Document Type

Article

Publication Date

1973

Abstract

Labor law, like most other law in the making, is intensely political at its margins. On certain central themes, such as the right to join a union and freedom of contract, judges and administrators of widely varying outlooks may be able to reach a consensus. But along the frontiers of the law, no such accord can be expected. Conscientious decision-makers will inevitably differ with one another, depending on their diverse social values. They may even differ with their own prior positions, depending on shifts in the political climate. Moreover, if the decision-makers happen to be justices of the United States, Supreme Court, that most institutional of judicial bodies, they cannot help but be differently influenced from time to time by the changing interaction among the Court's changing membership. In the labor field, as elsewhere, a hallmark of the Warren Court was a bold inventiveness, even at the risk of some damage to the original congressional (or constitutional) design. A hallmark of the Burger Court, it becomes increasingly clear, is going to be a resurgence of traditional lawyerly skills and lawyerly cautiousness - even at the risk of some stunting of the growth of creative legal theory. All these characteristics are exhibited in the Supreme Court's labor law decisions of the past year, especially in the three I consider the most significant. Those are NLRB v. Burns International Security Services, Inc., dealing with the obligations of "successor" employers; Chemical & Alkali Workers Local 1 v. Pittsburgh Plate Glass Co., dealing with the scope of mandatory bargaining subjects; and Central Hardware Co. v. NLRB, dealing with the right of a union to solicit employees on company parking lots.


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