General Practice, Solo & Small Firm DivisionMagazine
Volume 17, Number 2
LABOR AND EMPLOYMENT LAW
LAW, LABOR, AND THE MAINSTREAM PRESS LABOR DAY COMMENTARIES ON LABOR AND EMPLOYMENT LAW, 1882-1935
BY MICHAEL J. GOLDBERG
Since its founding in 1882, Labor Day has provided daily newspapers throughout the country, and particularly their editorial pages, with an annual opportunity to reflect on not just the Labor Day holiday, but also on workers, their unions, and the state of labor relations generally. The Labor Day editorials, op-ed pieces, political cartoons, and news features of the mainstream press provide a unique window through which to view more than a century of American labor history.
This article takes a look through that window at the history of American labor and employment law from 1882 to 1935, the years before the "modern" period of American labor relations began with the passage of the Wagner Act in 1935.
The legal and policy debates commented on by the Labor Day press, and examined in this article, include those surrounding protective legislation for women and children, employer liability and workers compensation for job related injuries and deaths, legislation to shorten the working day, and the use of labor injunctions against union-led strikes, boycotts, and organizing efforts. The article is based on a survey of 50 years of Labor Day commentary in 16 daily newspapers from major cities across the country.
This study provides a vehicle for testing some of the hypotheses and conclusions of various media critics on the nature of the press's coverage of labor and employment related issues. For example, the mainstream press's general editorial support for the regulation of child labor before the New Deal, including endorsement of a constitutional amendment to overrule Supreme Court decisions hostile to such regulation, lends support to the common observation that the press is more receptive to labor standards legislation than it is to union-organized economic pressure as a means of improving wages and working conditions. Similarly, the press's about-face on the regulation of child labor during the New Deal period, when publishers realized that such regulation could curtail their own extensive use of underage newsboys, supports a conclusion that newspaper editorial policy is often influenced by the fact that newspapers are themselves employers and profit-seeking business enterprises.
On Labor Days over the years, many of the newspapers I surveyed for this study, including some with editorial policies generally unfriendly to labor, were willing to open their pages to the views of organized labor by reporting the substance of Labor Day speeches, publishing interviews with labor leaders or articles written by them, or simply by giving coverage to important labor issues that usually receive scant attention from the press. It is also true, however, that some papers saw Labor Day as an occasion for driving an editorial wedge between workers and the unions-and union officials-who sought to represent them. The stereotyped "fat cat" labor bureaucrat has long been fodder for Labor Day commentary.
Bias in the press's treatment of any issue, of course, can be present in straight news reporting as well as in editorial commentary. Indeed, bias in news stories is of greater concern than bias on the editorial and op-ed pages. Readers expect editorials to present a strong point of view, but they may fail to notice the more subtle bias in news stories. Being less obvious, that bias may have a greater influence on public opinion.
For example, the editorial pages of even the most anti-union newspapers occasionally paid lip service to the rights of workers to join unions, and even strike, so long as union activities were carried out in a peaceful manner. But news stories in those papers could easily promote a negative image of unions by highlighting or exaggerating allegations of union violence, coercion, or intimidation, and by blaming unions for strike violence that might have been initiated by an employer's own plant guards, by the police, or by agent provocateurs.
This is not to deny that unions and their members did sometimes resort to threats and violence to achieve their goals. However, the press frequently exaggerated the extent of that violence, and placed most of the blame for it on organized labor. Those distortions in the press's coverage of strikes-the most "newsworthy" of labor-related topics-helped distort the public's opinion of unions, which in turn made it easier for public officials to use their police powers and injunctions to quell labor unrest in a manner almost always more beneficial to the employer's side of a dispute.
Although this article does not focus on the straight news story, it provides the basis for a new explanation of press bias in the coverage of strikes and collective bargaining, and especially strike-related violence. It explores several explanations for press bias against unions, including the often anti-labor views of papers' corporate owners, pressure from advertisers, and the labor strife many newspapers have experienced themselves. But there is another factor that enabled the often anti-union predilections of the mainstream press to run close to the surface of news coverage of strike-related violence: the dominant role played by the labor injunction in American labor relations in the 50 years before passage of the Norris-LaGuardia Act.
By the 1920s, labor injunctions were obtained in 25 percent of all strikes, and certainly in a higher percentage of strikes when violence was present, threatened, or even merely alleged. Injunction proceedings were not only the subject of news coverage, they were critical sources of news about strikes as well. In those typically ex parte proceedings, the employers' uncontested characterizations of the strikes, and their allegations of union violence-often unsupported even by affidavits-provided the "facts" on which were based not only the labor injunctions issued by the courts, but also the news stories reported in the daily press about the underlying strikes. The impact on labor's public image was enormous.
The impact one-sided injunction proceedings had on news coverage of strikes was further enhanced by the legitimacy that flowed from the judicial findings on which the injunctions were based. Indeed, press reliance on court documents and rulings in its labor coverage could give news reports of strike violence an almost official character. And when it was the state, rather than private employers, that sought injunctions, these "official" accounts of the strikes carried even greater weight. After all, press coverage of labor relations tends to present an image of government "as a neutral arbiter in the struggle between capital and labor, acting on behalf of [a] 'national interest'...best served by getting the workers back into production as soon as possible, regardless of the terms of the settlement."
Compounding the problem was the lack of expertise on the part of the journalists covering these stories. Not only did they frequently lack background in the complexities of labor relations, they could be even more at a loss when those complexities intersected the intricacies of the legal system. Thus, even when newspaper editorials criticized overbroad labor injunctions and condemned judicial infringements of strikers' constitutional rights, as some editorials did during the shopmen's strike, the focus was on the scope and substance of the injunctions, not the questionable procedures and evidence used to obtain them.
The Labor Day commentaries of the mainstream press offer a fascinating glimpse at the role of the media in both reflecting, and shaping, public opinion regarding important issues in American labor history. As this article shows, those commentaries also shed light on the development of American labor and employment law. Union strength may have ebbed and flowed over the last century, but the legal regulation of the relationship between employers and employees, whether in a unionized setting or not, continues to have an enormous impact on the economic, physical, and psychological well-being of this nation. The public's perceptions and opinions about labor and employment law have helped to shape those bodies of law in both the judicial and legislative arenas, and those perceptions and opinions have in turn been shaped by the treatment those issues receive in the mainstream press. Labor Day celebrations since 1882 have provided annual occasions for the public, and the press, to contemplate and comment on important issues in the law of the workplace.
Michael J. Goldberg is a professor at Widener University School of Law.For more Information About the Section of Labor and Employment Law
- This article is an abridged and edited version of one that originally appeared on page 93 of The Labor Lawyer, Summer 1999 (15:1).
- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
- Website: www.abanet.org/labor/home.html/.
- Periodicals: The Labor Lawyer, journal published 3 times per year; Labor and Employment Law, quarterly newsletter.
- Books and Other Recent Publications: 1999 Fair Labor Standards Act; Employment Discrimination Law, 3d ed.; 1998 Supplement to Employment Discrimination Law; Elkouri and Elkouri: How Arbitration Works, 5th ed.; Covenants Not to Compete: A State-by-State Survey, 2d ed.; 1998 Cumulative Supplement to Covenants Not to Compete; The Developing Labor Law: The Board, The Courts, and the National Labor Relations Act, 3d ed.; 1998 Supplement to How To Take a Case Before the NLRB; Equal Employment Law Update, Spring 1998 ed.; Equal Employment Law Update, Summer 1996 ed.; Employee Duty of Loyalty: A State-By-State Survey; 1999 Cumulative Supplement to Employee Duty of Loyalty; The Railway Labor Act; 1998 Supplement to the Railway Labor Act; Employee Benefits Law; 1996 Cumulative Supplement to Employee Benefits Law; Labor Arbitration: A Practical Guide for Advocates; Labor Arbitration: Cases and Materials for Advocates; Labor Arbitrator Development: A Handbook; Occupational Safety and Health Law; 1997 Supplement to OSHA; Trade Secrets: A State-By-State Survey; 1998 Supplement to Trade Secrets: A State-by-State Survey; International Labor and Employment Laws; Discipline and Discharge in Arbitration.