[Excerpted from his David Feller Memorial Labor Law Lecture. Pictures at the original]
http://www.iir.berkeley.edu/events/spring08/feller/
To grasp what needs to be changed, it is necessary to review the thirty
years of policy that got the United States to where we are. But in the
area of labor market regulation, we really need to go back further, to
give the background of a time when we had a high wage national labor
market policy. Between the passage of Section 7 of the National
Recovery Act in 1933 and the passage of the Taft-Hartley Act in 1948,
it was pretty clearly the policy of the United States government to
foster unionization in the private sector. This policy found its
clearest expression in the preamble to the National Labor Relations
Act, but its most powerful political expression in the actions taken by
the War Labor Board. Here is the War Labor Board in action. This man
was the CEO of Montgomery Ward, the Wal-Mart of its day.
Army Seizes Montgomery Ward President
Avery Sewell on April 27, 1944
If you saw this picture in your newspaper, as most American employers
did in 1944, it didn't take much legal analysis to understand that
there could be serious consequences to opposing workers' right to
organize.
The passage of the Taft-Hartley Act, and what Professor Karl Klare of
Northeastern University Law School some years ago labeled the judicial
de-radicalization of the NLRA, moved the posture of the federal labor
laws more in the direction of preserving the status quo and away from
the active encouragement of the growth of private sector unions. But it
was a status quo that centered on collective bargaining. The growth of
labor arbitration, in substantial part as a result of David Feller's
work, of national collective bargaining in industries like auto
manufacturing, steel, coal, and trucking, of structured employee
benefit plans, all were aspects of the institutionalization of
collective bargaining at the heart of the structure of the American
labor market.
Productivity and Wages-the Big Disconnect
[productivity_wages_graph.gif]
And here you can see the results. During the postwar era, America's
workers were able through collective bargaining, to capture most of the
productivity gains in the American economy. This was the period of the
dramatic growth in the real income of most Americans, and the reduction
in inequality to levels that at the time were thought to be indicative
of a modern economy that had put the economic royalist and inequality
of the robber baron age forever behind us.
Then, in the 1980's, the United States began to set the course that led
to the present economic crisis. This was the period when both the
Reagan administration and the business community began to seriously
attack the institutions that drove the high wage postwar economy.
In labor market policy, this was not a gradual development. In 1980,
something fundamentally changed. You can see it here on the graph of
real wages and productivity. They were decoupled. The mechanism for
their decoupling was a fascinating development in labor law. You can
search Lexis and Westlaw and you won't find it. It was neither a
statute, nor a regulation or a case. It was instead an executive order
that on its face applied to the very narrow circumstances of a strike
by air traffic controllers. In the first days of his administration,
President Ronald Reagan responded to a strike by air traffic
controllers by ordering the firing of the striking controllers and
their replacement by "replacement workers."
[nyt.png]
DISMISSED AIR CONTROLLERS WON'T BE REHIRED; Labor vs. Management
By this act, Reagan sent a signal to private sector employers, a signal
comparable in power to that sent forty years earlier by the War Labor
Board. The message was--the federal government fires strikers and hires
replacement workers; you can too. By doing so, the right of employers
to hire permanent replacement workers, a right that had been recognized
in theory by the NLRB in the 1950's, but never acted on, became a
living part of American labor law. Employers used permanent
replacements to break strikes across the industrial landscape in
campaigns like International Paper, Hormel, Caterpillar, Continental
and Eastern Airlines.
<end excerpt>
Michael