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Labor Law
Rutgers University, Newark School of Law
Pope, James Gray

Labor Law Outline
Fall 2015 – Pope
Part I: Foundations of Industrial Relations and Labor Law
I. Slavery and Indentured Servitude
Pope, Bacon’s Rebellion & the Origins of American Labor Law (BB)
The story of American labor law begins w/ Bacon’s rebellion & its aftermath.
As a result of cooperation b/w black & white slaves, to drive a wedge b/w them, in 1661, the VA Assembly passed legislation that punished white slaves for cooperating w/ black slaves.
Planters’ deepening fear of servant rebellion led them to indict & execute those who rebelled.
Between 1663 & Bacon’s Rebellion: a number of servant conspiracies.
Even when freed, blacks were still subject to discrimination.
First Phase of Bacon’s rebellion
The freemen were at odds with Native Americans for their land since the masters owned all the good land (as a result of it being necessary to build on land that you own)
The colonists wanted to march against the Natives & wanted Bacon to lead them.
Bacon waged war on the Natives but has to fight Governor Berkeley first.
Governor took Jamestown on August 3rd when Bacon was on his way to raid the Mamunkey Indians.
Second Phase of Bacon’s Rebellion
Bacon combined laborers across race lines to war against Berkeley & planter allies.
He arrived in Jamestown, dug siege trench, & when Berkley fled back to eastern shore, Bacon seized the town & destroyed it.
Died of dysentery in late October. Ingram took over after him.
The Forging of White Racial Solidarity
VA Assembly framed social order in which the most prosperous black planter was less exalted than the poorest white laborer.
Act X of 1680: white servants could partake of the privileges & responsibilities of master-hood. (i.e. beat black slaves who rebelled, financial awards for anyone who apprehended a slave abroad w/out a certificate, role in slave law enforcement.)
Act XVI of 1691: punished interracial marriage; punished only the white spouse.
1691 law prohibited freeing of slaves unless the master paid for transportation out of the country w/in 6 mo.; free blacks were banned from public places as well.
Key statutes enacted in response to Bacon’s rebellion
Black pass laws
Rewards to whites for enforcing black pass laws
Negros prohibited from defending themselves against Christians (takes self-defense away)
White indentured servants and non-slave owners finally have a law that puts them above black people (slave or free)
Special protections for white workers
The Slave Rebellion in NYC of 1712 (Casebeer)
First collective action of workers that drew a legal response occurred when carters (independent contractors) refused to move material owned by NYC to the wharves; charged w/ criminal contempt, initially discharged from city service, fined, & were reinstated.
Boston massacre à Once elite weakened, more cross race interactions à working class had more solidarity
Art IV, sec 2, cl. 3 (Fugitive Slave Clause)à extends basic part of slave law into northern states (No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due)
Prigg v PA (U.S. 1842)
Purposive reasoning, blowing off the formalist (not formalist), reasoning
Took a broad view of fugitive slave clause (only clause that dealt specifically with labor, erased by 13th amendment)
Expansive view of national power over states rights (but states cant be compelled to enforce the clause)
Slave master’s interest in each moment of the slave’s time outweighs the value of due process protection for blacks
Interests of free black person foes not get discussed at all (even if person has DP rights, all the balance goes the other way)
Post Prigg à Black weren’t even in the working class, and thus were not useful as allies to the white unions (even black people in the north were presumptive slaves)
Slave Revolt of NYC (1712)
On April 6, 1712, 35-70 African slaves & 2 Native American slaves gathered, armed w/ guns, hatchets, and swords, and by blood oath pledged their secrecy and their lives to each other.
The claimed precipitation of their action was the hard usage of them by their masters. Targeted storage building of one master, and set it on fire. They marched in formation, and attacked whites.
70 arrested, 6 committed suicide, 27 prosecuted, 21 convicted, 2 spared; others executed.
Outcome: Strict laws passed prohibiting more than 3 Africans from congregating at any time & creating severe criminal penalties for violence by slaves.
II. Labor Conspiracy & Master and Servant
While the law of slavery governed labor law historically, it wasn’t taught that way at first.
Everyone was a master or someone in the process of becoming a master (apprentice à journeyman à master)
Labor law was very domestic; everything was done in the home.
When production started occurring outside the home, everything was affected. The rise of the market economy created competition.
Shoe industry was huge- southern slave owners needed mass-produced shoes for slaves (& didn’t care about quality); this opened the market- Philadelphia manufacturers began to sell boots in south in competition w/ English boots.
Dependency on export trade grew, making room for inferior workmen.
Permanent class of journeymen, realizing that they would never make it to be masters, formed the Association; only way to advance is together (solidarity)
The members of the Association (journeymen) didn’t want to compete in shoe industry; they just wanted fair rate of pay.
The Association would coerce the workers by using violence, prevent people from scabbing, and refusing to work alongside non-Association members.
Desiring compensation, due to divisions in ranks, workers went on strike.
The legal system during this time was set up so that the companies were paying for prosecution; jury playing extremely democratic role (unlike today).
Prosecution wanted to suppress the strike; its position was that a) the Association violated the cord-wainers’ liberty; b) it was a self-appointed legislature subversive of law; c) it interfered with natural regulation of wages through supply & demand; d) higher wages would mean higher prices; and e) higher wages would block economic growth.
Employers passed resolutions refusing to raise wages; succeeded b/c workers were more dependent on them than they are on work.
Adam Smith – idea of natural tendency; no formal agreements; understands that economic relationship b/w employers and workers is unequal; worker unions can’t stay underground while employers meet privately. 
Marx: theory that labor is the “variable capital” because you can squeeze more profits out by lowering wages (cheaper production input).
The legal controversy was between “aristocracy” &

tion/ American Railway Union (Casebeer)
Despite technological improvements, U.S. manufacturing output grew. Over 6 million immigrants arrived since 1881.
Prosperity and depression were fluctuating.
American Railway Union embodied a style of trade unionism that embraced all grades of workers. Openly opposed the free market economy.
Led by Eugene Debs (Gained 150k members in 1 yr.)
Led 18-day strike against the Great Northern RR, forcing it to pay back 3 wage cuts.
Craft unions in the RR industry, known as “brotherhoods,” had “whites only” rules.
Though Brotherhoods didn’t want members to join the ARU, they did anyway, bringing their racist traditions with them.
Though Debs and others knew that would mean failure, “whites only” rules prevailed.
United Mine Workers- skilled & unskilled (would be easily replaced) are all part of union; not racially exclusive; solidarity; viewed as a challenge to racial norms; considered radical; bring all workers from industry together
Workers began to strike & challenge power of employers.
In New Orleans, 40 unions (sugar / molasses workers) made up of both black & white members went on strike.
Montgomery, The Pullman Boycott & Making of Modern U.S.A. (Casebeer)(began 5/11/1894)
In 1880, Pullman built a Model Town, which flourished w/ its “sleeper car.”
But then in 1893, he reduced work force (5,500 to 3,100) & dropped wages 1/3 w/out reducing rents on his tenements.
Workers formed central strike committee & placed a cordon of 300 men around the plant; by July 3, 150k on strike.
While Debs did not want to strike w/ desperate Pullman workers, ARU voted to strike w/ them & agreed to boycott Pullman cars.
Pullman wants to break the union by putting its sleeper cars on the mail trains.
ARU says they are going to withhold labor/boycott the Pullman cars; so the workers refuse to pull switch when time to switch it.
Then, Pullman started putting cars on all trains; union blocking all mail at this point.
Things got out of control in the streets; federal troops were sent in 3 weeks later after arrests of ARU leadership, national strike collapsed.
Pullman’s strong ally was the General Manager’s Association Strategy (multiple railroad companies). Also it had the president and the federal government on its side.
The government’s coercive authority was growing. It had
a small effective army w/ highly professionalized officer corps and national guard
Cleveland seeks use of injunction and it is granted against RR strikes, and
use of court orders against people who furthered the strike
In 1899, Congress Passed Erdman Act–secured insurance funds of older craft brotherhoods, prohibited dismissal of RR workers for membership in brotherhood, established machinery for arbitration of future disputes.