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Sophia Z. LeeThe Workplace Constitution from the New Deal to the New Right

Cambridge University Press, 2014

by Peter Christian Aigner on June 3, 2015

Sophia Z. Lee

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Americans believe they have a number of protections on the job, which are common in other democracies (free speech and privacy, defense against capricious firing, etc.). They are wrong. And in her fascinating new book The Workplace Constitution from the New Deal to the New Right (Cambridge University Press, 2014), the legal historian Sophia Z. Lee wants to understand why.

She explores two major campaigns, stretching roughly from the 1920's to the 1980's, to establish constitutional safeguards in the workplace, uncovers their remarkable successes, and ultimate failures. It is a story of unlikely bedfellows: black, pro-union labor activists like C.W. Rice and Charles Houston fighting if not quite alongside then at least parallel to anti-union, right-to-work corporate leaders like Cecil B. DeMille and William T. Harrison for a similar goal to contrary ends.

Lee finds that, contrary to what many think, civil rights groups like the NAACP were actively pursuing employment safeguards in the postwar era, using the "exclusive representation" granted by the New Deal to unions to make creative arguments for "state action" on the basis of the "duty of fair representation." At the same time, conservatives sought to roll back the dramatic expansion of organized labor during the late 1930's and especially World War II (to a third of the non-agricultural workforce) by arguing that "closed shop" rules forced men to join unions and to pay for such things as lobbying.

Initially, the courts rejected these latter petitions, during a time when corporations suffered from its Great Depression reputation. But in the late 1950's, as Congress uncovered corruption in select unions and the civil rights movement steadily grew, businessmen and liberal Republicans had far more success allying themselves with discrimination cases. The Supreme Court, for its part, was caught between not wanting to uphold segregation in labor, or to establish safeguards that would force integration on the entire private sector. Free marketers had nightmares about the racial and economic implications of a workplace Constitution, and unions did, too, for different reasons. With this deadlock, administrative agencies like the National Labor Relations Board and the Federal Communications Commission became fertile arenas for legal expansions.

The result is a tale of absorbing complexity–thankfully, lucidly and beautifully written.

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