I have one final practical lesson from the Labor Law Stories to share this year.  The lesson is from the last two chapters on which my labor law class presented, chapter four, Katherine V.W. Stone's The Steelworkers' Trilogy:  The Evolution of Labor Arbitration and chapter two, Deborah C. Malamud's The Story of Steele v. Louisville & Nashville Railroad:  White Unions, Black Unions, and the Struggle for Racial Justice on the Rails.

I very much enjoyed reading both these chapters and each contains many practical lessons, but I will focus on only one:  the importance of having a long term strategy when  litigating to make a real world impact.* 

The Steelworkers' Trilogy established arbitration as the primary means for resolving workplace disputes in the unionized setting.  This development was a result of the "vision and strategy" of Arthur Goldberg, "then General Counsel for the Congress of Industrial Organization."  Before winning the victories in the Steelworkers' Trilogy, Goldberg and his associates had actually lost a related case, Westinghouse Employees.  But despite the loss, he pushed on with his vision of a rule-bound unionized private sector where arbitrators decided workplace disputes.  He and his associates succeeded in distinguishing Westinghouse and persuading the Supreme Court to partially adopt Goldberg's vision in the Lincoln Mills decision.  He and his associates continued to closely follow the cases coming out of the lower courts. They handpicked the three that are now known as the Steelworkers' Trilogy to appeal to the Supreme Court.  They timed the petitions for certiorari strategically, in a manner most likely to result in a grant. 

Stone explains the significant impact of the Steelworkers' Trilogy.  While Stone notes that the long term effects of the trilogy are not yet clear and there have certainly been some negative results, overall the Steelworkers' Trilogy "opened up a world of informal, accessible, inexpensive tribunals" because "arbitration became a near-universal feature of collective agreements." The Steelworkers' Trilogy "gave unions the clout to enforce just cause clauses and other employee shop floor protections."  Additionally, "[t]he analogy of the workplace to a mini-democracy gave the labor movement a new mantle of respectability in the public mind."

Like Goldberg, Charles Hamilton Houston had a long term litigation strategy.  Malamud explains how Houston took an incremental approach to challenging the racism in the railroad industry, which was enforced by the union that legally represented all of the firemen but was comprised only of white members.  Houston's strategy led the Supreme Court to hold, in the Steele case, that unions owe a duty to represent all members of the bargaining unit in good faith and without discrimination.  With Steele and related cases, Houston proceeded strategically.  Houston did not file suits naming as a party the union representing black firemen that was funding the litigation.  Instead, Houston filed each case as an individual and class action suit because he knew "the Supreme Court had no interest whatsoever in involving the federal courts in inter-union disputes."  And he limited the type of relief he requested in Steele so as not to upset the employer, Louisville and Nashville Railroad Company.   

Prior to winning Steele in front of the Supreme Court, Houston faced losses.   He lost a related case, Teague v. Gulf, Mobile & Northern Railroad Company, in front of the Sixth Circuit on the basis of lack of federal jurisdiction.  127 F.2d 53 (6th Cir. 1942).  In response, he filed the case that would ultimately be heard in front of the Supreme Court in conjunction with Steele, Tunstall, in a different jurisdiction.  Approximately a year after losing Teague, both Tunstall and Steele were lost at the trial court level.  And then both were lost at the appellate level.  Moreover, even after the win in the Supreme Court, there was more work to be done.  In response to the decision and at the urging of the all white union, the railroads adopted a rule that black firemen of a certain seniority level must pass an engineering test or be terminated.  It wasn't until after Houston's death that a federal district court held, in another similar case, that the requirement that the black firemen pass an engineering test or be terminated was invalid.  Mitchell v. Gulf, Mobile & Ohio R.R. Co., 91 F. Supp. 175, 182 (N.D. Ala. 1950), aff'd in relevant part, BFE v. Mitchell, 190 F.2d 308 (5^th Cir. 1951).

The impact of Steele was arguably not as great as that of the Steelworkers' Trilogy.  But, as Malamud states, "for the twenty years between Steele and the passage of the Civil Rights Act of 1964," Steele "stood as the federal government's best and most conspicuous effort to make room for racial minorities in white-dominated unions." 

Moral of the Stories:  When without a crystal ball, a long term strategy increases your chances of success.

While I have not yet read the article, but look forward to doing so, I believe Ellen Dannin's recent article takes this tip to heart and sets out a long term strategy for the litigators representing working people today.

 

*Deborah was the professor who taught me employment law, employment discrimination, and advanced labor law topics in law school, and she has been an excellent mentor.  Also, I had the pleasure of working with Kathy at UCLA.