Gorman, Robert A.

English

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Clyde Summers: The Consummate Scholar

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CLYDE SUMMERS: THE CONSUMMATE SCHOLARROBERT A. GORMANtTeaching and scholarship in the field known as Labor Law havefocused upon the right of workers to unionize and the adjustment ofconflict between labor and management through collective bargain-ing. The field has come to embrace principally federal legislationdating back to the 1930s and 1940s, with the basic Supreme Courtdecisions dating from the 1940s and 1950s. The legal scholars whorose to prominence in the 1950s and 1960s contributed seminal andinfluential articles on such subjects as union organizing, strikes andlockouts, bargaining in good faith, the enforcement of labor agree-ments, and the operations of the National Labor Relations Board.Clyde Summers is one of those prominent legal scholars. His firstpublished article, dealing with the NLRB, was written in 1943!But Clyde, characteristically cutting new trails, devoted the bulkof his scholarly energies between 1945 and 1960 to the relationshipbetween the individual worker and his union. He was a pioneer inhis early and comprehensive writings on the state laws governingunion membership, union elections, and union discipline. Thesewritings proved to be enormously influential in shaping the attitudeof courts. So too have been his writings on the Landrum-Griffin Act,which brought these issues of union democracy and internal unionaffairs within the realm of federal law.All of Clyde's articles in this "early" period bear the Summerstrademark: they examine a pressing and complex problem inemployment law, they provide a comprehensive and insightful ana-lytic framework, they are scrupulously fair and exhaustive in theirtreatment of legal materials, and they 'are fueled by a commitment tojust and compassionate treatment for working men and women.Had Clyde's labor law writings ceased in 1960, he would surelybe ranked among the giants who were shaping the field at that time,among them Archibald Cox, Benjamin Aaron, Bernard Meltzer, andHarry Shulman. But the past thirty years have seen Clyde pursue atleast a half-dozen other innovative directions for the study of laborlaw. Surely no one could dispute that Clyde has had no peer in influ-encing such a large number of significant areas within the field.t Kenneth W. Gemmill Professor of Law, University of Pennsylvania(623)624 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:623Clyde's concern for the rights of the individual within the unionhas carried over to his writings on individual rights under the collec-tive bargaining agreement and on the duty of fair representation. Itwas Clyde, for example, who argued more forcefully than anyoneelse in the 1960s and early 1970s that individual workers derivedfrom the collective agreement rights that were directly enforceableby the individual in court actions, whether or not the union was pre-pared to advocate those rights. When the Supreme Court declinedto endorse that view as fully as Clyde would have urged, he pro-ceeded to make a compelling case, in provocative articles between1975 and 1985, that the union-through its duty offair representa-tion-remains obliged to afford protection to a wide variety of indi-vidual contract claims. Clyde's articles on that duty, which subtlyexplore the triangular relationship among the contract, the unionand the employee, remain classics on the subject.The same is true of Clyde's articles on labor relations in thepublic sector. The 1960s witnessed the rapid extension, to federalemployees and state and local employees, of many of the guaranteesto unionize and bargain that had previously obtained only in the pri-vate sector. This emergence of public-sector labor law was reflectedin scholarly writing in the journals, and in the development of newteaching materials and courses in the law schools. Most of thesewritings and materials focused upon the extent to which public-sec-tor and private-sector labor law were different, in their premises andin the developing legal doctrines. Clyde's writings did more thanexplore these differences. They introduced an original perspectivebased on Clyde's firm grounding in the law of state and local govern-ment. He saw that public-sector labor law could be especially wellunderstood by viewing unionization and collective bargaining as ele-ments in a larger process of decisionmaking in a world of politics andpublic accountability.Even in the more familiar area of private-sector labor law,Clyde's work is distinguished only in part by his masterful treatmentof the governing legal doctrines. Perhaps more important and last-ing has been his emphasis upon labor law as a case study in the oper-ations of legal institutions. Never much below the surface is hispersistent concern with issues of institutional competence and fairprocess, with questions of the respective roles of legislature, admin-istrative agency, and courts in fashioning substantive industrial rela-tions policy. Clyde's innovative and probing casebook-coauthoredwith his Yale colleague Harry Wellington and more recently withCLYDE W. SUMMERSAlan Hyde of Rutgers-persistently forces students to grapple withthese more enduring institutional questions.Another path that Clyde has pursued-not quite alone in theUnited States, but nearly so-is that of comparative labor law. Fornearly thirty years, Clyde has studied and written about Europeanlabor law, particularly the law of Sweden and Germany. These writ-ings have a way of "opening the mind" of the reader to new perspec-tives and alternative solutions for fundamental questions ofemployment law.In this country, for example, we take for granted the doctrine ofexclusive representation, which gives sole bargaining rights to theunion selected by a majority of workers in an appropriate bargainingunit. We also take for granted the sharp division between workplacedecisions in which unions are thought properly to have a voice andthose subjects-typically, such "large" ones as relocations, plantclosings and business terminations-on which management hasexclusive decisionmaking power. Comparative labor law compels usto reexamine these fundamental assumptions and to consider theadaptability of foreign solutions to our own economic, social andpolitical conditions. A particularly striking example is Clyde's workon what is known as co-determination or worker participation inmajor business decisions as practiced in such countries as West Ger-many. Of course, the rapidly growing linkages between the UnitedStates economy and workforce and those of other nations make it allthe more imperative to explore issues of comparative labor law.Clyde's writings-and his coeditorship of the Comparative Labor LawJournal with Janice Bellace of the University of Pennsylvania-havehelped to illuminate our understanding of foreign law and thus ofour own.Yet another area of labor law in which Clyde has been the stan-dard-bearer concerns the non-union worker. As the non-union sec-tor of the United States workforce has grown over the past twentyyears, workers have turned to the courts and to state and federal leg-islatures to seek greater economic benefits as well as protectionsagainst unjust treatment in the workplace. Nearly fifteen years ago,Clyde wrote a classic article on unjust dismissal and proposed theenactment of protective legislation. He convincingly discredited thetheory of employment at will, and used examples from foreign law tohighlight the failure of U.S. law, unique within the industrializedworld, to assure fair treatment to discharged workers. This articlehas also been enormously influential-in the scholarly literature, inthe courts, and even now in the halls of state legislatures. At the1990]626 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:623time, Clyde was almost alone in identifying the ailment and havingthe vision to propose a feasible cure. Since he wrote, there has beenperhaps no single area of the common law that has developed soexplosively-in much the direction that Clyde had urged-as that ofprotection of the non-union worker against wrongful discharge.Over the past half dozen years, Clyde has come to see the needfor the coherent law school curriculum to include courses that dealwith worker's rights in the non-union workplace. Again, Clyde's pio-neering efforts have borne fruit in an important and seminal set ofteaching materials. In late 1989, he along with Matthew Finkin andAlvin Goldman published a new casebook on that subject. Thematerials are challenging and wide-ranging, as were Clyde's earliestwritings nearly fifty years ago!What I have already recounted might have been unearthed byanyone with a scholarly index or a handy research computer. What isperhaps not so widely known is the fact that Clyde has managed toproduce all of this scholarship while at the same time consistentlyand voluntarily teaching a course overload, co-editing the Compara-tive Labor Law Journal, devoting countless hours to our graduateprogram and particularly to LL.M and S.J.D. candidates requiringextensive supervision in their work on labor law topics, contributinghis wisdom to the deliberations of important committees and atfaculty meetings, serving as a highly respected arbitrator, tending thehearth in his country homes, and being always available to yourstruly and others on this faculty as an endlessly patient, fullyinformed, wise and witty colleague. For fifteen years, Clyde hasmade an incalculable contribution to the life of the University ofPennsylvania Law School. I shall close this appreciation by borrow-ing from a recent book that I dedicated to Clyde; I referred to himthere as "Exemplary Scholar, Teacher and Colleague-Whose Prob-ing, Farsighted, Constructive and Compassionate Writings Provide aModel for All in the Field of Labor Law."

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Clyde Summers: The Consummate Scholar

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