Lately, I’ve recommitted to the podcast, particularly deep conversations with other doing-the-workers. I was burnt out from doing these on What’s Left? (those informed interviews, usually based on closely reading some new book or walking the guest through an explanation of their day job, always fell to me since they involved actual work). However, as formulaic and ever-so-sloptacular “AI content” becomes more prominent, I’ve realized there’s tremendous value in talking to actual humans about the work they did/still get to do and sharing those conversations…so expect more of that, even if I’ve never been a podcast listener myself (I listen to lectures and audiobooks when I’m commuting).
I’ve also elevated my (traditionally rather meager) production values a fair bit in recent months. For all of you readers, there’s always an article that accompanies the recording (and of course the articles are going to keep coming out, too…we (the royal we) have plenty of content for everyone, content all around!).
Michael C. Duff is a professor of law and director of the Wefel Center for Employment Law at Saint Louis University School of Law. Before law school, he spent fifteen years as a blue-collar airline worker, Teamsters shop steward, and union organizer, most of it at USAir at the Philadelphia International Airport. He studied philosophy at West Chester University while working second shift under a union contract that protected his schedule, then went to Harvard Law School, where he overlapped with Barack Obama, Ted Cruz, and a faculty that included Laurence Tribe and evidence professor Charles Nesson. He spent a decade as a trial attorney at the National Labor Relations Board before moving into academia, first at the University of Wyoming and then SLU. His grandfather was a Harlan County coal miner who died of black lung in his early fifties, and that tragic fact runs through everything he writes. His Substack is here and his SSRN page is here.
His law review article “The Cowboy Code Meets the Smash Mouth Truth: Meditations on Worker Incivility,” published in the West Virginia Law Review, is one of the best things I’ve read on American labor. It’s personal, historical, and confrontational in a way most by-the-Bluebook law review articles rarely are. Over the course of 90 minutes, we talked about growing up between a union mother and a Republican father, the NLRB’s symbolic function, what Jesse Jackson sounded like at his peak, the Flint sit-down strike, why workers don’t organize, Thurman Arnold‘s The Folklore of Capitalism, and what happens when you tell college-educated kids they’ll never be able to buy a house.
On Duff’s Family
Duff’s framework for labor law started before he ever opened a casebook.
“My grandfather died of black lung when I was 10 years old and he was a union coal miner. And I can remember being a kid and thinking to myself, there’s a guy that got up, went to work every day, they put him in the ground until he died. And it was perfectly legal, it was perfectly lawful. I can remember my mom crying.”
“My mom and dad were from diametrically opposed political philosophies. I’d sit at the dining room table when I was like 12 years old and I’d hear them go back and forth with arguments about pro-union, anti-union, liberal, anti-liberal. I think I had heard every labor law argument known to American political discourse by that point.”
On Working the Ramp
Duff worked for USAir as a Teamsters ramp agent while his father, a pro-company Eastern Airlines gate agent, worked inside the same airport.
“I was out on the ramp, a Teamster ramp agent. He was inside working as a non-union airline agent. And he did that right until the point that Eastern Airlines collapsed in the late 1980s.”
On nearly coming to blows with his father over an early retirement buyout:
“His Teamster shop steward son said, old man, we’re going to go out in the backyard now because we’re going to have a fight until you agree to take this early retirement. And man, did we go at it. And do you know, the next year they reneged on what they were promising to the people who stayed on.”
On Jesse Jackson at the Airport, 1989
Eastern Airlines was on the verge of collapse when Jesse Jackson came to speak to the workers at Philadelphia International Airport. Duff was there that day.
“It was the greatest, the most exhilarating labor speech I have ever heard in my life. It was inclusive. It was Rainbow Coalition stuff combined with labor. Whatever he would have told me to do at that moment in time, I probably would have done it. That’s how unbelievably gifted he was as an orator.”
“You could easily have an out-of-body experience when Jesse Jackson was speaking. It was like, I don’t know where I am right now. I don’t know my name. All I know is that this guy is causing some disruptions to what I thought was the force.”
“He flat out knew the kinds of things that people were going through. It wasn’t coming from a high-falutin kind of place. He understood that people were struggling. He spoke directly to experiences that people were having. And he was completely authentic.”
On Attending Harvard Law as a Teamster
“While I was in law school, there was a big UPS strike and I was walking around Harvard’s campus with Teamster regalia, which they had never seen before. Somebody walking around Harvard in Teamster gear.”
“One of the reasons I think I had such fun is I wasn’t there for the same reason as a lot of people. I wasn’t trying to go to a big law firm. I wasn’t trying to clerk for a Supreme Court justice. I was there to learn labor and employment law and to do worker-side labor and employment law.”
On Laurence Tribe and the Grendel’s Den case:
“If you survived being on panel all week, at the end of the week he would take the whole panel, usually four students, to Grendel’s Den and the beer was on him for an hour and a half. He told me once, Duff, if they had known that I would in the future have Teamster law students, I’m not so sure I could have gotten the same deal.”
On the Newt Gingrich Rug and Job Pull
“I was promised a job in the federal government. I was going to go do trial work with HUD. And at really after I had been offered the job and accepted it, the federal government kind of imploded when Newt Gingrich and his Republicans came to power with their Contract With America. Part of what that involved was a withdrawing of job offers that had been made. So I thought I had a job. I’m all of a sudden in my third year at Harvard. Everybody around me has a job. I don’t have a job.”
He ended up at a workers’ comp firm in Maine that “would litigate anything, anywhere” and had a Supreme Court case going before his first anniversary there.
On Running an Election in an Ostrich Processing Facility
At the NLRB, Duff ran union elections in workplaces most people never see.
“I ran an election in southwest Philadelphia in an industrial park kind of place, actually a big food processing area. An ostrich processing facility. And it smelled so bad. I had to be there for two hours running the election. I thought, what a stench, I’m gonna pass out.”
“I didn’t even know such a place existed. I’d probably driven by it many times. And it’s like I’m now in the middle of it, running an election for these folks. I know about a whole side of the city, about work that’s being done, where the food processing is being done, how it’s being done.”
On the NLRB as Symbol
“There’s a whole industry that exists to perpetuate itself. Once you have something called labor law, there are labor lawyers and claimant-side labor lawyers and employer labor lawyers. It’s not hard to come to the conclusion that maybe this is kind of a tempest in a teapot.”
“On the right, labor law is like socialism, communism. It’s always on the verge of making us do things that we don’t want to do. On the other side, the Democrats make the argument that this is a very important, wonderful thing that workers have to struggle very hard to maintain. But the even marginally streetwise person knows that union density was once 17% and now Duff is telling me it’s 5 or 6. And that happened for a reason.”
“You know what labor law actually requires? It requires an employer to bargain in good faith, which basically means show up and have a sincere desire to reach an agreement. But you’re not required to agree to anything. The employer never has to agree.”
On Permanent Replacement vs. Being Fired
“For the schmuck on the street, somebody like me, I’m not going to be able to tell the difference between being permanently replaced and being fired. Technically, if I’m only merely permanently replaced, the next time there’s an opening in my job classification, the employer has to reinstate me prior to hiring somebody from the street. But once I’m out of work — well, most people are lucky if they have 300 bucks to their name.”
On Why Workers Don’t Organize
Private sector union density is 5.9%. Duff’s explanation for why workers have tolerated the erosion goes back to the 1980s.
“The first time I ever encountered the phenomenon of easy money, it worked like this. The response I would get at a dinner table trying to organize workers was, you know what? I can go in, I can get a loan, I can buy a house. Yeah, it’s funny money. Yeah, I’m paying interest rates that are too high. But I can do it, I can survive on credit and the wages I’m getting.”
“If workers really feel like what might happen is they might go to jail or worse — they might throw me into prison and separate me from my kids — and you see things that are happening to some immigrants now, is it really so hard to believe?”
“I think what happens is it’s human nature that if you think there’s even a chance that you might be able to make it, you’ll take that rather than go into a situation where you think you might get hurt.”
“But I think we’re coming to the end of that road. I look at the tumult around me and I think, I really don’t know what’s going to happen when you start telling college-educated kids that if I send my kid to a good school and my kid gets an education, my kid still won’t be able to get a job, still won’t be able to buy a house, still won’t be able to buy a car. Those things pile up enough. And I believe what history has shown us is that something will happen when what’s left of the middle class is threatened.”
On Harlan County and the Kitchen Table
On the law review article’s origin story: Duff’s grandfather was a coal miner in Harlan County, Kentucky in the 1930s — “Bloody Harlan.”
“My mom used to tell this story. He’s going off to the mine, and just as casually as you might pick up your car keys, the family would tip over a kitchen table on its side, and my mom and her six siblings and my grandmother would get behind the table while my grandfather was going out the door. And snipers across the way would shoot at my grandfather. The bullets would ping across the kitchen.”
“I see pictures of my mom’s family and I think these are just unbelievably tough people. It blows my mind when I think of what immigrants in different periods of history had to go through to get here. And then they get here, and then people are — I mean, I could do a whole seminar on nothing but scenes where federal troops killed workers, killed miners. Or the Pinkertons.”
On the Flint Sit-Down Strike and the Real Beginning of Labor Law
“General Motors assembled an arsenal and it’s been said it’s going to shoot workers dead. In Michigan, they released the National Guard, the ICE of its day, and they were going to go to the facility in Flint and mess some people up. Had it not been for the governor of Michigan, [future Supreme Court Justice] Frank Murphy — he said, I did not sign up for this. If he had not stopped the National Guard, there would have been some horrible occurrence.”
“Everything that the workers did in Flint, Michigan is now illegal under American labor law. You can’t sit-down strike like that anymore; it’s trespass. But at the time it was real resistance.”
“The actual beginning of labor law, though, came during World War II. The government decided we are not going to have people going on strike during war. People might say, pshaw, there’s no such thing. You need to read about the French mutinies during World War I where French soldiers walked off the battlefield. These were actually strikes!”
On the Cannabis–UBI Shantytown Theory
“Here’s what they’re gonna do. They’re gonna legalize cannabis and gambling. And if we get enough people taking the pot and betting on everything, maybe they’ll go to the shantytown and be quiet. All I can say to that kind of thing is that it would be inconsistent with what we’ve experienced in our history. If we’re depending on the Silicon Valley disruptors to set the level of survival — what’s the baseline going to be? — they will probably get it wrong because they probably haven’t known a normal person in their own lives.”
On Thurman Arnold and the Folklore of Capitalism
Duff taught for years at the University of Wyoming, where Arnold (a Wyoming native) once served as mayor of Laramie and taught at the law school before going to Yale and then FDR’s Antitrust Division.
“What Arnold said in that book was, look: we have to stop looking at the folklore of what we think capitalism is, and we have to deal with the reality of what’s going on in large organizations, and we have to fix it.”
On What Keeps Him Going
“I have a lot of students that want to do good things. They’re smart, they’re much younger than I am, and they’re serious. And it’s the hope that I have for this country generally.”
“What I tell them all the time is, you’ve got to fix this. It’s my generation that has done a lot of this, and for that generation I apologize. But regardless of who did it, you’re going to have to fix it. It’s going to have to be smart, dedicated people like you. And my job is to give you some tools to try to help you do that.”
