A three year old opinon that caught my eye.

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A three year old opinon that caught my eye.

Post  JoeC (McGruff) on Tue Aug 11, 2009 2:56 pm

Once and a while you come across an opinion where a Judge relies on dicta and comes to a sound conclusion. Such is the case in this opinion handed down where the Judges draws his conclusion from historical text (Colorado Fuel & Iron Company) finds in favor of the striking union and reasons:
[I]n the Ludlow Massacre, the employers asked the government by way of the National Guard to keep the union in line with bullets. [H]ere, the Railroads are asking the government to cripple unions with judicial opinions. This Court will not be a party to such a macabre scene.

BNSF Ry. Co. v. United Transp. Union S.D.Tex.,2006.(462 F.Supp.2d 746)
There have been numerous shifts in the labor climate in this country. During the latter years of the Gilded Age, employees had almost no protection from their employers, and the robber barons prevailed in their pursuit of endless treasure at the expense of their employees. The Ludlow Massacre serves as an example of the devastation brought about by this state of affairs.. A contradiction exists in that while labor itself generally suffered as a result of the mass accumulation of wealth in the hands of a few that occurred during this era in American history, the robber barons are also known for their philanthropy. See, e.g., Matthew Josephson, The Robber Barons 325 (1962) (discussing Rockefeller's “strange and wonderful” philanthropies, and stating that “[a]t times it was difficult to understand the guiding principle which fostered extensive missionary work in China at a moment when the workers of his Colorado Fuel & Iron Company were being shot down or burnt alive in industrial war”); id. at 363 (juxtaposing Carnegie's “philanthropy” in buying and renovating company housing in one area of Pittsburgh while “Painter's Row,” also in Pittsburgh, was “left untouched- with its five hundred people living in ... dark, overcrowded sleeping quarters, ...and no sanitary accommodations worth the name”).
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The Ludlow Massacre is used only as an example of the increasing violence between labor and employers occurring in the late Nineteenth and early Twentieth Centuries.Either the state militia or federal troops intervened and took part in bloody battles on many occasions, including the Coeur d'Alene, Idaho miners strike in 1892, the Pullman Strike in 1894, the Cripple Creek, Colorado miners strike in 1903-04, and the Cabin Creek, West Virginia miners strike in 1912. See generally Joseph G. Raybeck, A History of American Labor (1966).

In 1913, John D. Rockefeller, Jr., was completely unaware of the conditions under which the coal miners who worked at Colorado Fuel and Iron Company, one of his many investments, lived. See H.M. Gitelman, Legacy of the Ludlow Massacre: A Chapter in American Industrial Relations 16 (1988). The coal mine managers, Jesse Welborn and John Osgood, were more concerned with finding ways to remedy the “ ‘unsatisfactory financial returns' ” over which Rockefeller complained than with making sure the coal miners and their families had a decent place to live. See David A. Wolff, Industrializing the Rockies: Growth, Competition, and Turmoil in the Coalfields of Colorado and Wyoming, 1868-1914, at 231 (2003). They also saved money by ignoring state labor laws such as the requirements of pay periods at least twice a month and workdays of no longer than eight-hours. See id. at 232.

Many miners became agitated with their employers' seeming lack of care with regard to their welfare, and, despite Osgood's and Welborn's adamant anti-union stands, joined the union. See id. at 232-33. In 1913, the United Mine Workers Association vice president attempted to meet with the Colorado companies and requested that the governor of Colorado call a conference. The companies refused to meet. On September 23, 1913, over 10,000 workers went on strike. See id. at 234. The miners and their families set up tent colonies nears the mines because they could no longer live in company-owned houses. See id. at 235. Violence between the striking miners and the company mine guards ensued almost immediately. Both sides were armed. In October 1913, at least three battles between miners and company mine guards took place near Ludlow; in one of the battles, at least two people died when a company-owned armored vehicle with attached machine guns fired upon a tent colony. The Colorado governor mobilized the National Guard to help curb the violence. Initially, this approach helped. However, the striking miners soon grew suspicious of the National Guard. There were reports that company guards were joining the militia, and reports that the coal companies were supplementing the militia's salaries. See id. at 236. On April 20, 1914, after a tumultuous night of gunfire following the murder of a mine worker the previous day, one of the National Guard troops set up on a hill above Ludlow, where the militiamen could fire into the tent colony. The strikers ran for cover-away from the colony. Shooting began, and by that evening the colony was on fire. After the battle, the citizens of Colorado were appalled to learn that eleven children and two women, who were hiding in a cellar below a tent, suffocated when the tent above them was consumed by the fire. See id.; see also Joseph G. Raybeck, A History of American Labor 258 (1966) (“Attacks by company guards and state militia upon tent colonies at Holly Grove, Forbes, and Ludlow had horrified the nation.”)..

There is dispute regarding the militia's involvement in the spread of the fire. Some historians report that the troops captured the camp and set it on fire. See Raybeck, supra at 258 (1966); see also Gitelman, supra at 18 (reporting that “the militia overran the colony, looted the tents, and, after dousing them with kerosene, put them to the torch”). Others report that, when the colony began to burn, the militiamen rushed to the scene to save the women and children. See Wolff,
supra at 237 (noting the conflicting reports among historians).
Eventually, the governor of Colorado requested help from the federal government, and President Woodrow Wilson sent in federal troops. The federal troops were successful in ending the violence, and the United Mine Workers Association ended the Colorado strike on December 10, 1914. This horrific episode in labor history cost over 200 lives. See id. At 238. Along with the loss of lives, the episode brought about a sea-change in labor-management relations in the coal-mining industry. See Raybeck, supra at 258 (“The public suddenly ... gave its sympathy unstintingly to unionism. A larger portion of the public now became convinced ... that a reform in industrial conditions was needed.”). The number of coal miners in Colorado who were members of the United Mine Workers Association grew from merely 187 people in 1910 to over 5,000 members in 1917. See Wolff, supra, at 239; see also Raybeck, supra at 259 (“[T]he strikes” in West Virginia and Colorado, culminating with Ludlow, “added some 150,000 miners to the federation's membership rolls.”).

As time moved on, the government came to the aid of the tireless worker. Modern employees are protected by numerous labor laws. E.g. Fair Labor & Standards Act of 1938, 29 U.S.C. §§ 201-219, National Labor Relations Act of 1935, 29 U.S.C. §§ 151-169; Railway Labor Act, 45 U.S.C. §§ 151-188 (passed May 20, 1926). These laws were passed, though, before globalization drastically impacted employment and labor trends throughout the world. The problems workers face have dramatically changed with our changing society, and the techniques companies use to maintain a satisfactory profit margin have necessarily changed, too. Many industries that historically relied on union labor have ceased operating in the United States, and many of the new industries that have evolved are either not conducive to a unionized workforce or have found effective ways of remaining union-free. As a result, unionization has decreased substantially in the past few decades, dropping from 36% in 1953 to 8.2% in 2004. See U.S. Census Bureau, Statistical Abstract of the United States, 2004-2005, at 419 (124th ed.2004).

While unionization has grown substantially weaker due to globalization, it is not dead. There are still viable industries within the U.S. economy in which employees rely on union representation, one of which is the Railroad industry. This Court refuses to sound the death knell to railway unions by taking away their last bargaining chip: the right to legally strike over a major dispute… [I]n the Ludlow Massacre, the employers asked the government by way of the National Guard to keep the union in line with bullets. Here, the Railroads are asking the government to cripple unions with judicial opinions. This Court will not be a party to such a macabre scene.
JoeC (McGruff)
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