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How the Supreme Court Totally Screwed America’s Labor Unions


Fyodor Dostoyevsky famously said that you can judge a country by how well it treats its prisoners.  This observation has been amended to apply to other groups:  to how well a country treats its old people, to how well it treats its minorities, to how well it treats its children, to how well it treats its mentally ill, even to how well it treats its pets.  That last one is a bit hard to swallow.  (“Hey, Freedonia must be a great country….they’re really nice to their dogs.”)

Because most of the world’s people are required to work for a living, and because it’s always a temptation to posit universal truths, some of us have suggested amending Dostoyevsky’s observation thusly:  One can judge a country by how well it treats its working people.  And by that standard, the U.S. has a pitiful record.

Because everyone has to work, and because (as Marx noted) there is almost always going to be a surplus of labor (too many people applying for too few jobs), two things are clear:  (1) management is always going to be in the driver’s seat, and (2) workers are forever going to be vulnerable to the inexorable squeeze of a seller’s market.

That’s why the safety net of the minimum wage was established as part of Roosevelt’s New Deal, and that’s why labor unions were invented, to give the working class a modicum of leverage when dealing with management.

Union workers have two forms of leverage:  collectivism (strength in numbers) and striking (refusing to work until given a fair contract).  Anyone can readily see the difference between having a lone worker complain to the company that it’s not right to arbitrarily cut his pay simply because they can, and having four-hundred workers march into company headquarters and complain about the same thing.  Which is why collectivism is so important.

But in June of 1985, the Supreme Court, by a 5-4 vote, agreed with an earlier NLRB decision (Pattern Makers League of North America vs. NLRB) allowing union members to cross their own picket line without fear of being fined or otherwise penalized by the union.  The majority justices in that decision were Burger, Rehnquist, O’Connor, Powel and White.  The minority were Brennan, Marshall, Blackmun and Stevens.

What the Pattern Makers decision did was make scabs legal.  With one stroke of the pen, the Supreme Court shredded the fabric of union solidarity.  American workers have a clear choice; they can work in a union shop, which offers superior wages, benefits and working conditions, or they can take their chances in a non-union shop.  Fewer than 7-percent of private sector businesses are unionized, which means that more than 93-percent are non-union.  Good luck.

But if you do choose to join a union, it’s only fair that you behave as a member.  Union membership is a privilege, not a right.  Again, it was your choice to join, and with fewer than 7-percent of the jobs being union jobs, it’s obvious that you ferreted out a union shop in order to reap the benefits.  Accordingly, if the membership votes to strike (and by law, they must vote on such a measure), then, as a member in good standing, it’s only fair that you honor that vote.

Yet, by virtue of the Pattern Makers ruling, when a union hits the bricks in order to seek an improved contract, this employee—who has heretofore wallowed in those union wages and benefits—can cross the picket line, continue to work and draw a paycheck (while his union brethren languish as pickets), and then, when the strike is settled, and the union succeeds in gaining some hard-fought improvements, can partake of those improved benefits as if nothing happened.  The Supreme Court made it legal.

It’s no wonder the labor movement has lost so much traction.  With anti-union Republicans, the pro-business media, and gutless Democrats all being joined by a faux-libertarian Supreme Court, organized labor is fighting for its life.

David Macaray, an LA playwright and author (“It’s Never Been Easy:  Essays on Modern Labor,” 2nd edition), is a former union rep. He can be reached at 

David Macaray is a playwright and author. His newest book is “Nightshift: 270 Factory Stories.” He can be reached at

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