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Blawg Review #124; Labor Day Special Historical Edition

About this post: Each weekly issue of Blawg Review is made up of article submissions selected from the best recent law blog posts. The blogger that puts together the Blawg Review carnival each week is called the “host.” This week, I have the honor, as I did for the mind-blowing, rockin’ #15.

Contents

Fun and Games (Holiday Fun, Music, and Humor)

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What does Labor Day mean to you?

To me, it means back-to-school time, the last day of summer, last hurrah at the swimming pool, a cookout, and maybe even time to dig some outdoor rock and roll.

Speaking of Labor Day rockin’, before getting serious, let’s watch and listen to a balding, gray-bearded Bob Weir, formerly of the Grateful Dead, play “Turn on Your Lovelight” at an outdoor Labor Day gig (looking quite Establishment in a navy blazer!):

I’m hoping to I will get away from this Blawg Review task long enough to go to the Big Muddy Blues Festival on the St. Louis riverfront, maybe even to see the legendary John Mayall and the Bluesbreakers, a band that launched many a rock and roll career in the sixties (including that of Eric Clapton).

Also having fun:

But see S. COTUS, an anonymous member of the group of federal law clerks and appellate lawyers that write Appellate Law & Practice: “If you are not working on law this weekend, you are not a real lawyer and you hate America. Have a happy Labor Day.”

As always, if you party this weekend, drink responsibly. According to the DC Metro Area Personal Injury Law Blog, there’s a “Labor Day Crackdown on Drunk Drivers.” (Coming soon, anti-drunk-driving cars.)

New Beginnings (Self-Help)

Maybe it’s just the fact that I went to school every fall for 20 years, and then sent kids to school every fall for another 15 (with the end of that not in sight), but I always think of September, rather than January, as the beginning of the year. (Maybe it’s a bit of my semi-dormant Jewish blood too, anticipating the Jewish New Year that I don’t actually celebrate.)

So back-to-school time always seems to me to be a great time for new beginnings, kind of like new-year resolutions. One of mine (besides the usual “I will work out and eat five a day“) is to keep my email deleted or properly foldered on a daily basis (after having spent hours this week pruning an inbox choked with 4500 old emails in order to make Outlook properly functional again!).

Penelope Trunk, at Brazen Careerist, has her own enticing suggestions for change: “Lose ten pounds in two weeks by changing how you work.” Avoid work habits that make you want to eat more junkfood. Makes sense.

Introducing This Week’s Theme
(illustration: Mead composition theme book)

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Back to labor Day, per se. Unless we’re hard-core unionists, we tend not to think much about its original meaning. That’s a shame. Its original purpose of commemorating the role of the ordinary worker in the American economy, as well as U.S. labor history, is a worthy one.

So the theme for this week’s Blawg Review is American labor history. Each history section heading links to background material (often wikipedia.) (The editor has reminded me that Labor Day is celebrated in other countries, including Canada (with the Brit. spelling, Labour Day, of course).

Caveat:I’m using the whole theme book. The richness of the Blawgosphere is overwhelming. Serving as Blawg Review editor for a week drives home to me blogging lawyers’ tremendous intelligence, creativity, variety, and sheer investment of time, and is a task I highly recommend — so volunteer for a turn. . . .

In keeping with the theme I’ve chosen, I’m adding to the many excellent blawger submissions and suggestions from the editor the results of my own painstaking search through my employment-oriented blogroll.


September 1882: First Labor Day Parade (Blawg Review Parade Led by Blawging Celebrities)

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Peter McGuire, leader of the Brotherhood of Carpenters and Joiners, first formally proposes a Labor Day at a meeting of the New York City Central Labor Union on May 18, 1882, saying “Let us have a festive day during which a parade through the streets of the city would permit public tribute to American Industry.”

The following September, more than 10,000 New York workers stage a parade up Broadway to Union Square, in spite of employers’ threats to fire them for it. Twelve years later, Grover Cleveland signs a Labor Day holiday bill, while he is fighting for his political life (RAWBLOG) in the wake of the disastrous Pullman strike.

See also Forbes: The History Of Labor Day.

Note: As my fellow employment law blawger from Canada, Michael Fitzgibbons, of Thoughts from a Management Lawyer, writes, Labour Day began in Canada on April 15, 1872. Echoing my thoughts, Michael says: “[T]his holiday is, today, more associated with fairs, the end of the summer and the start of a new school year. But it is important to reflect on what Labour Day is all about.”

The Blawg Review Labor Day Parade of Celebrities

Parades serve to show strength in numbers, of those marching as well as watching, which should be the case here. They also recognize achievement and leadership by giving deserving public officials and celebrities prominent positions in the procession.

Therefore, leading off our Blawg Review Labor Day parade are some grand old women and men of blawging, whose foresight, creativity, enthusiasm, and strong leadership have done so much to build today’s vigorous and fertile Blawgosphere.

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First, riding high atop the lead float, is the Honorary Grand Marshal and Queen of Blawgers, Denise Howell, credited (or blamed) for originating the term “Blawg.”

Denise is towing no less than 5 smaller floats, one for each of her Blawgs and podcasts:

(1) Bag and Baggage (”Microcontent obsessed since 2001″), where she demonstrates her affinity for cutting-edge conferences, if not parades.

(2) Lawgarithms (another punny name), where her 8/27 link collection includes several on the developing controversy over “unlocking” Apple’s iPhone, allowing its use on networks other than AT&T, intended to be the only choice (are there antitrust as well as IP issues there?)

(3) Between Lawyers, where her latest post joins the chorus of chattering lawyers on this subject with a cheerful and common-sense suggestion for how Nixon Peabody should have handled the fiasco when its embarrassing firm song hit YouTube.

(4) This Week in Law podcast, where a new hour-plus podcast, “Patent Nonsense,” (also with Steve Nipper, Matt Buchanan, and Brad Frazer) has just been posted.

(5) Sound Policy podcast, where her most recent edition is an interview with the current editor of the ABA Journal regarding its revamped website.

(A George digression: this guy I went to college with [see 2nd and 3rd photos from top from those years] briefly wrote for the ABA Journal before becoming the 60-Second Novelist. Consider hiring him for a special occasion — he won’t disappoint!)

Denise is escorted by Guests of Honor Rick Bales and Paul Secunda, whose Workplace Prof Blog “is the Number One Most Popular Law Blog Among Academics, according to Justia,” says Professor Ross Runkel, himself a Labor Day Parade Guest of Honor for his multiple blogs (Ross’ Employment Law Blog, Ross’ Arbitration Blog,) and online newsletter/information products covering various labor and employment topics ( Employment Law 101, Employment Law Memo, Arbitration Law Memo, and NLRB Law Memo).

Joining Denise in her Queen’s Court of long-established blawging women are:

Grand old men of blawging spotted marching along in the parade include:

Many other familiar old-line bloggers are marching along with these folks at the head of the parade, but my poor recall for names precludes their mention. Forgive me my sins of omission.

Of course, while we honor these old-timers, we also recognize that much can be done in a short time to build a successful Blawg, as indicated by the growth of Abovethelaw, which just announced its first birthday (a mere babe), yet pulls down what look like pricey ads and has achieved Technorati rank 3,271. Congrats!

As the blawgosphere continues to evolve, it is interesting to watch how some new blawgs are extremely niche-focused, and often feature extensive original writing, while others, such as ATL, go for a big audience by offering a broad selection of up-to-the minute news in briefer tidbits. (I try to play it both ways, complementing my main posts with more frequent news updates in the center column, and including many employment-related items of interest to a non-lawyer audience).

May 1886: Haymarket Square Riot (Criminal Law)

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This infamous incident of labor-related violence in Chicago begins on May 3, 1886, during a nationwide strike in support of an eight-hour workday. At a rally outside the struck McCormick Harvester Works, police open fire on the crowd and kill four workers.

The next day, over 3,000 attend a rally in Haymarket Square. After several speeches, 180 policemen arrive. As the police captain tells the crowd to “disperse immediately and peaceably,” someone throws a bomb into police ranks, killing eight and wounding sixty-seven. The police immediately attack the crowd, killing several and badly injuring over 200.

Though the bomber is never identified, the state tries and convicts eight men for conspiracy to commit murder, alleging they made speeches and wrote articles that incited and encouraged the bomber. Five men receive the death penalty, three life in prison.

Sadly, though perhaps one of the most extreme, the Haymarket riot is just one of many examples of deadly violence in the bad old days of labor-management relations.

“Returning violence for violence multiplies violence, adding deeper darkness to a night already devoid of stars… Hate cannot drive out hate: only love can do that” (Martin Luther King Jr.).

The criminal law bloggers would have had a field day with the Haymarket case. The criminalization of speech that incited crime, as in the Haymarket case, and even nonverbal conduct that invited it, as in Larry Craig’s potty-stall adventure, is fascinating to me — and potentially threatening to constitutional rights. Are there any parallels between the Haymarket case and the recent Padilla conviction?

This week, we find criminal law bloggers writing about:

1902-1949: States Adopt Workers’ Compensation Laws (Workers’ Comp.)

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The industrial workplace in turn-of-century America is a dangerous place indeed. It takes many horrible accidents, including the shocking 1911 Triangle Shirtwaist Co. fire in New York’s Garment District (headline pictured) to bring about legislative efforts to deal with the problem, including enactment of workers’ compensation laws.

Before workers’ compensation laws, injured workers sue under tort law, with the burden of proving employer negligence, and then surmounting one or more of a trio of oft-successful defenses: assumption of the risk, negligence of a fellow employee (fellow-servant defense), and contributory negligence.

Workers’ compensation laws are enacted to reduce the need for litigation, as well as the need for injured workers to prove that the injuries were the employer’s “fault.” The first state law is passed in Maryland in 1902, and the first law covering federal employees in 1906. By 1949, all states have enacted workers’ compensation.

This week, workers’ compensation lawyers are blogging about:

July 5, 1935: Wagner Act Becomes Law (Negotiation and ADR)

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Signed into law on July 5, 1935, the Wagner Act establishes the National Labor Relations Board, empowered to investigate and decide unfair labor practice charges and conduct union representation elections.

The Wagner Act legalizes the right to strike, prohibits discrimination against employees for engaging in union activities, and requires employers to negotiate with a properly-recognized or certified union.

It declares it “to be the policy of the United States to . . . encourag[e] the practice and procedure of collective bargaining and . . . protect[] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”

In the decades following passage of the Wagner Act, labor strife is increasingly dealt with more peaceably through collective bargaining, mediation, and arbitration.

The modern practice of ADR (arbitration and mediation) in all areas of law owes much to the efforts of pioneering arbitrators and mediators in the collective bargaining arena.

Blogging this week about negotiation and ADR are:

1936-37: GM Sit-Down Strike, Flint, Michigan (Labor Law)

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When this 44-day sit-down strike begins, GM workers in 35 cities in 14 states are already engaged in conventional strikes. The Flint sit-down begins with a refusal to load dies GM is shipping to less-militant plants. The company responds by turning off the heat. On January 11, 1937, police try to stop food delivery, causing a riot injuring 27. “The battle ended with the strikers in complete control of the gates,” says the Detroit News.

A second riot occurs at a Chevrolet plant in Flint, which the union tries to encourage to join the sit-down strike. Five hundred union men enter the plant and begin breaking windows. The National Guard surrounds the 80-acre grounds housing all 12 Chevrolet plants at Flint, with machine guns at strategic approaches. Food delivery is halted, but the Guard never moves to retake the plant. The strikers vow a hunger strike and appeal to the governor.

President Roosevelt asks GM to meet with the union again. Finally, GM signs a landmark agreement with the UAW, giving it bargaining rights in 17 GM plants, and providing 5 percent pay hikes, among other provisions.

Oh sit down
Sit down next to me
Sit down, down, down, down, down
In sympathy

Not sitting down on the job this week, but working hard, are many labor law bloggers:

A big labor law theme lately has been critiquing the NLRB election process, blaming it for the sorry state of the unions, and pushing legislation to “reform” this law, including eliminating the right to a secret ballot election. Never mind that unions win over half the elections, and the law has been essentially unchanged since the unions’ glory days.

Some people think it’s obviously a stupid, undemocratic idea to allow unions to gain exclusive bargaining representative status based on “card checks,” in which employees have to disclose their position in front of union organizers and their peers:

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(Click thumbnail to view larger)

Also strongly against the EFCA bill is the Center for Union Facts, whose blog Labor Pains displays the stunning propaganda piece at left (whether you agree or not, you gotta give ‘em credit for the design!)

1938: Fair Labor Standards Act (FLSA) is Enacted (Blawgers Working Overtime — Potpourri)

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As noted above in connection with the first Labor Day parade, the eight-hour work day had long been a goal of the labor movement. The outrage of child labor had also been a long-festering issue. Now, in the depth of the Depression, wages are stagnating and unemployment soaring, while many of those fortunate enough to be employed are overworked.

President Roosevelt fights a year-long legislative battle over the FLSA, which establishes a national minimum wage, guarantees time and a half for overtime in certain jobs (thus encouraging rather than mandating the 40-hour workweek), and prohibits “oppressive child labor.”

Concerned about the the bill’s length and complexity, Roosevelt asks Secretary of Labor Frances Perkins to boil it down to two pages. Although not making this goal, she cuts it from 40 to 10 pages. (Footnote: Perkins was the first woman ever appointed to the cabinet. She had earlier witnessed the Triangle Shirtwaist Fire, mentioned above, characterizing it as a pivotal event in her life. She kept her maiden name, defending in court her right to do so.)

Over a year after introduction, the bill finally passes, only after what a Labor Department historian describes as Roosevelt and Perkins going “four rounds” with Congress. Roosevelt’s persistent leadership in the face of congressional partisanship is an inspiring example of the kind of leadership we haven’t seen in a while. (As is the effort at conciseness in federal legislative drafting.)

Note: There were many compromises along the way. One deficiency, IMHO, is the failure to inflation-index the minimum wage. The above graph illustrates how its purchasing power has fluctuated wildly. Periodically, legislative time and political capital is wasted as the same old pro- and anti-minimum wage arguments are trotted out. Let’s either get rid of it or fix it, once and for all, and get on to bigger things — like global warming.

They’re the first to come and last to leave, working for that minimum wage

Blogging overtime (but exempt) are these bloggers, who have come in this week with interesting posts on a wide variety of topics:


June 23, 1947: Taft-Hartley Act Passes Over Truman Veto (Law Practice Management)

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This Act amending the Wagner Act expressly adds a series of union unfair labor practices. It also provides for federal court jurisdiction to enforce collective bargaining agreements, leadingto the creation of a federal common law of collective bargaining agreements, which favors arbitration over litigation or strikes as the preferred means of resolving labor disputes.

The Taft-Hartley Act also expressly excludes supervisors from coverage, squarely placing them on the management side and solidifying the adversarial boss vs. worker model of labor relations.

To one degree or another, most lawyers are on the supervisory side of the fence. Management is part of what we do. On the flip side, many of us these days are also our own clerk-typists, performing document preparation work previously done by legal secretaries.

The Blawgosphere is buzzing this week with helpful information relevant to aspects of law practice management, ranging from the top-down management work of a corporate General Counsel supervising outside law firms to the nuts-and-bolts document prep. of a solo:

Employment Discrimination Based on Race, Sex, Color, Religion Banned — Finally (Employment Discrimination Law)

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The bill that beomes the Civil Rights Act of 1964, including prohibitions on employment discrimination, and the creation the Equal Employment Opportunity Commission (EEOC) is proposed by President John F. Kennedy in his civil rights speech of June 11, 1963. It is reported out of the Judiciary Committee in November 1963, but referred to the Rules Committee, whose chairman indicates his intention to keep the bill tied up indefinitely.

Then Kennedy is assassinated. The new president, Lyndon Johnson, utilizes his experience in parliamentary politics, his bully pulpit, and his famous Texan arm-twisting to guide the bill through diificult procedural steps to ultimate passage. He signs it into law on on July 2, 1964, and supposedly says to an aide, “We have lost the South for a generation.”

We have some posts on employment discrimination and related topics.

Back to the Future (Coming Soon?)

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They’re making Deloreans again, in an ultimate back to the future scenario. Anyhow, here are a few future-oriented posts.

Labor may soon have a big ally in the Wite House, per this YouTube video: “Barack Obama Joins the Picket Line”

OMG (OhmyGod) . . . I stayed at the Congress Hotel, site of this picket line, back in November 2005. Always interested in an active labor-managment conflict, I spoke to some of the pickets and told them that if the owner hadn’t changed position in over a year, he wasn’t going to, so they ought to take his best offer and get back to work.

But they wouldn’t listen to me, nooo . . . . They had to keep picketing for another 19 months . . . . And the owner still hasn’t changed position. He&#