0:00:00.3 S?: The American Ship Building Company, petitioner, versus National Labor Relations Board.

0:00:10.9 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this episode of 5-4, the hosts are talking about American Ship Building Company v. National Labor Relations Board. At issue in this 1965 case was whether the management's decision to temporarily shut down operations and lay off employees in order to pressure the union infringed on the union's federally protected right to strike. The union argued that the maneuver was illegal under the National Labor Relations Act.

0:00:39.8 S?: Well, I think one of the basic purposes of the Act was to equalize the bargaining power of employees and employers. And one of the basic ways in which Congress sought to do that was to safeguard the right to strike. And now what I'd like to show is the very serious consequences that a bargaining lockout has on the right of employees to strike.

0:01:07.9 Leon: The Court responded with a decision that marked the beginning of a steady erosion of union protections in the US. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:23.5 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that are destroying our rights like a middle-aged man in Oakleys destroying a Pride display at Target. I'm Peter, I'm here with Rhiannon.

0:01:37.1 Rhiannon: Hey, you know, the accessories, they got to be tactical, because I'm rolling up in the Target and I'm taking down some babies t-shirts.

0:01:44.7 Peter: That's right. Got to stay frosty. Watch your six. Tactical entry into Target before I knock over a rainbow-colored piece of cardboard.

0:01:56.7 Rhiannon: Yeah, and yell at a 17-year-old employee. You have to have the right gear.

0:02:01.9 Peter: Absolutely. Michael, not with us today. He's at a wedding in Alaska?

0:02:06.1 Rhiannon: Yeah, gallivanting.

0:02:08.5 Peter: Absolute bullshit. Gallivanting around the country. Oh, I'm going to go whale watching and go to a wedding.

0:02:14.4 Rhiannon: Unacceptable. We don't like it.

0:02:16.1 Peter: We don't like it. We don't support it. He will not be paid for this episode. Yeah, we should have brought in a scab.

0:02:26.1 Rhiannon: Speaking of getting paid.

0:02:28.3 Peter: Yeah, speaking of getting paid, we've decided to move our demand that you join our Patreon at patreon.com/fivefourpod up to the top of the episode. We used to put it in the bottom, which we thought was, made us seem a little less grubby, but who cares?

0:02:45.8 Rhiannon: No, I think we just want to let people know that you can find us in different places. If you're not subscribed to the Patreon, then just know that there are other episodes that you're not hearing. So patreon.com/fivefourpod, all spelled out, all of your options for subscribing and getting all of our episodes are at our website. That's fivefourpod.com/support. You can link to the Patreon there. You can also check out subscription options at Apple and Spotify.

0:03:16.7 Peter: Yeah, we got some good shit coming up, episode on the legal landscape of trans rights about to drop in a couple of days.

0:03:23.3 Rhiannon: Yeah, with Erin Reed.

0:03:25.1 Peter: Yeah, good shit. All right. Today's case, American Ship Building v. National Labor Relations Board. This is a case from 1965 about unions and specifically about what employers are allowed to do to break or preempt strikes. American Ship Building Company was engaged in negotiations for a new contract with its unions, and they were at an impasse. And so they used a time-honored strike-thwarting tactic, the lockout. They temporarily shut down operations and laid off employees in some of their locations.

0:04:06.1 Peter: So just to give a little bit of clarity on what exactly a lockout is and how it functions in practice, you can think of a lockout as a reverse strike, right? It's a work stoppage, just like a strike is, but it's being implemented by the employer, which sort of leads to the question of why is this a big deal for the union, especially if they were maybe going to strike anyway. I think the answer to that is a little bit nuanced, but basically when unions strike, they prepare for it. Part of that preparation means timing the strike for when it would be advantageous for the union and a little bit harder on the employer.

0:04:49.3 Peter: Another part of it is that they prepare their workers. Workers will decide whether they want to strike, and that means whether they can financially withstand a strike. A strike for most workers is going to mean that you are not getting paid, and that means that it's a serious decision for any given worker. What lockouts allow employers to do is play that to their advantage. They get to take the choice away from employees. They get to take the choice away from the union and lock them out when the union and the workers are unprepared. So that's sort of the difference. It's at the end of the day very similar in broad strokes, but the function of it is an attack on the union, just like the function of the strike is an economic attack on the employer.

0:05:42.1 Rhiannon: That's right.

0:05:44.0 Peter: And the reason that lockouts are so controversial, even though they are essentially similar to a strike at the end of the day, is because there's this power imbalance between workers and management. Every day of lost wages is super meaningful to a worker who is literally putting food on the table, right? That is almost never the case when we're talking about management who's just missing out on profit. So what a lockout is doing is taking the imbalance of power between management and labor and weaponizing it against the workers. There is no dispute that the only reason they did this was as a bargaining tactic to apply pressure to the union. And so the unions brought an action under the National Labor Relations Act claiming that this was an unfair labor practice. But the Supreme Court, in a unanimous decision, says that it's not.

0:06:44.5 Rhiannon: Oh, super, super fun stuff. Definitely. We should say this is the 1960s, mid-1960s, and just a really good kind of bench post, like marker of the Supreme Court starting a series, a pattern of anti-labor decisions.

0:07:05.8 Peter: So we're doing this case because it is an integral part of the Supreme Court's lengthy effort to return power to employers, to take power away from unions and deliver it to management, which has undoubtedly been a massive contributor to the decline of unions in this country. You know, you have this moment in our country after industrialization where labor and management are consistently at odds and management is taking advantage of the power imbalance, right, the sort of relative power that they have over workers.

0:07:44.0 Peter: The NLRA and similar labor laws get passed in order to correct that imbalance, to deliver some power to workers who did not have a lot of power before and who were, therefore, working for low wages in terrible conditions. This case is one of the most important in a string of Supreme Court cases spanning a half century or more that sort of seek to return power to employers. And I think that it's crucial to understand, given the decline of union power in this country, just how great a role the Supreme Court played.

0:08:30.7 Rhiannon: So there's a lot of background here. I think we really should talk about the NLRA, the National Labor Relations Act, how that was passed, what it protects, right? So that means we're starting kind of early 1900s. The NLRA is the federal law that protects private sector employees' rights to organize into unions, engage in collective bargaining, and basically take collective action, including going on strike. So we're going to talk a little bit later in the episode about the labor practices and kind of the state of labor relations that necessitated the passage of the NLRA. But generally speaking, workers at the turn of the century essentially had no workplace protections. Terms of employment, hours, wages, everything was in the complete control of employers. Companies would force workers to sign yellow-dog contracts, which would prohibit workers from joining unions. These kinds of employer practices make the employee basically helpless, right, in demanding better conditions because you're banned from building that collective power.

0:09:34.9 Rhiannon: So every person would essentially be required to present any grievance they have totally on their own. But particularly after the Great Depression, there was a growing understanding in the country that that set-up, single employee versus company versus management, that set-up was unfair. It's not an equal playing field. This is not balanced negotiation when you have a ban on collective action. Each person having to individually complain or advocate for themselves against the power of an entire company.

0:10:08.6 Rhiannon: So first in 1932, Congress passed the NLGA, that's the Norris-LaGuardia Act, which basically tries to outlaw yellow-dog contracts, but it does so kind of indirectly. The NLGA states that since "the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, it is necessary to have full freedom of association, self-organization, and designation of representative of one's own choosing. And that the worker shall be free from the interference, restraint, or coercion of employers in those activities."

0:10:45.9 Rhiannon: But the NLGA didn't outright ban coercive employer practices. It just said that federal courts couldn't enforce those yellow-dog contracts. So a few years later, in 1935, Congress passed another law. This is the big one, the NLRA, the National Labor Relations Act. There are three significant things the NLRA does. One is that it legally guarantees the right to self-organization for workers. These rights were not legally protected before. That's not a right that's in the Constitution, right? The NLRA is the law that says workers have the right to strike. And it's not just the right to strike. The NLRA guarantees the right to form or join a labor organization. It protects the right to bargain collectively, and it protects the rights of workers to engage in other activities with the purpose of collective bargaining or mutual aid. So that's the first thing the NLRA does, is codify those rights in law.

0:11:45.3 Rhiannon: The second big thing in the NLRA is that it prohibits employers from interfering with any of those rights, right? If an employer interferes with the right to collective bargaining under the NLRA, that's called an unfair labor practice, and that's illegal. Finally, the third thing the NLRA does is it created the NLRB, the National Labor Relations Board, and that's the federal agency that enforces these provisions of the law. This is like the enforcement mechanism of the NLRA. You know, complaints about unfair labor practices go to the NLRB, and the NLRB has a role in deciding whether employers have infringed on those workers' rights in collective bargaining.

0:12:28.4 Peter: I'll dig in a little more to the history of the NLRA and the sort of labor movement in general later, but I do want to point out that in one of the original drafts of the NLRA, lockouts were expressly banned.

0:12:41.6 Rhiannon: That's right.

0:12:43.3 Peter: But business interests freaked out at the language, and there was some wrangling, and they got it struck.

0:12:48.7 Rhiannon: Yeah, that's right. So, moving to this case, the question is whether the following actions that I'm about to describe amount to an unfair labor practice under the NLRA, right? That's what the Court is deciding. So, American Ship Building Company operated four shipyards on the Great Lakes, where the company primarily did ship repair. So, American Ship Building had engaged in collective bargaining with unions before. In fact, eight unions bargained with the company from 1952 until this case, and the unions and the company had agreed to new contracts in that time period five times. Each new contract had been preceded by a strike where union members refused to work for the company until they were met in good faith negotiations and won desired provisions in those new contracts.

0:13:41.6 Rhiannon: So, in May of 1961, the unions notified American Ship Building that they intended to seek a modified contract. The current contract was set to expire on August 1st, so over the course of the summer, the unions met with the company and they specified their demands for the new contract, namely they wanted a 20 cent an hour wage increase and also increased benefits. The company repeatedly said it could not compensate workers any more than it already was. In July, the unions proposed extending the current contract by six months while they continued negotiations, but the company, American Ship Building, rejected the extension proposal because they said that would mean the contract would then expire during the peak business season in the winter.

0:14:29.5 Peter: Right, so just to sort of drill down on what the company is doing here, they're afraid that the contract is going to expire at a time when the union is going to have a lot of leverage.

0:14:42.8 Rhiannon: Exactly.

0:14:43.6 Peter: Because it's peak business season, which means that the company is going to really need the workers to get back to work, which gives them a ton of leverage if they choose to strike. So what the company is doing is trying to preempt that situation by just locking them out now and forcing them into negotiations by essentially trying to starve them out, which is what fucking lockouts are.

0:15:05.5 Rhiannon: Exactly. So the August 1st deadline on the current contract is coming up, and the company is not budging. There's no new contract under which workers will work after August 1st. On July 31st, the night before the contract is set to expire, the union kind of makes a last-ditch effort. They again make their proposal for a wage increase and better benefits, and again, they propose that the current contract be extended. This time they said it could be extended indefinitely, doesn't need to be six months and end in the middle of the busy season, that's fine, as long as when they did reach an agreement for the new contract, the terms of the new contract would be made retroactive to August 1st.

0:15:45.4 Rhiannon: Want to say also that the current contract that they were working under that was set to expire on August 1st, but that they were offering to extend, that contract had a no-strike clause, and the union is offering to extend that contract indefinitely, right? They're saying, we won't strike, we want to keep working, we want to keep negotiating, and once we have new terms in the contract, like that wage increase, then we just want that to count retroactively to when this contract would have expired had we not offered to extend it. That extension proposal on the eve of the expiration was rejected by the company, they made a counter-offer, which the unions then rejected, and so no agreement was reached about a new contract, and the old contract just expired.

0:16:30.7 Rhiannon: So American Ship Building starts to worry, they say about a strike, especially with the upcoming busy season in the wintertime. And so to pressure the workers to reach an agreement and to avoid a strike, they decide to lay everyone off. In labor negotiations and labor law, this is called a lockout, right? Employees are laid off, they're basically fired, they are locked out of their jobs in order to pressure them to reach an agreement and get back to work under the conditions and proposals that the employer makes. So on August 11th, employees of American Ship Building received a notice from the company that said, "because of the labor dispute, which has been unresolved since August 1st, you are laid off until further notice." All but two employees were laid off immediately at two of the shipyards, and another of the shipyards employees were laid off kind of gradually as different projects got completed.

0:17:23.0 Rhiannon: The whole time the company is saying they're afraid the workers are going to strike while they're negotiating, so that's the reason they're locking them out. The unions kept on negotiating with the company over the course of the lockout and in late October, a new two-year contract was agreed upon and workers went back to work the next day. So the unions file a complaint with the NLRB and the board agrees with them that the only reason the company locked out workers was to bring economic pressure in order to come to a quicker settlement on the contract with terms that would be favorable, of course, to the company.

0:18:00.0 Rhiannon: The NLRB said in its decision that, "an employer may not during bargaining negotiations threaten to lock out or lock out employees in aid of its bargaining position. Such conduct infringes upon the collective bargaining rights of employees in violation of the NLRA and amounts to discrimination within the meaning of the NLRA." So American Ship Building appeals this decision by the NLRB through the federal court system up to the Supreme Court. And the question that the Court is deciding is not just is a lockout legal, but is a lockout legal when the sole purpose is for the company to inflict economic pressure on workers to reach a quicker agreement, right.

0:18:42.0 Peter: There used to be a distinction between offensive lockouts and defensive lockouts, and that was sort of like up in the air here, we don't need to get into that. The only real question is, does this qualify as an unfair labor practice under the NLRA, the National Labor Relations Act? And again, like Rhi's saying, everyone in this case agrees that the only reason the company locked the union out is as a weapon in negotiations, to thwart a strike.

0:19:11.4 Rhiannon: Totally.

0:19:12.9 Peter: So the question is whether that's legal, because obviously there are valid reasons to shut down a plant to conduct layoffs. If you want to do those things for purely business reasons, that's, of course, perfectly legal. If you want to shut down operations temporarily or otherwise, for most business reasons, that's going to be perfectly legal. The only question is whether you can do it as a weapon in negotiations in collective bargaining or whether that is an unfair labor practice. So what is the definition of an unfair labor practice? Well, it includes a bunch of things, but for our purposes, it's anything that interferes with or restrains the ability of the union members to exercise their right to strike or their right to collectively bargain generally. So let's boil this case down to what I think is it simplest question: Does this interfere with the right of the workers to strike?

0:20:08.9 Rhiannon: Right. And we should say, maybe... This isn't a decision under the Constitution, these are not constitutional rights, but you can think about them kind of similarly. You have the right to freedom of speech in this country, and so, is a certain government restriction on speech, does that violate your right to freedom of speech? It's the same thing. The NLRA, this piece of legislation from the 1930s, protected, created essentially in the law and protected workers' right to strike. So it's a similar legal question, did American Ship Building commit an unfair labor practice that infringed on these workers' right to strike?

0:20:50.6 Peter: Right. So the Court's response to the question is a little bit weird. They say that lockouts don't interfere with the right to strike, the right to strike is just the right to stop working, but that doesn't mean the employer can't stop the work as well. They expand on this by saying that this is just management using the tools available to them in negotiations, economic pressure by both sides as part of collective bargaining, as part of the negotiation process in the Court's view, and that's an idea that traces back to the turn of the last century. Courts used to hold that lockouts were the equivalent of strikes. Unions can halt work by striking, employers can halt work by locking the union out. So it's sort of like two sides of the same coin, and that basic idea is something you can trace back to the turn of the last century.

0:21:44.9 Peter: Courts used to hold that lockouts were sort of the equivalent of strikes. Unions can halt work by striking, employers can halt work by locking the union out. Two sides of the same coin, right? But like, wait a minute here, right? We have this federal law that protects unions' rights, it doesn't expressly protect the right to a lockout, so the question is, Is this interfering with the right to strike, did the lockout interfere with the unions' right to strike that is contained within the NLRA.

0:22:20.3 Peter: The actual analysis here should be relatively simple. Why did management engage in a lockout? Well, because negotiations were at an impasse, prior impasses had led to strikes, management was trying to avoid the disadvantage they would be at if a future strike took place. So the entire purpose was to thwart a strike, or at the very least, undermined the unions' ability to collectively bargain. So how can the employer engage in a behavior that is designed to undermine a strike and yet not be interfering with the right to strike? It almost feels like the rich and poor alike have the right. It's this sort of cutesy reasoning. It's like, Well, you still have the right to strike. You just can't meaningfully do it anymore.

0:23:15.8 Rhiannon: Yeah, exactly, and we'll talk a little bit later, but this is exactly this kind of obfuscation of a foundational principle of the NLRA, that when workers engage with management, engage with their employers, they're not on a level playing field, that's why the workers have to have these rights protected in collective action and collective bargaining. And so you can't just say that, Well, this other tool that an employer, a company has, that's equivalent to what workers can do, and so that makes it fine, right. It just doesn't fucking make sense.

0:23:50.8 Peter: No. It's a very hollow understanding of what a right is, right. Certainly, if you've taken away their meaningful ability to strike, which you have, then you've interfered with the right to strike. I just don't see any way around that. It just fundamentally doesn't make sense.

0:24:08.8 Rhiannon: Yeah, it doesn't make sense. It's really weird to frame legal rights as something held by people, but also held by businesses, which is what this opinion does. At this time, we're definitely not yet in the modern era of corporate personhood in the law, but this whole opinion has repeated references all the way through to equalizing the rights, like references throughout the opinion to business anxieties, to the worries of the employers, the company was apprehensive of a strike, the company was afraid of a strike, there is reference to the business having to resist unfairness, all of this language, all of these words that they're using, they're talking about a corporation like it's a damn person. The way the opinion reads, it's like the NLRA gave rights to people, and now we need to make sure businesses have equal rights to that. It's completely inverted. That's not how this is supposed to work.

0:25:06.4 Peter: Right. It's very bizarre that interpreting a law that is primarily about giving labor rights and protections, the Court has sort of found a right and protection for employers. And before we move on from the opinion, one point the Court consistently makes is that there is a difference between management doing a lockout as leverage in negotiations versus doing a lockout out of anti-union sentiment. In other words, the Court says companies can't lock employees out just because of anti-union spite, but they could lock employees out in order to apply economic pressure to the workers.

0:25:55.4 Leon: But part of what makes this opinion so awkward is that that's not like a real line you can draw. Management hates unions for economic reasons. You can't say like, Oh, you can't do it because you hate unions, but you can do it to pressure the unions. That just doesn't make sense. Why do companies hate unions? Because of the economics, right. When companies do union-busting tactics, they're doing it for economic reasons, they want more money for themselves. There's no line between anti-union sentiment and the economics of the situation, it's all one thing. But a lot of the opinion is predicated on the idea that this line is real, that you can sort of draw that line very clearly, and I just think that you can't.

0:26:43.3 Rhiannon: Yeah, yeah. A lot of the opinion assumes that the companies are acting in good faith.

0:26:48.2 Peter: Or that good faith even exists in this situation. What's the difference between locking them out because you hate the unions in a spiritual way, and locking them out because you're trying to reduce the leverage of the union in negotiations. It's the same thing, it's just a nonsense line to draw.

0:27:09.7 Rhiannon: Yeah, exactly. We should talk about the concurrences, because they're both kind of fucking weird. I'm going to talk mostly about one of them. Both of these concurrences, one is by Justice Goldberg, one is by Justice White, both of them only agree, like in the narrowest possible sense, with the ultimate disposition of the majority, which is that American Ship Building had not committed an unfair labor practice. But the thing is, I'm going to talk mostly about Justice White's concurrence, because it's clearly angry at the majority, he says that what American Ship Building did was not actually a lockout, he says that lockouts can be a violation of the NLRA, but what the company did in this situation wasn't a lockout, because what they did was lay off employees, according to Justice White, when there was a lack of work.

0:28:07.2 Rhiannon: Essentially, he runs through the facts of the case and he says like what the company actually did was they told their customers that they anticipated a strike. They did that to protect their commercial relationships, customers understandably did not bring their ships to American Ship Building for repair, and so there was no work left. When there was no work left, American Ship Building laid off its employees. All of this activity, just as White says, is not a violation of the NLRA because it didn't, to him, technically discourage a strike or collective bargaining, and that's not an unfair lockout. A true lockout, he says, would be an employer laying off its employees when there is available work to be done. I think this is stupid.

0:28:49.4 Peter: It's a little too cute.

0:28:51.6 Rhiannon: Yeah, exactly.

0:28:52.5 Peter: And it also sort of ignores what we know about the company's motivations and what their admitted motivations were.

0:29:00.4 Rhiannon: Yes, exactly. So it's dumb, but also throughout this concurrence, he's really mad at what the Court does say about lockouts, and it's like, Okay, why didn't you dissent? He says about the Court's interpretation of the NLRA in this decision, he says, "If the court means what it says today, an employer may not only lock out after impasse, but also replace his locked-out employees with temporary help or perhaps permanent replacements and also lock out long before an impasse is reached." And what is this... If the Court means what it says today, of course, they fucking mean what they say. What are you talking about, right?

0:29:39.0 Rhiannon: If this is the result of the holding, is what you're saying, like the result of the holding is that an employer can walk out after impasse, which seems like an unfair labor practice, and then they would also be able to replace their locked-out employees with temporary help or permanent replacements, and they would also be able to lock out long before an impasse is even reached, if you think that's the result of the holding, then you don't agree with the holding, man, like dissent, right. It's very strange.

0:30:07.1 Peter: He's like, You must let them off on this weird technicality. It's bizarre, yeah.

0:30:12.4 Rhiannon: Justice Goldberg, he also sort of narrowly technically agrees with the ruling that American Ship Building had not committed an unfair labor practice, and he just kinda goes through the facts and talks about how he thinks this is purely a business decision, that the lockout, call it a lockout, call it whatever you want, it's completely crystal clear, above board, nowhere near an unfair labor practice.

0:30:37.4 Peter: I wanted to do a little dive into labor history because I think it's relevant to understanding the case and also because it kind of rules. I love labor history.

0:30:48.1 Peter: It's good. You want drama, you want unrest? Go to American labor history, for sure.

0:30:54.4 Peter: Absolutely. So some of the most prominent labor disputes of all time involved lockouts, and I think understanding the role they played in suppressing labor throughout the years, we'll put this case into focus a little bit. The most famous lockout in American history, probably the Homestead Steel dispute in 1892. Homestead Steel was a plant near Pittsburgh belonging to Andrew Carnegie and run by Henry Clay Frick, both notorious crazed union busters. In an effort to break the Iron and Steel Workers union, management there refused negotiations and locked the union out of the plant. Other unions, both within the plant and nearby, struck in response.

0:31:46.6 Peter: Management brings in the Pinkertons, who are the famous strike-breaking private security outfit, to protect scab workers and confront the strikers. The plan was to bring the Pinkertons to the plant in the middle of the night on barges. Word gets out in the town, workers and their families, like women and children, rush to the shores to prevent the Pinkertons from landing. There's gun fire, there are attempts to burn the ships and shit like that. It ends with several people dead and the Pinkertons ultimately surrendering, but the governor, who has ties to Carnegie, sent in the state militia a few days later to secure the plant and ultimately break the strike.

0:32:39.3 Peter: So you could see from the incident A, how powerful labor could be, B, how the state aligns with capital, and C, how much potential there was for violence in labor disputes.

0:32:53.0 Rhiannon: Yeah, not to mention a little paramilitary organization designed to protect business, protect management, protect property.

0:33:00.7 Peter: And by the way, the Pinkertons still exist for some reason I can't possibly fucking fathom. It was very cool killing dozens of them in Red Dead Redemption. A couple of years later in 1894, maybe '95, you get the Pullman Strike, where railroad workers led by Eugene V. Debs shut down many, if not most of the country's railways. This whole era was deeply disconcerting to powerful interests, and part of the response to that was a legal regime that was distinctly anti-union.

0:33:40.2 Rhiannon: Yeah, this was concerning to politicians, this was deeply concerning to justices on the Supreme Court.

0:33:45.8 Rhiannon: Right, this is the gilded age, right. We're dealing with an ascendant and hyper-powerful elite and a massive amount of inequality, almost as much as there is today. So courts are holding that management has the right to lock out unions as a matter of property rights. And strikes, meanwhile, are often being treated as anti-trust violations because the Sherman Anti-Trust Act gets passed in 1890, and sometimes strikes are even treated as criminal conspiracy. Debs himself, of course, famously imprisoned over the Pullman Strike because the federal government claimed that the strike was unlawfully obstructing the mail.

0:34:28.9 Rhiannon: Yeah, and that wouldn't be the last time that Debs went to prison for his labor organizing, it also wouldn't be last time that kind of ridiculous federal law, here, the post office stuff, later on it would be sedition. A ridiculous federal law would be used to convict Debs of activity connected to labor organizing. He also famously ran for president five times. The most votes he got, he won like 6% of the vote one time. The last time he ran for president, he did that in 1920, he was actually in prison at that time, he still got something like a million votes.

0:35:03.7 Peter: Yeah, and Donald Trump's about to do the same thing and get 80 million. How like perfect of an arc for our nation is it that Eugene V. Debs runs for president from prison and loses, and 100 years later, Trump does it and wins. Imagine his strut out of federal prison after he self-pardons. The guards will be like, Sir, anything you need. Sir, we got the muscle relaxant discontinued in 1988 here for you. Unreal.

0:35:45.7 Peter: So the Supreme Court is also in the mix at this time. The Lochner era sees them not just prioritizing corporate rights, but enshrining them in the Constitution. In 1917, there's a case called Hitchman Coal, where the Court upholds yellow-dog contracts, the contracts Rhi mentioned earlier, where you have to agree that you won't join a union if you want a job. And yeah, it's only when the Great Depression hits that the tide of public opinion shifts, because naturally at a time when people are out of work, you see a lot more sympathy for labor, and so you get the Norris-LaGuardia Act, and then a few years later, you get the NLRA.

0:36:25.9 Peter: By the time this case comes around, 30 years after that, maybe the political and social context that brought us here had faded so much that the Court sort of loses the plot. The entire purpose of the labor acts of the 1930s was to accrue power to labor. The NLRA protects the right to strike because labor is at an inherent disadvantage because workers need their wages to survive. So the Court's reasoning that the company's right to lock workers out doesn't interfere with the workers right to strike, isn't just specious, it completely undermines the purpose and function of these laws by manufacturing an equivalence between management and worker power when the whole function of the laws was to correct a pre-existing imbalance.

0:37:20.2 Rhiannon: Exactly, exactly. To the extent that there is a balance, it's because of the NLRA and the way the NLRA works, right. So chipping away at the protections, the provisions of the NLRA, doesn't do anything to support that balance that they're saying is there. And I just want to talk about in the years after this, I said at the beginning of the episode, this case, American Ship Building v. NLRB, is sort of this initial stance, like this line drawn in the sand by the Supreme Court that all of a sudden they're starting to look skeptically at these cases, at union activity and union complaints and allegations of unfair labor practices that are brought under the NLRA.

0:38:06.8 Rhiannon: So the Supreme Court continues the legacy from this case just a few years later, in a case called HK Porter v. NLRB. That case held that the NLRB could no longer force companies to make specific contract provisions during negotiations. So for example, the NLRB could no longer say, Yeah, this labor practice, this negotiation tactic is unfair, we're going to make you offer health insurance. They couldn't do that anymore.

0:38:33.9 Peter: Right. And to put that in perspective, the point of that wasn't just to force companies to agree with what the union wanted, the point of it was that the NLRB would sometimes determine that the employer was not engaging in good faith.

0:38:48.8 Rhiannon: That's right.

0:38:50.0 Peter: And it would make a judgment about that and push the contract forward in order to avoid companies and unions at times from sort of manufacturing an impasse.

0:39:01.5 Rhiannon: Yeah, that's exactly right. And so, since HK Porter, it means that if there's a stalemate in negotiations, the NLRB can only say like, Okay, go back to the negotiating table. It makes the NLRB a sort of like witness to the negotiation process, but they're no longer involved in sort of pushing the negotiations forward. Bringing the Supreme Court jurisprudence forward to the Roberts Court, in Epic Systems v. Lewis, that's a 2017 case, we've done an episode on it, the Roberts Court held that employers can force workers to use individual arbitration to settle their disputes, so there's no right to collective arbitration, no class action lawsuits, if that's what the arbitration agreement and the employment contract says.

0:39:46.7 Rhiannon: Again, the whole heart of the NLRA is protecting collective action. And then in this term, and we will for sure do an episode on this case that just dropped like a week, not even two weeks ago. It's a case called Glacier Northwest v. Teamsters. The Court ruled 8-1 that a company could sue a union for the economic damages the company incurred when the union went on strike. The sole dissenter in that case is Justice Ketanji Brown Jackson. She said: "The right to strike is fundamental to American labor law. Workers are not indentured servants bound to continue laboring until any planned work stoppage would be as painless as possible for their master." So again, solely dissenting on her own here, but a recognition in that dissent that without the power to strike and not be punished for striking, there is not equal power, workers are just effectively indentured servants.

0:40:48.2 Peter: And I want to remind everyone, when we did our KBJ episode, back in the day, we addressed the critiques coming from some casual dipshits, mostly on social media, that she was going to be bad on labor.

0:41:06.6 Rhiannon: That's right. Oh, shit, I forgot that.

0:41:08.8 Peter: And we are never wrong. Never wrong.

0:41:14.6 Rhiannon: Learn, recognize.

0:41:17.7 Peter: Just learn to respect us. Sit down and listen.

0:41:21.5 Rhiannon: Calm, fucking correct when you listen to 5-4, okay? We're right. We're not wrong. Commit it to memory.

0:41:30.6 Peter: That's right. I want to expand on the Court's role in labor decline, 'cause I think if you're a listener, you're probably vaguely familiar at the very least with the fact of the decline of American labor power over the last 60-70 years. American Ship Building, this is in 1965, so you might be clocking it as like right before union membership starts to plummet. I think at the time of this case, we're looking at about a third of the workforce in a union, contracts are being struck more frequently, there are more consistent union elections, etcetera, etcetera, etcetera. Right now, union membership hovers around 10%, maybe a little lower even. There are a ton of reasons for this decline. Probably the foremost is the passage in 1947 of the Taft-Hartley Act, which was designed from bottom to top to limit union power. There were like a wave of post-World War II strikes, and a Republican Congress wants to limit union activity. They get it past Truman's veto, and the law made an assortment of union activity illegal, including certain types of strikes, that's why wildcat strikes, for example, are not legal, and pave the way for right to work laws.

0:42:54.0 Peter: Fun bit of trivia: Also forced union leaders to sign affidavits saying that they weren't communists, so a great piece of legislation. And then also contributing to the decline of labor, I think you also have the sort of rhetorical power of the Cold War, where management was able to associate American labor with like Soviet communism in a way and dissuade people from joining unions and negatively impact the public perception of unions generally.

0:43:27.8 Rhiannon: Right, or saying that being a member of a union is a characteristic of you being a communist.

0:43:32.6 Peter: Right. But the Supreme Court's role in all of this really cannot be overstated, and it predates this case, and it goes into the present day. In 1938, you have NLRB v. Mackay Radio, where the Court allows for employers to hire scabs during strikes. In '56, you have NLRB v. Babcock and Wilcox, which held that employers generally aren't required to give union organizers access to parking lots to talk with employees. In 1965, you have this case, in '70 you have HK Porter, which Rhi, you mentioned, and in like '74, maybe '75, the Court says employers don't have to recognize card check elections, which are union elections were like the majority of employees sign an authorization form, instead they have to go through the formal NLRB selection process.

0:44:27.3 Peter: And that's just through the mid-70s. You get to the Reagan NLRB and things get a lot worse. The last 15 years of Supreme Court decisions have been terrible for labor. So I think it's safe to say that the story of the decline of American labor, it's multifaceted, there are a ton of factors, but you cannot tell that story without the Supreme Court. And we've sort of touched on this, but the Supreme Court functionally oversees the NLRB, right? The NLRB has a panel of folks who make decisions about what the NLRA means, but federal courts have oversight, so if someone wants to challenge it, they can run it into the federal courts and run it up to the Supreme Court, which means it doesn't really matter who's at the NLRB at any given time, Sam Alito is going to be deciding what the interpretation of the NLA is.

0:45:23.6 Rhiannon: Yeah, and note the skepticism, the lack of deference to this agency that's been over the course of decades. We can say now that the modern Court is certainly sort of against the administrative state, doesn't want other agencies to have the deference and discretion to make decisions on their own areas of expertise on their own mandates to them, given by Congress. We can say that certainly is a sort of conservative value in the law now, certainly of the Roberts Court, but we're talking pure American history from the very fucking beginning of the Supreme Court striking down decisions of the NLRB over and over and over again, no matter who is on the Court.

0:46:14.2 Rhiannon: At one point, I wanted to make, just thinking kind of social movements, taking a step back from this case and maybe taking just one small step back from the labor movement in general, this case kind of represents a tool the Supreme Court is able to utilize in breaking social movements. You could maybe characterize it as death by a thousand cuts, but what I'm thinking about is the result of cases like this, which only further kind of silo our different causes.

0:46:52.8 Peter: At a time in the 1960s here, when the Civil Rights Movement is certainly fully under way, when this case comes out, we're a few years from Dr. King explicitly making connections between the racial justice movement and the labor justice movement, making connections between the racial justice movement and the fight against American imperialism around the world. Cases like this cut away at the strength and power of collective action across movements. They're going to do it this way by interpreting the NLRA on labor movement cases, they're going to do it by interpreting the Voting Rights Act the way that they do on racial justice cases. They're going to do it all sorts of ways by interpreting the power of the EPA in the environmental justice movement.

0:47:44.8 Rhiannon: But the Supreme Court in the way that it operates, in the way that it piece by piece cuts away at the power of the collective, the power of a movement, it separates all of us, creates obstacles and separations and rifts in our communities, in our movements, and ultimately we're talking about disempowered people, we're talking about a disempowered collective and the Supreme Court being the most powerful political institution we have.

0:48:15.6 Peter: Yeah, and I want to point out, without taking blame away from the capitalists and management, it's very clear that part of the failure of the labor movement of the early 1900s was its failure to include black labor in its vision. Unions at the turn of the last century were largely racist organizations, they were designed for white men, that's not true of every single one in every single instance, but broadly speaking, that allowed management, allowed capitalists to pit black and white laborers against each other, to use black laborers who were desperate for work as strike-breakers at a time in American history where it wasn't easy for them to get work.

0:49:06.2 Rhiannon: Yeah, unions kind of explicitly at this time anti-black, also anti-immigrant, so divisions between who was "white" back then and immigrant populations, even from Europe, those divisions are sort of emphasized, get deeper from the American labor movement.

0:49:23.8 Peter: You mentioned MLK talking about solidarity across the labor movement. WEB DuBois wrote about this, The Black Man and the Unions, he wrote, in I want to say 1917, 1918. I think you can look at the failure of the labor movement of that era to overcome its obstacles partially as a failure of solidarity, a failure to understand the common struggle and unite together for a common cause. And we're in the new gilded age as we speak, a time of distinct inequality, just like we were back then, and it's also a time when we are seeing light but still renewed, especially among young people, interest in collective bargaining.

0:50:14.5 Peter: We have the writers' strike, we're seeing strikes at the airlines. Over the last couple of years, we've seen Starbucks organized across the country, Amazon organizing has picked up massive steam over the last few years. Media workers generally have been organizing aggressively. And it's crucial, especially at a time where we have conservative interests trying to define politics as us versus them, othering LGBT people, othering people of color, othering women, it's an era that will be at the end of the day, one way or the other, defined by our solidarity with one another, defined by our ability to sort of reach across these artificial divides and stand together and organize and move together for our own collective well-being. There were failures 100 years ago, but we are in a different country now, and I'm relatively optimistic that things will be better this time around.

0:51:24.2 Rhiannon: Yeah. We talked about Debs, Eugene Debs himself made progress on this personally over the course of his life. He started making these connections and calling for solidarity among white and black workers as he ascended as a leader in the labor movement. In 1904. He wrote in the International Socialist Review: "Foolish and vain indeed is the working man who makes the color of his skin the stepping stone to his imaginary superiority." He also says later in that same article: "The man who seeks to arouse prejudice among working men is not their friend. He who advises the white wage worker to look down upon the black wage worker is the enemy of both."

0:52:03.9 Rhiannon: Sidenote, just want to say that the biography of Eugene Debs by Ray Ginger, it's called The Bending Cross, it's really, really good. It's excellent, I highly recommend people read it. But yeah, the American labor movement at large at this time fails to realize and act on that foundational truth that across all of these groups and communities and movements for liberation, that's where the solidarity is, that's where the people power is, that the labor movement is talking about, and so the police hack away at this and divide us, the capitalist business owners divide us, the Supreme Court hacks away at this and divides us, but I think the point is now we know better.

0:52:43.1 Rhiannon: The Supreme Court can continue to hack away at the legal vestiges of labor protections in this country, but we know better, and we know that the power is actually in the collective. Across all of our differences, across all of our communities, the labor movement truly is the movement that unites all of us.

0:53:00.6 Peter: Preach.

0:53:02.6 Rhiannon: So as we wrap up, we know actually of some media friends, unions who have taken some heavy hits just today in media news. Shoutout to the Parcast and Gimlet union.

0:53:13.0 Peter: Yeah, WGA.

0:53:16.5 Rhiannon: Shoutout to WGA and Gannett, who are doing direct action, as we speak. Stay strong, everybody. Keep fighting, thank you so much for the work that you do.

0:53:29.5 Peter: Next week, a premium episode about trans rights. We talked to our friend Erin Reed about the laws being brought to attack trans people across the country and the legal challenges to those laws. Very cool conversation.

0:53:46.8 Rhiannon: So if you're not subscribed, visit fivefourpod.com/support.

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0:54:04.3 Rhiannon: Yeah, follow us on Instagram. And then definitely, I want to remind people, check out our website fivefourpod.com, all spelled out, just like all across the rest of the handles. At our website, we have transcripts of all of our episodes, the whole back catalogue. Again, that's where you can find links to subscribe on Patreon, Apple or Spotify, and then also we have the link to our merch store. Check out our merch store, you can get shirts, stickers, mugs...

0:54:30.9 Peter: Tattoos.

0:54:32.6 Rhiannon: Hoodies, all kinds of stuff, with the phrase "Scalia is dead" on them.

0:54:40.3 Peter: Bye.

0:54:40.4 Rhiannon: Bye.

0:54:40.5 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support, and our researcher is Jonathan deBruin. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

0:55:11.9 Peter: Our producer is asking if we have secured the fivefour handle on Onlyfans. No, that one I think is up for grabs.

0:55:21.0 Rhiannon: We will support and subscribe.

0:55:22.6 Peter: We're going to let it go, I think.

[laughter]