Class conflicts of law I: Unilateral worker lawmaking versus unilateral employer lawmaking in the U.S. workplace

Buffalo Law Review

Volumn 56, Issue 4, 2008, Pages 1095-1127

  Pope, James Gray ^a  

^a Lewis and Clark Law School   (United States)

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EID: 62549137906     PISSN: 00239356     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (172)

1. JOHN R. COMMONS, LEGAL FOUNDATIONS OF CAPITALISM 304 (Univ. of Wis. Press 1968) (1924);
2. see also infra Part I.
3. COMMONS, supra note 1, at 304.
4. Id. at 305.
5. See DAVID BRODY, WORKERS IN INDUSTRIAL AMERICA: ESSAYS ON THE TWENTIETH CENTURY STRUGGLE 199-207 (1980) ("workplace rule of law");
6. WILLIAM LEISERSON, AMERICAN TRADE UNION DEMOCRACY 12 (1959) (House of Lords);
7. Archibald Cox, Reflections Upon Labor Arbitration, 72 HARV. L. REV. 1482, 1492 (1959) ("industrial constitution");
8. see also United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 580 (1960) ("A collective bargaining agreement is an effort to erect a system of industrial self-government.").
9. In re General Shoe Corp., 77 N.L.R.B. 124, 127 (1948).
10. Katherine Van Wezel Stone, The Post-War Paradigm in American Labor Law, 90 YALE L.J. 1509, 1513-14 (1981).
11. During the formative period of U.S. labor law, even pro-union progressives blithely assumed away the problem of engendering collective action. To Robert Hoxie, for example, collective action was the "natural consequence" of the tendency for workers who shared a social and economic environment to develop a "group psychology." ROBERT FRANKLIN HOXIE, TRADE UNIONISM IN THE UNITED STATES 59 (1919). Selig Perlman similarly held that the "true psychology" of the wage laborer was to be found partly in "his desire for solidarity," which in turn resulted from the shared experience of labor market participation. SELIG PERLMAN, A THEORY OF THE LABOR MOVEMENT 246 (1949).
12. 5 A DOCUMENTARY HISTORY OF AMERICAN INDUSTRIAL SOCIETY 80 (John R. Commons et al. eds., 1958) (reprinting resolutions).
13. Id. at 81.
14. See DAVID MONTGOMERY, THE FALL OF THE HOUSE OF LABOR: THE WORKPLACE, THE STATE, and AMERICAN LABOR ACTIVISM, 1865-1925, at 9-13 (1987);
15. DANIEL T. RODGERS, THE WORK ETHIC IN INDUSTRIAL AMERICA 1850-1920, at 165-66 (1978);
16. see also LLOYD ULMAN, THE RISE OF THE NATIONAL TRADE UNION 526, 541-42, 545-46, 551-52 (1966) (describing and quoting union legislation regulating work pace in the glass, printing, machinist, and bricklaying trades);
17. Benson Soffer, A Theory of Trade Union Development: The Role of the "Autonomous" Workman, 1 LAB. HIST. 141, 152-53 (1960) (observing that the 'laws" of the iron workers' and typographers' unions "gave them unilateral powers over management functions").
18. BRODY, supra note 4, at 205;
19. see also STANLEY B. MATHEWSON, RESTRICTION OF OUTPUT AMONG UNORGANIZED WORKERS (1931);
20. DAVID MONTGOMERY, WORKERS' CONTROL IN AMERICA: STUDIES IN THE HISTORY OF WORK, TECHNOLOGY, and LABOR STRUGGLES 15-18 (1979);
21. FREDERICK WINSLOW TAYLOR, SCIENTIFIC MANAGEMENT 79-85 (1947).
22. For documentation, see James Gray Pope, The Western Pennsylvania Coal Strike of 1933, Part I: Lawmaking from Below and the Revival of the United Mine Workers, 44 LAB. HIST. 15, 45 (2003).
23. See STEVE BABSON, BUILDING THE UNION: SKILLED WORKERS AND ANGLO-GAELIC IMMIGRANTS IN THE RISE OF THE UAW (1991);
24. CARTER GOODRICH, THE MINER'S FREEDOM: A STUDY OF THE WORKING LIFE IN A CHANGING INDUSTRY 58-61 (1925);
25. HOMER LAWRENCE MORRIS, THE PLIGHT OF THE BITUMINOUS COAL MINER 62-69 (1934);
26. DANIEL NELSON, AMERICAN RUBBER WORKERS & ORGANIZED LABOR, 1900-1941, at 86-87, 93-94, 119-20 (1988).
27. For an example, see Midland Shop Rules, reprinted in Hartley W. Barclay, We Sat Down With The Strikers and General Motors, MILL & FACTORY, Feb. 1937, at 46 (cited as typical).
28. Interview by William A. Sullivan with Nick DiGaetano (April 29 & May 7, 1959) at 22 (on file with University of Michigan-Wayne State University, Institute of Labor and Industrial Relations).
29. See CHARLES MORRIS, THE BLUE EAGLE AT WORK: RECLAIMING DEMOCRATIC RIGHTS IN THE AMERICAN WORKPLACE 4-6, 29-30, 82-87 (2005) (noting the widespread practice of unions bargaining only for their members during the 1930s, with recognition as exclusive representative following later).
30. See JAMES W. KUHN, BARGAINING IN GRIEVANCE SETTLEMENT 139 (1961).
31. For additional documentation, see Jim Pope, Worker Lawmaking, Sit-Down Strikes, and the Shaping of American Industrial Relations, 1935-1958, 24 LAW & HIST. EEV. 45, 76-77 (2006).
32. Teresa Sharpe, Union Democracy and Successful Campaigns: The Dynamics of Staff Authority and Worker Participation in an Organizing Union, in, REBUILDING LABOR: ORGANIZING AND ORGANIZERS IN THE NEW UNION MOVEMENT 62 (Ruth Milkman & Kim Voss eds., 2004).
33. Id. at 76.
34. Id. at 78.
35. Id. at 75;
36. see also LINDA MARKOWITZ, WORKER ACTIVISM AFTER SUCCESSFUL UNION ORGANIZING 129 (2000) (noting that active participation in organizing led workers to develop "a deep sense of efficacy; they believed that what made the campaign successful was the solidarity and activism among the workforce");
37. Steven H. Lopez, Overcoming Legacies of Business Unionism: Why Grassroots Organizing Tactics Succeed, in REBUILDING LABOR, supra note 18, at 114, 130 ("[C]ollective actions contributed something that face-to-face organizing alone could not: a growing feeling of solidarity and power, a sense that the workers were symbolically taking control of the nursing home.").
38. This is the practice, for example, in the ten thousand-member UNITEHERE Local 54, which represents casino and hotel workers in Atlantic City, New Jersey. According to one study, workers who experience participatory unionism during an organizing effort are likely to be deeply resentful if the union shifts to a service model after recognition. See MARKOWITZ, supra note 21, at 144-45, 172.
39. See Preston Rudy, "Justice for Janitors," Not "Compensation for Custodians:" The Political Context and Organizing in San Jose and Sacramento, in REBUILDING LABOR, supra note 18, at 133-49;
40. Howard Wial, The Emerging Organizational Structure of Unionism in Low-Wage Services, 45 RUTGERS L. REV. 671, 678-80 (1993).
41. On occasion, however, organizers and workers do stress legal consciousness. See, e.g., Josephine LeBeau & Kevin Lynch, Successful Organizing at the Local Level: The Experience of AFSCME District Council 1707, in A NEW LABOR MOVEMENT FOR THE NEW CENTURY 121, 132-33 (Gregory Mantsios ed., 1998) (reporting that the "organizer was encouraged to see his work as lawful, and as a mission to proclaim the rights of working people," thereby placing the labor movement in "the larger movement for social justice").
42. This use of the term is consistent with the legal pluralist notion that a society can be said to contain multiple legal orders whenever there is more than one distinct rule of recognition, that is, where two or more bodies of normative principles are "not reducible the one to the other." J. Griffiths, Four Laws of Interaction in Circumstances of Legal Pluralism: First Steps Toward an Explanatory Theory, in PEOPLE'S LAW AND STATE LAW 217, 217 (Antony Allott & Gordon E. Woodman eds., 1985);
43. cf. J. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED AND THE USES OF THE STUDY OF JURISPRUDENCE 8-9 (Isaiah Berlin et al. eds., The Noonday Press 1954)
44. (contending that 'law" can be made only by governmental bodies). In the first half of the twentieth century, the American Federation of Labor claimed to provide a rule of recognition for unofficial laws governing labor - namely, that they were passed by the Federation or by organizations possessing Federation charters - some of which purported to trump official law where the two conflicted. See CHRISTOPHER L. TOMLINS, THE STATE AND THE UNIONS: LABOR RELATIONS, LAW, and the ORGANIZED LABOR MOVEMENT IN AMERICA, 1880-1960, at 58-62 (1985);
45. James Gray Pope, Labor's Constitution of Freedom, 106 YALE L.J. 941, 954-55 (1997).
46. See SIDNEY WEBB & BEATRICE WEBB, THE HISTORY OF TRADE UNIONISM 37-39 (London, Longmans, Green & Co. 1894).
47. See, e.g., Lisa Bernstein, Merchant Law in a Merchant Court: Rethinking the Code's Search for Immanent Business Norms, 144 U. PA. L. REV. 1765 (1996);
48. K.N. Llewellyn, The First Struggle to Unhorse Sales, 52 HARV. L. REV. 873, 903-04 (1939) (referring to the "laws" of merchants).
49. 29 U.S.C. § 151 (2000) ("restoring equality");
50. THOMAS GEOGHEGAN, WHICH SIDE ARE YOU ON? TRYING TO BE FOR LABOR WHEN IT'S FLAT ON ITS BACK 4 (1991) ("unacknowledged legislators").
51. §§ 157-58.
52. See, e.g., C.G. Conn, Ltd., 10 N.L.R.B. 498 (1938), enforcement denied, 108 F.2d 390 (7th Cir. 1939) (reinstating workers laid off indefinitely for following union policy of refusing to work overtime without premium pay);
53. Montgomery Ward & Co., 64 N.L.R.B. 432 (1945), enforcement denied, 157 F.2d 486, 496 (8th Cir. 1946) (reinstating workers discharged for following union policy of refusing to process orders for struck plant of the same employer);
54. Craig Becker, "Better Than a Strike:" Protecting New Forms of Collective Work Stoppages under the National Labor Relations Act, 61 U. CHI. L. REV. 351, 384-85 (1994).
55. Elk Lumber Co., 91 N.L.R.B. 333 (1950).
56. Id. at 335.
57. JAMES B. ATLESON, VALUES AND ASSUMPTIONS IN AMERICAN LABOR LAW 50-51 (1983).
58. Elk Lumber Co., 91 N.L.R.B. at 335.
59. Id. at 337 (quoting C.G. Conn Ltd. v. NLRB, 108 F.2d 390, 397 (7th Cir. 1939)).
60. Courts permitted employers to engage in lockouts in response to various union tactics. See, e.g., NLRB v. Dorsey Trailers, Inc., 179 F.2d 589, 592 (5th Cir. 1950) (holding that employer could lock out workers in response to a strike during the term of a collective bargaining agreement even though the agreement contained no no-strike clause). On the possibility of reducing pay,
61. see Becker, supra note 30, at 384-85. Becker notes that "it might be difficult to distinguish striking from working, and hence docking pay from disciplining employees."
62. Id. (citation omitted). However, on the facts of Elk Lumber, the workers had admitted that they were engaged in a slowdown, and the employer could have verified its countermeasure by calculating it as a percentage decrease equivalent to the percentage decrease in work output. 91 N.L.R.B. 333.
63. See ATLESON, supra note 33, at 59;
64. TOMLINS, supra note 25, at 240-41;
65. Becker, supra note 30, at 383-84.
66. Elk Lumber, 91 N.L.R.B. at 337 (quoting NLRB v. Montgomery Ward & Co., 157 F.2d 486, 496 (8th Cir. 1946)). On the master-servant rule of unilateral employer control, see CHRISTOPHER L. TOMLINS, LAW, LABOR, and IDEOLOGY IN THE EARLY AMERICAN EEPUBLIC 227-28 (1993).
67. NLRB v. Washington Aluminum Co., 370 U.S. 9, 16 (1962) (upholding NLRB's reinstatement of non-union employees discharged for staging an unannounced strike in protest of frigid temperatures in the plant).
68. Ford Motor Co. v. Int'l Union, Local 600, 3 Lab. Arb. Rep. (BNA) 779 (1944) (Shulman, Arb.).
69. Nelson Lichtenstein, Life at the Rouge: A Cycle of Workers' Control, in LIFE AND LABOR: DIMENSIONS OF AMERICAN WORKING-CLASS HISTORY 237-38 (Charles Stephenson & Robert Asher eds., 1986).
70. Id. at 246.
71. Id. at 245-47.
72. Ford Motor Co., 3 Lab. Arb. Rep. at 780;
73. Crider v. Spectrulite Consortium, 130 F.3d 1238, 1242 (1997).
74. Ford Motor Co., 3 Lab. Arb. Rep. at 781.
75. Id.
76. On Shulman's prediliction for the term "jungle warfare," see JAMES B. ATLESON, LABOR AND THE WARTIME STATE: LABOR RELATIONS AND LAW DURING WORLD WAR II 66-67 (1998). On the activism and radicalism of black workers at Eiver Rouge, see generally JUDITH STEPAN-NORRIS & MAURICE ZEITLIN, TALKING UNION 135-40, 143-45 (1996);
77. Lichtenstein, supra note 41, at 245.
78. ATLESON, supra note 47, at 68.
79. Ford Motor Co., 3 Lab. Arb. Rep. at 780. Shop-floor activity did have the potential to disrupt collective bargaining, especially if work groups ignored local union priorities in the pursuit of their own, particularistic interests. However, the steward in Ford Motor Co. was implementing local union policy.
80. Harry Shulman, Reason, Contract, and Law in Labor Relations, 68 HARV. L. REV. 999, 1016 (1955).
81. For a more detailed version of the account presented here, see James Gray Pope, How American Workers Lost the Right to Strike, and Other Tales, 103 MICH. L. REV. 518, 520-26 (2004).
82. NLEB v. Fansteel Metallurgical Corp., 306 U.S. 240, 247-48 (1939);
83. Fansteel Metallurgical Corp., 5 N.L.R.B. 930, 931, enforcement denied, 98 F.2d 375 (7th Cir. 1938), modified, 306 U.S. 240 (1939).
84. Transcript of Record at 23-24, Fansteel Metallurgical Corp., 306 U.S. 240 (No. 436);
85. Henry M. Hart, Jr. & Edward F. Pritchard, Jr., The Fansteel Case: Employee Misconduct and the Remedial Powers of the National Labor Relations Board, 52 HARV. L. REV. 1275, 1280-81 (1939).
86. Fansteel Metallurgical Corp., 5 N.L.R.B. at 942-43.
87. Transcript of Record, supra note 53, at 277, 302, 523, 1413-14 (reporting strikers' testimony);
88. see also Hart & Pritchard, supra note 53, at 1280-81.
89. Fansteel Metallurgical Corp., 5 N.L.R.B. at 944-45, 949.
90. Fansteel Metallurgical Corp., 306 U.S. at 253.
91. "Apart from the question of the constitutional validity of an enactment of that sort," wrote Chief Justice Hughes, "it is enough to say that such a legislative intention should be found in some definite and unmistakable expression." Fansteel Metallurgical Corp., 306 U.S. at 255;
92. id. at 265 (Stone, J., concurring).
93. Id. at 257-58.
94. Id. at 253, 256-57.
95. Id. at 256 (emphasis added).
96. See Crossroads Press v. Graphic Arts Int'l Union, Local 39B, 72 Lab. Arb. Rep. (BNA) 1015, 1022 (1979) (McKenna, Arb.) ("Insubordination does not depend upon the validity of the foreman's order ⋯ but upon [the employee's] refusal to obey a legitimate order from the foreman and grieve later.").
97. JACK BARBASH, THE PRACTICE OF UNIONISM 227 (1956);
98. see also COMM. for ECON. DEV., THE PUBLIC INTEREST IN NATIONAL LABOR POLICY 88 (1961) (noting that, by the 1960s, strikes were "usually tame" but "violence does erupt occasionally, however, usually where the union's continued existence is threatened by an employer's effort to operate his plant during a strike").
99. NLRB v. Union Carbide, 440 F.2d 54, 56 (4th Cir. 1971), quoted in ATLESON, supra note 33, at 76. As Atleson observed, the outside strike and picket line, unlike slowdowns and partial strikes, was considered to be "central to the act." ATLESON, supra note 33, at 76.
100. Elk Lumber Co., 91 N.L.R.B. 333, 337 (1950).
101. NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345-46 (1938).
102. See GEORGE LIPSITZ, CLASS AND CULTURE IN COLD WAR AMERICA 130-42 (1981);
103. ART PREIS, LABOR'S GIANT STEP: TWENTY YEARS OF THE CIO 267-72, 276-78 (1972).
104. Cynthia L. Estlund, The Ossification of American Labor Law, 102 COLUM. L. REV. 1527, 1538 (2002);
105. see also JOSIAH BARTLETT LAMBERT, "IF THE WORKERS TOOK A NOTION:" THE RIGHT TO STRIKE AND AMERICAN POLITICAL DEVELOPMENT 1-5, 151-54 (2005);
106. Joel Cutcher-Gershenfeld, The Social Contract at the Bargaining Table: Evidence from a National Survey of Labor and Management Negotiators, 50 LAB. L.J. 214, 216-19 (1999).
107. Ford Motor Co. v. Int'l Union, Local 600, 3 Lab. Arb. Rep. (BNA) 779, 781 (1944) (Shulman, Arb.).
108. Shulman, supra note 50, at 1021.
109. See Lichtenstein, supra note 41, at 253-59.
110. See infra Part IV.A.
111. NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 257-58 (1939).
112. IRVING BERNSTEIN, TURBULENT YEARS: A HISTORY OF THE AMERICAN WORKER 1933-1941, at 646 (1970);
113. see also PETER H. IRONS, THE NEW DEAL LAWYERS 247-48, 254-71 (1982).
114. Morris M. Kleiner, What Will it Take? Establishing the Economic Costs to Management of Noncompliance with the NLRA, in RESTORING THE PROMISE OF AMERICAN LABOR LAW 137, 140-46 (Sheldon Friedman et al. eds., 1994).
115. See, e.g., 63 N.L.R.B. ANN. REP. 187 tbl.23 (1998) (reporting the median time for NLRB ruling as two years, and for the age of cases pending a Board decision, three years).
116. Lee Pressman, The Norris-LaGuardia Act and the National Labor Relations Act, 2 NAT'L LAW. GUILD Q. 236, 243 (1940).
117. See, e.g., BERNSTEIN, supra note 74, at 743-46;
118. PREIS, supra note 67, at 103-11.
119. See NLRB v. Ins. Agents' Int'l Union, 361 U.S. 477, 490, 493-94 (1960) (holding that slowdowns do not violate the NLRA). At this point the Norris LaGuardia Act continued to bar federal court injunctions to enforce no-strike obligations. Sinclair Ref. Co. v. Atkinson, 370 U.S. 195, 203 (1962), overruled by Boys Mkts., Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235 (1970).
120. BRODY, supra note 4, at 206.
121. See, e.g., Nelson Lichtenstein, Great Expectations: The Promise of Industrial Jurisprudence and Its Demise, 1930-1960, in INDUSTRIAL DEMOCRACY IN AMERICA: THE AMBIGUOUS PROMISE 113, 129 (Nelson Lichtenstein & Howell John Harris eds., 1993). Many union officers were drawn to the new system partly because a reduction in rank-and-file activity promised to reduce the likelihood of democratic challenges to their leadership.
122. See id. Like the industrial relations professionals, these officers did not anticipate that the suppression of direct involvement might eventually undermine the foundations of their organizations.
123. BRODY, supra note 4, at 206;
124. see also id. at 199-207;
125. DAVID GARTMAN, AUTO SLAVERY: THE LABOR PROCESS IN THE AMERICAN AUTOMOBILE INDUSTRY, 1897-1950, at 268-80 (1986).
126. SIDNEY M. PECK, THE RANK-and- FILE LEADER 31-34 (1963).
127. GEOGHEGAN, supra note 28, at 163-64.
128. ARNOLD S. TANNENBAUM & ROBERT L. KAHN, PARTICIPATION IN UNION LOCALS 222 & tbl.46 (1958).
129. George Strauss, The Shifting Power Balance in the Plant, 1 INDUS. REL. 65, 90 (1962);
130. see also LEONARD R. SAYLES & GEORGE STRAUSS, THE LOCAL UNION 108, 165-66 (rev. ed. 1967) (concluding that, in a study of 20 local unions, membership participation usually developed at the level of the work group, and that it could be sustained only when workers experienced it as being effective). For a detailed account of these dynamics in a large Teamsters Local, see SAMUEL R. FRIEDMAN, TEAMSTER RANK AND FILE 42 (1982) (summarizing Friedman's account of the positive effects on worker morale and participation of direct action by work groups).
131. Strauss, supra note 86, at 90;
132. see also SAYLES & STRAUSS, supra note 86, at 161.
133. The significance and effect of such mundane dramas has since been described and analyzed in JAMES C. SCOTT, DOMINATION AND THE ARTS OF RESISTANCE: HIDDEN TRANSCRIPTS (1990);
134. JAMES C. SCOTT, WEAPONS OF THE WEAK (1985).
135. Strauss, supra note 86, at 96.
136. COMMONS, supra note 1, at 301-02.
137. TANNENBAUM & KAHN, supra note 85, at 206-15.
138. Id. at 210 & tbl.40.
139. Id. at 205.
140. See CHARLES R. PERRY ET AL., OPERATING DURING STRIKES: COMPANY EXPERIENCE, NLRB POLICIES, and GOVERNMENTAL REGULATIONS 39-40 (1982).
141. RICHARD A. LESTER, AS UNIONS MATURE (1958);
142. David Montgomery, Industrial Democracy or Democracy in Industry?: The Theory and Practice of the Labor Movement, 1870-1925, in INDUSTRIAL DEMOCRACY IN AMERICA, supra note 81, at 20, 29-30;
143. Sidney Webb & Beatrice Webb, Primitive Democracy in British Trade-Unionism, 11 POL. SCI. Q. 397 (1896).
144. See, e.g., KIM MOODY, AN INJURY TO ALL: THE DECLINE OF AMERICAN UNIONISM 29-30 (1988);
145. Karl E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941, 62 MINN. L. REV. 265 (1978).
146. JOSEPH A. MCCARTIN, LABOR'S GREAT WAR: THE STRUGGLE FOR INDUSTRIAL DEMOCRACY AND THE ORIGINS OF MODERN AMERICAN LABOR RELATIONS, 1912-1921, at 206-08 (1997);
147. MOODY, supra note 96, at 45-51.
148. See TOMLINS, supra note 25, at 240-42;
149. Pope, supra note 17, at 76-77.
150. Judith Stepan-Norris & Maurice Zeitlin, "Red" Unions and "Bourgeois" Contracts?, 96 AM. J. SOC. 1151, 1186 tbl.4 (1991) (concluding that, in a study of collective bargaining agreements in California, although the incidence of such provisions did increase over time, it remained below fifty percent through the first half of the 1950s).
151. SUMNER H. SLICHTER ET AL., THE IMPACT OF COLLECTIVE BARGAINING ON MANAGEMENT 667, 670 (1960).
152. See, e.g., RALPH DARLINGTON, THE DYNAMICS OF WORKPLACE UNIONISM: SHOP STEWARDS' ORGANIZATION IN THREE MERSEYSIDE PLANTS (1994);
153. J.F.B. GOODMAN & T.G. WHITTINGHAM, SHOP STEWARDS IN BRITISH INDUSTRY (1969);
154. David Brody, Workplace Contractualism in Comparative Perspective, in INDUSTRIAL DEMOCRACY IN AMERICA, supra note 81, at 176, 183-84;
155. Andy Charlwood & David Metcalf, Appendix: Trade Union Numbers, Membership and Density, in TRADE UNIONS: EESURGENCE OR DEMISE? 231 fig. A3 (Sue Fernie & David Metcalf eds., 2005);
156. Steven Tolliday & Jonathan Zeitlin, Shop-Floor Bargaining, Contract Unionism and Job Control: An Anglo-American Comparison, in THE AUTOMOBILE INDUSTRY AND ITS WORKERS 99 (Steven Tolliday & Jonathan Zeitlin eds., 1986).
157. On the place of efficiency in the statutory purposes of the NLRA, see Cynthia L. Estlund, Economic Rationality and Union Avoidance: Misunderstanding the National Labor Relations Act, 71 TEX. L. REV. 921, 924 (1993) (observing that the NLRA expressly prohibited discrimination against unionists in spite of the fact that such discrimination tended to reduce labor costs).
158. Edward B. Rock & Michael L. Wachter, The Enforceability of Norms and the Employment Relationship, 144 U. PA. L. REV. 1913, 1920-21 (1996);
159. ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991).
160. ELLICKSON, supra note 103, at 178-79.
161. See id. at 29-120.
162. See id. at 181 ("[D]epartures from conditions of reciprocal power ⋯ are likely to impair the emergence of welfare-maximizing norms.");
163. Eric A. Posner, Law, Economics, and Inefficient Norms, 144 U. PA. L. REV. 1697, 1697, 1727 (1996) ("[H]ighly unequal endowments of group members may be evidence of inefficient norms. The more powerful members may prefer and enforce norms that redistribute wealth to them, even when those norms are inefficient.").
164. ELLICKSON, supra note 103, at 179 n.43;
165. see also Jean Ensminger & Jack Knight, Changing Social Norms: Common Property, Bridewealth, and Clan Exogamy, 38 CURRENT ANTHROPOLOGY 1, 9-12 (1997) (observing that norms tend to serve the interests of relatively powerful groups).
166. See Rock & Wachter, supra note 103, at 1920-21, 1931.
167. See David Brody, Free Labor, Law, and American Trade Unionism, in TERMS OF LABOR: SLAVERY, SERFDOM, and FREE LABOR 213, 238 (Stanley L. Engerman ed., 1999);
168. Charles J. Morris, A Tale of Two Statutes: Discrimination for Union Activity Under the NLRA and RLA, 2 EMP. RTS. & EMP. POLY J. 317, 330 (1998) (analyzing NLRB records).
169. See, e.g., LANCE COMPA, HUMAN RIGHTS WATCH, UNFAIR ADVANTAGE: WORKERS' FREEDOM OF ASSOCIATION IN THE UNITED STATES UNDER INTERNATIONAL HUMAN RIGHTS STANDARDS 19-22 (Cynthia Brown ed., 2000);
170. Craig Becker, Democracy in the Workplace: Union Representation Elections and Federal Labor Law, 77 MINN. L. REV. 495, 557-60, 564-65 (1993).
171. See NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33 (1967);
172. Stone, supra note 6, at 1546.