How American Workers Lost the Right to Strike, and Other Tales

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Vol: 103, Issue: 3, Page: 518-553

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Pope, James Gray
Unfair labor practices; Labor unions; Industrial relations; NLRB v. Fansteel Metallurgical Corporation; NLRB v. Mackay Radio & Telegraph Co.; National Labor Relations Board; Consolidated Edison Co. v. NLRB; National Labor Relations Act; Lechmere Inc. v. NLRB; Class solidarity; Employer rights; United States Supreme Court; Labor and Employment Law; Supreme Court of the United States
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To paraphrase a veteran labor scholar, if you want to know where the corpses are buried in labor law, look for the "of course" statements in court opinions. By "of course" statements, he meant propositions that are announced as if they were self-evident, requiring no justification. Each year, thousands of law students read such statements in labor law casebooks. And each year, they duly ask themselves - prodded sometimes by the casebook's notes - how these conclusions could be justified in legal terms. But often there seems to be no answer, and the mystery continues. This Essay recounts the origins of five such "of course" statements, each of which has had a devastating impact on the American labor movement.