Vol. 13 No. 2 (February 2003)
A STRIKE LIKE NO OTHER STRIKE: LAW AND RESISTANCE DURING THE PITTSTON COAL STRIKE OF 1989-1990 by Richard A. Brisbin, Jr. Baltimore: Johns Hopkins University Press, 2002. 350 pp. Hardcover $44.95. ISBN: 0-8018-6901-3.
Reviewed by Julie Novkov, Department of Political Science, University of Oregon. E-mail: firstname.lastname@example.org.
Richard Brisbin’s excellent book sits at the intersection of law, political science, sociology, and history and blends different modes of analysis to tell the story of the 1989-90 Pittston strike and its aftermath. The story is fundamentally about the taming of workers’ visions of resistance by the overarching structure and disciplinary functioning of neoliberal legalism, but Brisbin qualifies his reading carefully. He concludes neither that the law is a comprehensive, repressive system of discipline closing off all room for maneuver nor that the law protects from and provides boundaries to the worst excesses of capitalism. Instead, he argues that law is “not an unqualified good” but that politically engaged workers and their allies could potentially “reshape the legal boundaries that define the status of workers in modern America” (pp. 284, 298).
Why was the Pittston Coal strike so important, and why should labor historians read this book? Using tools from institutionalists and cultural historians, Brisbin situates the strike by placing it in the context of post-New Deal history of labor relations. He narrates the familiar tale of the struggles leading first to the Wagner Act and then to Taft-Hartley and the subsequent accord between large-scale union leaders and big business that prevailed from the 1950s through 1981. He focuses on the UMWA’s role in union-management relations, and describes the interpenetration that law and legalism achieved in these years. As union-management discussions were increasingly mediated formally and informally by legal actors and legal norms, regulation became prevalent and the union’s main function shifted from social and political organizing to formal legalistic bargaining. Brisbin describes the rise of specific conflicts in the coal mines over employers’ responsibilities for aiding miners with black lung disease as well as disabled miners and widows. He also explains the UMWA’s responses to the major ideological shift in governmental policy toward unions in the 1980s, noting the Massey Coal strike of 1984 as a key learning moment for both labor and management. This background was helpful in establishing the specific embeddedness of legalism, though perhaps more detailed than necessary.
Brisbin turns to a direct analysis of the Pittston strike in Chapter Five, about a third of the way into the book. The Massey strike set the stage for the conflict, which took place against the background threat of the MACKAY RADIO doctrine allowing the hiring of permanent replacement workers. In 1987, Pittston withdrew from the main association of coal mining firms, the Bituminous Coal Operators Association, as Massey Coal had done in the early 1980s. The BCOA and the UMWA had developed a negotiating relationship in which final contracts were formed covering all workers and their BCOA employers. By withdrawing from the BCOA, Pittston signaled to its workers and to the UMWA that it would confront the union, and proceeded to do so by refusing to sign a contract with the same provisions as the UMWA-BCOA contract signed in 1988. The main issues of contention in the new negotiations between Pittston and the UMWA were subcontracting, the introduction of irregular work schedules and Sunday shifts, and the drastic limitation of health and pension benefits for retired and disabled miners and their dependents and beneficiaries. Brisbin highlights the meaning of these proposed changes, which undercut traditional practices of masculine bonding in mining work and threatened the unspoken agreement that the company would care for aging and disabled miners and their families after they had given their working years and health to the company.
Brisbin describes the spiral of rising antagonism as Pittston and the UMWA readied for the fight. Each side developed a public campaign and simultaneously worked internally to prepare its members for an extended struggle. Brisbin portrays the preparation and the strike as carefully staged and managed dramas. The UMWA worked hard to energize its core, building opposition to Pittston and ratcheting up miners’ investment in public protest and resistance. He explains how the framework of labor law provided space for the UMWA to escalate by striking while simultaneously limiting the capacity of the miners to reach a satisfactory solution through formal negotiations with Pittston.
For Brisbin, the strike itself was both pageant and morality play, as strikers expressed their unity by picketing in camouflage. He interprets the messages sent by clothing, demeanor, language, and staged activities even as he describes the strike’s increasing intensity as the miners and their families moved from pickets to civil disobedience. The UMWA now found that the open legal space was closing as Pittston turned to the courts for redress. While some prosecutors and judges recused themselves from adjudicating Pittston’s calls for injunctions against mass pickets and sit-downs, other judges began issuing injunctions and massive fines against the UMWA and individual members. As the strike wore on, the UMWA and Pittston sought to embed competing narratives of the conflict. The UMWA emphasized Pittston’s violation of fundamental norms of fairness and justice, portraying the company as thieves who had stolen earned benefits. Pittston increasingly turned to a narrative of violence, terror, and lawlessness, which it pressed publicly and in the courts. The company and the union became entrenched in conflict, as each escalating maneuver galvanized the other side.
Ultimately, some strikers convinced themselves that lawbreaking in the form of damaging vehicles with rocks and tire puncturing devices, blocking roads, and threatening replacement workers and other Pittston employees was not only justified but was the only way to win the struggle. While the UMWA distanced itself from these acts, and many strikers claimed that reports were exaggerated or outright fabricated, the legal system saw this phase as utter defiance of the orderly operation of society. Strikers were held in contempt of court and millions of dollars of fines were imposed against individuals and the UMWA, which was held responsible for these acts. Brisbin sees this as almost an inevitable dynamic, given the law’s coercive operation on only one side of the dispute. Pittston could not be pressured legally to bargain or to cease functioning with replacement workers and thus was difficult to move. Individual strikers could break the law often without being punished and saw lawbreaking as a way to increase the costs for Pittston to an unsustainable level. These postures, however, made agreement on ending the strike almost impossible to reach.
Brisbin argues that ultimately, four factors led to the settlement of the strike: both sides’ recognition that the costs were mounting to an unsustainable level, the perception on both sides that victory was not assured, the recognition that the struggle could go on for longer than initially anticipated, and the intervention of federal executive authority. The settlement, however, took place within a legal frame, which stripped down the social, performative, and political aspects of the struggle. The final settlement continued to provide benefits to retired and disabled miners and their widows and provided for health benefits. It allowed Pittston to subcontract, albeit with limits, and provided for Sunday work and somewhat more irregular work schedules. Pittston also agreed to join a motion asking judges to waive the fines levied against the UMWA for contempt. As Brisbin notes, the settlement’s confinement within cognizable issues of labor law precluded any consideration of the embedded significance of resistance to irregular shifts and Sunday work. The final chapter of the legal struggle was the UMWA’s fight against the fines, which some judges refused to waive. After going to the US Supreme Court, the UMWA achieved victory in UMWA v. BAGWELL in 1994, but within a restricted legalistic framework. The issue, rather than being the substance of the struggle, was whether the fines had been imposed improperly through findings of civil contempt when they should have been imposed through the criminal contempt process.
Brisbin tells this story through discursive analysis and a close reading of the performative aspects of the strike and its opposition. Some of his information comes from legal documents and transcripts and newspaper accounts and photographs, but he also interviewed many of the men and women who were out on the picket lines daily. These interviews reveal how the strikers told the story of their battle to themselves and each other. The variety of information Brisbin uses enables him to weave a dense and multilayered narrative that shows how the strikers adopted and resisted legal frames.
In addition to telling the story of the strike and situating it in a critical moment of the history of labor relations, Brisbin investigates the real meaning of law to individuals engaged directly with it. His analysis highlights the ways that the law shaped the conflict both by defining the space in which and terms on which it was to take place and by providing background norms that shaped the arguments that both sides made. The overt efforts of both sides to place their opponents outside of the law significantly limited earlier possibilities for settlement.
For the strikers, though, the law had an additional coercive impact as well as a liberatory element. Because of the structure of the post-1950 accord between labor and capital, once the strike had begun, the law could do very little to bring Pittston back to the table (e.g., p. 232). The structure of labor relations dictated that the strike be centered on claims of unfair labor practices and strictly bounded the scope of permissible activity. The strikers saw the actions of particular judges who imposed large fines and injunctions as unjust, but did not as frequently recognize the ways that the deck itself was stacked against them. Ultimately, many were frustrated by the resolution of the strike and the UMWA’s turn to legalism, but their frustrations seemed to be directed more at Pittston, individual judges, and the UMWA than at the system itself.
One area Brisbin notes but could have addressed more explicitly is the gap between the strikers’ background beliefs about justice and the law writ large. He does identify a coordinated campaign on the part of the UMWA to encourage strikers to frame Pittston’s actions as illegal, but much of the material he presents hints at an underlying conception of justice countering both the formal structure of the law of labor relations and judges’ applications of federal and state laws. Many strikers actively resisted the labels of lawlessness, violence, and terror, framing their acts as retributive justice. In this view, Pittston’s corporate managers, not they, were guilty of violating an unspoken contract with them and with the state.
Another subject which Brisbin could have developed more was the extent to which the legal actors were constrained both politically and legally. He notes that some prosecutors and judges basically refused to participate in suppressing the strike; other judges actively and enthusiastically punished the strikers. What political factors may have influenced these decisions, and to what extent were the findings of contempt completely discretionary?
Nonetheless, Brisbin’s real genius is in portraying the significance of the strike in all its ambiguity. The US Supreme Court’s ruling in BAGWELL mandating that the question of quelling union resistance be appropriately handled through criminal rather than civil contempt is a major protection for strikers. Cynics might note that well-heeled corporations can always hire legal talent to frame strikers’ acts as violent and unlawful. Still, forcing such cases to be heard by juries both insulates strikers from neoliberal judges’ free exercise of discretion and opens up space for the radical identification of the jury with workers and their underlying conceptions of justice and fair contract. On the other hand, Brisbin is utterly convincing in his conclusion that the miners were in the end reduced to Arendtian animals laborans who worked only for sustenance rather than for the joy of creation and integration into a community.
All in all, A STRIKE LIKE NO OTHER STRIKE is a fine contribution to legal studies and labor history. It is a compelling read and is likely to stay with the reader long after the book is finished. Brisbin is to be congratulated for the care and compassion with which he has told this important story.
NLRB v. MACKAY RADIO & TELEGRAPH CO., 304 US 333 (1938).
UMWA v. BAGWELL, 512 US 821 (1994).
Copyright 2003 by the author, Julie Novkov.
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