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1. On Being Your Own Lawyer

Started by Staughton Lynd, December 01, 2007, 03:16:33 pm

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Staughton Lynd

December 01, 2007, 03:16:33 pm Last Edit: December 01, 2007, 03:23:28 pm by Staughton Lynd
1.  On Being Your Own Lawyer

Marty and Stan

   This little book first appeared in 1978.  A revised edition was published in 1982.

   Two working-class intellectuals, each of whom died in 2001, inspired the original booklet.  Marty Glaberman spent years working for automobile companies in and around Detroit.  He belonged to a radical group associated with the West Indian Marxist intellectual, C.L.R. James.  In 1952 Marty published a pamphlet entitled Punching Out(1).  There he argued that the characteristic achievement of the Congress of Industrial Organizations (CIO) was a collective bargaining agreement containing a no-strike clause.  Inevitably, Marty said, the union shop steward must enforce the contract, including its prohibition of work stoppages and wildcat strikes:  the union steward becomes a cop for the boss.

   During those same years, Stan Weir began his remarkable journey as a sailor, automobile worker, trucker, and longshoreman.  One of his basic ideas was that when human beings labor together they naturally create what Stan called informal work groups.(2)  These associations arise in the workplace and cannot be transferred to a union hall away from the plant.  The informal work group fosters workers' self-activity in the form of group grievances, wildcat work stoppages, and local general strikes.  

   Stan Weir also framed the question to which this booklet sought to respond.  When we go to work we ordinarily leave our constitutional rights as citizens in the glove compartment of the car on the emploer's parking lot.  Is there anything in the law that can help us to enjoy as workers the rights to speak, to associate, and so on, that we have, at least on paper, away from work?  Together with another longshoreman, Robert Miles, Stan formed Singlejack Books, which printed the first two editions of Labor Law for the Rank and Filer.

     The authors of this new edition generally endorse the ideas of our departed comrades, Marty Glaberman and Stan Weir.  Daniel Gross is a member of the Industrial Workers of the World (IWW) and works for Starbucks in New York City.  Staughton Lynd is a retired Legal Services lawyer who since 1996 has advocated for prisoners in Youngstown, Ohio.

On Being Your Own Lawyer

   Basically, this is a do-it-yourself book.  Its goal is to help you deal more effectively with the law:  to protect yourself more effectively when the law is against you, and to get more accomplished when the law is on your side.

   Our point of view is that whenever a problem can be solved without the help of a lawyer, do it.  Besides being expensive the law takes a long time.  And it is written and administered by individuals who for the most part do not understand or sympathize with the experience of working people.

   Lawyers, like doctors, make their profession seem more mysterious than it really is.  They use big words when short words would do just as well.  They encourage workers to feel helpless unless a lawyer is representing them.

   The assumption of this book is that, with a modest orientation, anyone able to read can make a preliminary assessment of a labor law problem.  Dr. Spock takes the same approach to medicine in his famous book on baby care.  He says to the mother or father of young children:  if your child shows symptom A, watch carefully to see if B or C appear as well; if they do, call a doctor; if they don't, you can take care of the child yourself.

   This book views your problems in labor law similarly.  Our aim is not to teach you the law.  It is to teach you how to teach yourself at least the broad outlines of the law, so that you can diagnose a labor law problem, just as you might size up what's wrong with the car engine.

   To know what "the law" is about a problem, you have to know not only the text of the relevant statutes but also how that text has been interpreted by the National Labor Relations Board and the courts.

   If you work in a shop or office with a collective bargaining agreement and a grievance procedure, you have a headstart in understanding this.  

   In using a grievance procedure, you have to know both the contract and decisions interpreting the contract.  To rely on the text of the contract alone, no matter how clear it seems to be, can get you in big trouble.

   Similarly, the law begins with the text of constitutions, statutes, administrative regulations, etc.  But the law is more than these texts.  It is also cases interpreting the texts.

   There is a set of books which can give you a general idea of what the law is about the most common labor law problems.  Some libraries have these books, some don't.

   The Bureau of National Affairs publishes a book called Labor Relations Expediter.  It does not make sense to purchase, because it is in looseleaf form and is constantly updated by the BNA.  If you can find a library that has this book it should be your first port of call when you want to look something up.  It is arranged alphabetically; for instance, "Bargaining Units" comes before "Strikes."  Use the index to try to determine what topic covers the problem you have in mind.

   Every topic in the Expediter has a number, known as a "key number."  The BNA periodically publishes a Cumulative Digest of cases.  You can look in the Digest under the pertinent key number and find short summaries of the important cases decided about that topic since the previous Digest was published.

   Each case summary in the Digest has a citation to the full text of the decision.  The decisions are collected in a series of volumes called the Labor Relations Reference Manual, or LRRM for short.  

   A citation begins with the volume number and ends with the page number on which the decision begins.  Thus, Royal Typewriter Co., 85 LRRM 1501 (1974), tells you to get volume 85 of the Labor Relations Reference Manual and look on page 1501 for a 1974 decision involving the Royal Typewriter Company.  With a little practice you will be able to locate the most recent decisions about any topic that interests you.

   This is also the form used to cite court decisions:  first the volume, then the court, then the page of that volume on which the text of the decision begins, and then the year.  Thus, the case in which one of us sought to prevent U.S. Steel from closing its mills in Youngstown is Local 1330 v. U.S. Steel, 492 F.Supp. 1 (N.D. Ohio 1980).  This translates as volume 492 of the series of volumes entitled Federal Supplement beginning on page 1 decided by the United States District Court for the Northern District of Ohio in 1980.  The case then went to the circuit court of appeals for that part of the country.  There it was affirmed in part and reversed in part, with the citation Local 1330 v. U.S. Steel, 630 F.2d 1264 (6th Cir. 1980).  The National Labor Relations Board has its own series of published decisions, using the abbreviation "NLRB."  By now you should be able to understand the citation Sears, Roebuck & Co., 274 NLRB No. 55 (1985).

   Believe us, when you take a labor law problem to a lawyer who specializes in employment law, the first thing the lawyer does when you leave the office is to take down the Labor Relations Expediter and the most recent Cumulative Digests, go through the process just described, and locate the key federal court or NLRB decisions.

   You may want a lawyer to doublecheck your own research, of course.  And you should definitely consult a lawyer before finally deciding on a strategy involving the possibility of a law suit.  Often a strategy will involve a series of steps, each involving its own deadlines and procedural requirements:  for example, a discharged worker might initially file for unemployment compensation; use the outcome to assess whether to file an employment discrimination claim or an NLRB charge within the six months period applicable to each; and hold in reserve the possibility of a federal law suit.(3)  We believe you will feel far more independent and self-sufficient if you have attempted to arrive at a first approximation of a strategy you want to use for yourself.  

Of Swords and Shields

   Think of law and lawyers as a last resort.

   There is a widespread belief, especially when one is frustrated by grievance procedures or internal union appeals that seem to take forever, that it would go better before a judge.  Don't believe it.  The law takes at least as long.  It is much more expensive.  And lawyers will let you down as often as grievance men, if not more so.

   The best way to think of the law is as a shield, not a sword.  The law is not an especially good way to change things.  But it can give you some real protection as you try to change things in other ways.
     (1)Martin Glaberman, Punching Out & Other Writings, ed. and introduced by Staughton Lynd (Chicago: Charles H. Kerr Publishing Company, 2002).  See also Martin Glaberman, "Workers have to deal with their own reality and that transforms them," in The New Rank and File, ed. Staughton and Alice Lynd (Ithaca: Cornell University Press, 2000).  
     (2)Stan Weir, Singlejack Solidarity, with a foreword by Norm Diamond and an afterword by George Lipsitz (Minneapolis: University of Minnesota Press, 2004).  See also Stan Weir, "The Informal Work Group," in Rank and File: Personal Histories by Working-Class Organizers, ed. Alice and Staughton Lynd (New York: Montly Review Press, 1988), and Stan Weir, "Unions with Leaders who Stay on the Job," in "We Are All Leaders": The Alternative Unionism of the Early 1930s, ed. Staughton Lynd (Urbana: University of Illinois Press, 1996).    
      (3)Another example of a strategy, which one of us employed in trying to organize workers at Starbucks, is to make full use of the opportunity to file unfair labor charges with the National Labor Relations Board while declining to become involved in asking