From Group Rights to Individual Liberties: Post-War Labor Law, Liberalism, and the Waning Of Union Strength

Abstract

In the years following World War II, courts began to develop legal rules that regulated the relationship between unions and the workers they represented. These doctrines - the duty of fair representation and the right of exclusive representation, as well as the regulation of union member freedom of expression and union security arrangements - required courts to balance individual rights with the rights of unions. In the immediate post-war period, the courts sacrificed the rights of union members in order to promote the strength of the unions. By the 1960s, however, the courts had reversed themselves, protecting the rights of individual workers, even if it meant weakening organized labor in the process. This change in the judiciary's attitude was the result of broader changes in post-war intellectual thought. During the 1940s and 1950s, American intellectuals argued that democracy functioned best when government responded to the clash of competing interest groups. By the 1960s, however, thinkers argued that interest groups were unrepresentative and that government could never be truly representative if individuals could not participate directly. This intellectual framework provided the courts with the tools necessary to craft specific labor law rules. By the close of the 1960s, those rules, imbued with hostility towards interest groups and faith in participatory democracy, were profoundly disadvantageous to unions and brought about a weakening of the American labor movement.