By James B. Atleson
Well-written, informative felony scholarship on hard work legislation
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Extra resources for Values and assumptions in American labor law
9 I am less interested in the precise boundaries of the obligation to bargain, the focus of most of the writing in the area, than I am in the source of and reasons for the strongly held belief that boundaries must exist. 10 These instances of doctrinal development suggest a hidden set of values and assumptions varying from the received wisdom. It is then necessary to discover and determine the nature of these premises. One of the most crucial assumptions that seems to underlie legal decision making is that continuity of production must be maintained, tempered only when statutory language clearly protects employee interference.
Atleson Page iv Copyright © 1983 by The University of Massachusetts Press All rights reserved Printed in the United States of America Third printing A portion of chapter seven has previously appeared in the New York University Journal of Law and Social Policy 11, no. 1(1983). Library of Congress Cataloging in Publication Data Atleson, James B. Values and assumptions in American labor law. Includes index. Title. 3041 Page v To Carol, Michael, and Jonathan Page vii CONTENTS Preface ix Introduction 1 Part I Collective Action And The National Labor Relations Act 1 The Right to Strike: False Promises and Underlying Premises 19 Doctrinal dilemmas 24 Hypothetical rationales 29 2 The Wagner Act and the New Deal 35 3 Sitdowns, Slowdowns, and the Narrowing of Federal Protection 44 4 The Definition of Employees' Real Interests: The Continuity of Legal Values 67 5 Status Assumptions and the "Common Enterprise" 84 Defining the contours of the employment relationship 87 Employer control over property and workers 91 6 Managerial Control and the Fear of Anarchy 97 Part II Collective Bargaining and Management Control 7 The Scope of Mandatory Bargaining: Seeking the "Core of Managerial Prerogatives" 111 The legal context 115 The "core" revealed 124 Page viii 8 Valuation in Other Guises: Employer Responses to Collective Action 136 9 The Bargaining Enigma: Theories and Realities 143 Managerial fears in the postwar period 146 Theories of management and the scope of bargaining 151 Theories of the labor movement: the Wisconsin School 156 10 The Interest in the Mobility of Capital: The Explicit Use of Underlying Premises 160 11 Conclusion: The Employment Relation and the Premises of Labor Law 171 Notes 181 Table of Cases 234 Index 236 Page ix PREFACE The purpose of this book is to investigate the seeming incoherence of American labor law doctrine.
2 Although this statement was unnecessary for the resolution of the issue facing the Court, the doctrine has survived over forty years despite vigorous scholarly criticism. The result is that although the right to strike means that employees cannot generally be refused reinstatement at the end of a strike and cannot be discharged, they have no right to reinstatement if they have been replaced by strikebreakers. It is important to note at the outset the tone of the above quotation from NLRB v. Mackay Radio & Telegraph Company and the audience to which it is directed.