that the leadership reflected the views of the membership.

There was also lots of things at the ILWU could do that would recruit people into the union by providing legal services for them in wage and hour cases that weren’t covered by the collective bargaining agreement. They negotiated with them over the housing that was provided by the planters for people working in the fields. Unions provide benefits. The writers guild of America about which I have written, enforces intellectual property rights on behalf of writers, their copyrights overseas. They don’t have copyrights in the U S and their rights to residuals. They train show runners, which is the people who manage television shows, who are writers, guild members. So there are lots of things that Unions can do that help workers, that they organize the labor market, they’re beneficial to employers. And I think we’re looking at things like that.

How can law facilitate the formation and sustainability of organizations? You might have read in the news in June of last year that the supreme court decided suddenly that the contracts that required government employees to pay a fee to a union that represents them to discharge the union’s costs in negotiating and administering the collective bargaining agreement, so called fair share agency fees. The Supreme Court discovered that the only First Amendment right that government employees have is the right not to pay fees to the union that represents them. And it’s true, that is the only First Amendment right that employees have with respect to the negotiation of their wages and working conditions. If you are a government employee, don’t go into your supervisor’s office and demand a raise. You could be fired for that because that is not speech protected by the first amendment. But paying dues to the union to do the same thing is or refute, refusing to pay dues, paying dues, not protected, refusing to pay dues is protected. I mean, this is craziness.

You know, I don’t care where you come out on whether unions are horrible or good. At least the law should be consistent across a categories. How should law treat work or collective action? Basically what I’ve spent a lot of time telling you today is that the law protection for civil rights protest mattered. It’s denial of protection for labor protest also mattered and it’s time to eliminate that difference. How can we provide benefits for workers in a system where most benefits are tied to employment and no medicare for all might be a lovely thing until that happens or might be a terrible thing. I’m not taking a position on that. I need to study it more. But until that happens, it’s tied to employment. How can we make sure that Uber drivers get health insurance? Just like you see employees get health insurance or ups drivers who are unionized. How should protective labor legislation be enforced?

The whole thinking of the National Labor Relations Act, the Wagner Act was that it would be enforced through collective bargaining agreements privately through arbitration or through direct action negotiation. You wouldn’t have to go to court to recover wages that you were entitled to or if you believe you had been retaliated against for standing up for your rights. And then the civil rights law and other laws come along and say, no, no, no. We’re going to rely on court action. What is the right mix of private contract versus court action? What’s the difference between collective bargaining that’s enforced by arbitration where you have sophisticated parties on both sides who have power, who know what they’re doing, who can negotiate for a fair arbitration system and individual employment arbitration, which you know, all of you have signed an individual employment or consumer arbitration, where if you have a concern about unfairness with getting your cell phone provider, you can’t sue them. You can arbitrate on terms that they wrote that they administer. What’s the right system to protect the rights, whether they come from statute or contract that is fair to both sides.

You know the weird thing about the whole Juno Spruce story involving the endless cat and mouse game to collect the judgment is that the money that the ILWU got in Hawaii from settling the wage an hour case against the sugar planters, that money wound up paying the attorney’s fees of the fleet of lawyers who represented the company. The workers never got the money. The company never got the money. The lawyers got all the money. That’s good for lawyers, perhaps not so good for everybody else.

And then finally, recognizing that the regime I’ve told you about focusing primarily on unions and collective bargaining is only one part of a complex web of federal, state and local statutory law cases. How should all of these be tied together? The example I want to give you is that the city of Seattle was concerned about wages and working conditions of for hire drivers, both taxis, traditional taxis as well as app based systems like Uber and Lyft. And so they enacted a statute allowing for collective bargaining by the APP based drivers with the companies, the Chamber of Commerce, which is the business lobbies, litigation. People zipped right into Federal Court to get that ordinance in joined as being a violation of federal antitrust law. That is the argument is the collective action by workers who because they’re independent contractors are not covered by the NLRA and therefore have no right to bargain collectively collective action. They argue by them is an antitrust violation. It’s a conspiracy in restraint of trade.

And so you know, either we need to have workers enabled to bargain collectively or we don’t. But it’s very strange that somebody who, if we could treat them as an employee, you would have a right to join a union, but since they’re not, their collective action violates federal unfair competition law. So we need to sort of rationalize the whole system. All of these proposed reforms are on the agenda. All of them essentially are an effort to fix the mistakes of the 40 years between 1940 and 1980. And I think we would all, business and labor would be better off with some updating of the law.

Thank you very much. I talked too long, and so I don’t have time for collective questions. I apologize. But if you’ve got something you’d like to talk about with me, I’ll hang around for a little bit and I’d be delighted to speak with you. Thank you very much for coming today.