Abstract
Julius Getman, one of America’s preeminent labor law scholars, has written a frank, justifiably cynical, and trenchant appraisal of America’s labor jurisprudence. Eight fast-paced chapters explore what Getman deems “the analytic inconsistency, the repetitive bias and the factual ignorance” that undergird the Supreme Court’s labor cases and explains how these rulings effectively defanged federal labor law, compromising its statutory mandate—to secure the right to unionize for the working classes and to institutionalize collective bargaining throughout the economy.
The Supreme Court on Unions does not chronicle labor’s organizing victories and defeats, nor does it offer a strategy to revive or reclaim labor’s once-heralded power. Getman has already contributed to those important discussions in his acclaimed history of the Jay, Maine, paperworkers’ strike, The Betrayal of Local 14: Paperworkers, Politics and Permanent Replacements (ILR Press 1999), and in Restoring the Power of Unions: It Takes a Movement (Yale 2010), examining the organizing efforts of UNITE-HERE and the potential for a resurgent labor movement despite the failings of federal labor law.
Getman’s new book fills a different niche, providing a concise analysis of the seminal cases demonstrating the Court’s long-standing hostility to labor rights and its failure to offer workers meaningful remedies for employer conduct that undermines those rights. But Getman’s point of entry here differs from that of other prominent legal scholars who have addressed the roots of the judiciary’s antilabor bent.
Unlike William Forbath’s Law and the Shaping of the American Labor Movement (Harvard 1989), Getman’s book is not grounded in critical legal theory and does not explain how law can stifle the development of a militant, class-conscious labor movement. The Supreme Court on Unions is more concrete than Forbath’s book, taking aim at the flawed reasoning and problematic legal policies that underlie the Supreme Court’s crabbed interpretation of the National Labor Relations Act (NLRA). The approach is topical rather than historical; Getman uses each chapter to examine the Court’s rulings on a discrete labor law principle, for example, union organizing, collective bargaining, the right to strike, definitional issues related to who is an employee, or the proper scope of arbitration in workplace disputes.
Getman’s approach is similar to James Atelson’s in Values and Assumptions in American Labor Law (U. Mass. 1983). But Getman, unlike Atelson and Forbath, offers straightforward explanations of the practical consequences of the Supreme Court antilabor rulings. One particular strength of Getman’s book is that it reads as a hornbook, that is, a primer on labor law, albeit one that can critically orient those acquainted with the labor studies field to the seminal decisions that have adversely shaped the legal landscape in which contemporary labor struggles and labor relations are unfolding.
Getman’s critical assessment of the Supreme Court’s labor cases is up to date. He provides a contextualized synthesis of precedent, both recent and long-standing, that will be the legal foil for the Court’s rulings on labor cases that are likely soon to reach the high court. This includes an excellent discussion of the constitutionality of the fair-share agency fee system called into question by Harris v. Quinn, 134 S. Ct. 2618 (2014). Getman also explores the Court’s rulings on the NLRA’s definition of employee, a hot-button issue that will probably reach the Court’s docket in the near future. Getman offers a framework to understand how the Court will analyze whether the burgeoning precarious workforce and their employers—for example, Uber drivers, temp workers, fast-food franchise workers—will be subject, respectively, to the rights and obligations established by federal labor law. The book closes with a timely chapter on Court’s rulings that have favored enforcement of nonnegotiable arbitration provisions that compel workers to give up their right to bring class action wage and hour complaints and other concerted legal claims in a court of law. Notably, this statutory clash over the Federal Arbitration Act and the NLRA’s treatment of employment agreements is scheduled for review in the Court’s 2017 term.
To the degree that The Supreme Court on Unions offers a grand theory or central thesis, it is one that lies at the heart of America’s labor problem. Getman concludes with an important reflection. He contends the history of Supreme Court rulings shows that, with regard to the relationship between labor law reform and labor power, “significant labor law reform is more likely to follow from than to cause a resurgence of the labor movement. . . . restoring labor’s power requires that it once again take on the attributes of a people’s movement.” As Getman aptly notes, this view is gaining ground.