Document Type

Conference Proceeding

Publication Date



It would not take a confirmed cynic to suggest that the title of this paper amounts to an oxymoron. That soft-hearted but tough-minded commentator, Florian Bartosic, and his collaborator, Gary Minda, came close to putting it in so many words: " [T]he Supreme Court lacks a consistent and coherent theory of labor law" (1982). My own view is somewhat different. First, lack of a consistent judicial philosophy is not all bad; at least it is better than a consistently wrong philosophy. Second, the vacillating theories of the Supreme Court tend to reflect the divergent attitudes of American society toward labor over the years. These are expressed, for example, in the variegated writings of such scholars as Atleson (1983), Bok and Dunlop (1970) , Cox (1960), Northrup (1964), Tomlins (1985), and Wellington (1968), as well as in the quite dissimilar policy pronouncements of Congress in the Wagner (1935) and Taft-Hartley (1947) Acts. Finally, and here I most nearly agree with Bartosic and Minda, the Supreme Court has at times exhibited a profound misconception of the values of organized labor and the lives of ordinary working people, minorities and women in particular. But in fairness, those instances must be balanced against others in which the Court has displayed an almost startling insight into the realities of industrial relationships.

It is not enough for our highest appellate tribunal to reach even right results in individual cases. Principled decision making is essential for the guidance of the lower courts and the administrative agencies. Sometimes that will mean overriding collective or union values, but at least those values deserve to be understood. My aim in this paper is to examine several illustrative decisions to demonstrate what I believe is a distressing confusion about basic principles and values. I shall first look at cases dealing with union-management relations and then at those dealing with employment discrimination and affirmative action.