Workers Before the Court: Conflicts and Labor Justice in the Context of the 1964 Coup d'Etat in Brazil 9783110638844, 9783110634402

Citation preview

Fernando Teixeira da Silva Workers before the Tribunal

Work in Global and Historical Perspective

Edited by Andreas Eckert, Sidney Chalhoub, Mahua Sarkar, Dmitri van den Bersselaar, Christian G. De Vito Work in Global and Historical Perspective is an interdisciplinary series that welcomes scholarship on work/labour that engages a historical perspective in and from any part of the world. The series advocates a definition of work/ labour that is broad, and especially encourages contributions that explore interconnections across political and geographic frontiers, time frames, disciplinary boundaries, as well as conceptual divisions among various forms of commodified work, and between work and ‘non-work’.

Volume 6

Fernando Teixeira da Silva

Workers before the Tribunal Conflicts and the Labor Courts in the Context of the 1964 Coup in Brazil Translated by H. Sabrina Gledhill Reviewed by Michael McDonald Hall

ISBN: 978-3-11-063440-2 e-ISBN (PDF): 978-3-11-063884-4 e-ISBN (ePUB): 978-3-11-063463-1 ISSN: 2509-8861 Library of Congress Control Number: 2018965088 Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.dnb.de. © 2019 Walter de Gruyter GmbH, Berlin/Boston Cover image: Gilberto Pereira, xilogravura, Worlds of Work Exhibition (Exposição Mundos do Trabalho). Collection of the Art Museum of the Federal University of Ceará (Museu de Arte da Universidade Federal do Ceará, MAUC, Fortaleza, CE, 2002 Printing and binding: CPI books GmbH, Leck www.degruyter.com

FOR MY MENTOR, MICHAEL HALL

“Early Indian legal theorists talked disparagingly of what they called matsyanyaya, ‘justice in the world of fish,’ where a big fish can freely devour a small fish. We are warned that avoiding matsyanyaya must be an essential part of justice, and it is crucial to make sure that the ‘justice of fish’ is not allowed to invade the world of human beings. The central recognition here is that the realization of justice in the sense of nyaya [‘justice’ in classical Sanskrit] is not just a matter of judging institutions and rules, but of judging the societies themselves. No matter how proper the established organizations might be, if a big fish could still devour a small fish at will, then that must be a patent violation of human justice as nyaya.” Amartya Sen

“It is sentimental to suppose that…the poor were always losers. It is deferential to suppose that the rich and great might not act as law-breakers and predators.” E. P. Thompson

Acknowledgments This book was developed within the scope of the Thematic Project “Workers in Brazil: Identities, rights and politics (seventeenth to twentieth centuries)”, organized by the Center for Research on the Social History of Culture (CECULTIFCH/UNICAMP) and coordinated by Silvia Hunold Lara under the auspices of the Foundation for Research Support of the State of São Paulo (FAPESP). Thanks to the project’s funding and institutional support, CECULT-IFCH/UNICAMP signed an agreement with the Regional Labor Court of the Second Region, based in the city of São Paulo, through which some 8,000 case files were microfilmed and digitized, dating from 1946 to 1980. If it were not for the microfilms, duly catalogued and archived in the Edgard Leuenroth Archive (AEL-IFCH-UNICAMP), as well as the creation of the detailed database entitled “Disputes: Workers and the Labor Courts,” the production of this book would have been infinitely more difficult, or even impossible. To that end, I had the support of several researchers. My special thanks go out to Samuel Fernando Souza, to whom I attribute the true paternity of this research instrument, and to Flávia Peral, Oliver Dinius, Pedro Bortoto, Renata Xavier, Gabriel Nascimento, Andrei Campanini, Elisa Pomari, Sandra Resende, Caio Guerra, Emiliano de Almeida, Cláudio Basqueira and Patrícia de Rossi. At different times, all were involved in the arduous and persevering work of database design, which took up more than two years of testing, meetings, and a great deal of debate so it could finally begin to be filled. Since 2009, I have received a research productivity grant from the National Council for Scientific and Technological Development (CNPq) through the projects “Labor courts, laws and and rights” (2009 – 2011) and “Labor courts: The limits and possibilities of normative power” (2012– 2014). Both, along with the FAPESP Thematic Project, played a key role in the accomplishment of the research.I was also the recipient of an international scholarship from FAPESP to carry out the research project “Between law and will: Corporatism and voluntarism in labor relations in Brazil and the United States.” I enjoyed the support, generosity and the always very pleasant and stimulating company of Leon Fink, who welcomed me to the History Department of the University of Illinois at Chicago in 2014. Even without his countless bibliographical references, the books he lent me, which I still have not returned, the always pithy and penetrating questions, the excellent research tips, and his careful review of the translation of this book, Michael Hall would still be present in this work. His commitment and acumen in the acquisition of books and documents have made the Library of the Institute of Philosophy and Human Sciences and the Edgard Leuenroth Archive, both at https://doi.org/10.1515/9783110638844-001

X

Acknowledgments

Unicamp, some of the best research institutions in Brazil. I dedicate this book to him. José Sérgio Leite Lopes, Lucília de Almeida Neves Delgado, Maria Stella Bresciani, Robert Slenes, and Silvia Petersen were on the committee before which I defended my professorial thesis, which is the basis for this book. I do not think I have been able to absorb most of their invaluable contributions in this version, but I want them to know that they all continue to inspire me. My friends at CECULT are among my best role models in the field of social history. Our discussions and joint work occupy a special place in this study. Silvia Lara was much more than an attentive and insightful reader. She has been present and active in all stages of the work, from drafting agreements with public institutions through the hiring of scholars, acquisition and reproduction of research sources and reports, to her careful and perceptive revision of some of the texts that gave rise to this book. I worked with Sidney Chalhoub on an almost daily basis during the years leading up to the publication of this book. His friendship and ineffable competence, in addition to his good humor and constant encouragement, made everything much easier. I also owe the publication of this English edition to him, as well as Christian De Vito. My friends Alexandre Fortes, Antonio Negro (Gino), Hélio da Costa and Paulo Fontes can be found in many of these pages. Despite being increasingly condemned to a solo career, we can already say that we are a social history band defying time – not only the chronological time of each individual but also the time that erodes friendships, humor and good stories. Larissa Corrêa tracked down the TRT cases, which was supposed to have been destroyed. This research – as well as other studies that are in progress – was only possible thanks to Larissa’s pioneering spirit, as she presented us with a precious set of documents. Many have followed, read and critiqued earlier versions of parts of this work. Begging forgiveness from anyone I may have forgotten to mention, I am grateful to Alexandre Fortes, Alisson Droppa, Andrei Campanini, Angela de Castro Gomes, Antonio Luigi Negro, Caio Guerra, Cibeli Rizek, Cláudio Batalha, Cliff Welch, Elina Pessanha, Elisa Pomari, Chico de Oliveira, Gabriel Nascimento, Hélio da Costa, Joseli Nunes, Larissa Correa, Leonardo Silva, Ligia Lopes, Magda Biavachi, Marcel van der Linden, Maria Valéria Barbosa, Michael Hall, Murilo Leal, Oliver Dinius, Paulo Fontes, Pedro Bortoto, Robert Slenes, Samuel Souza, Sidney Chalhoub, Silvia Lara and Vinícius de Rezende. Valéria and Gabriel did not ask for this book to be born, but I could not have created it without them. Any problems with the offspring must be directly attributed to its sire.

Contents Glossary

XIII

Foreword

XV

Preface – Leon Fink

XXI

Preface to the English Edition Introduction

XXIII

1

PART I: Labor Courts in Brazil: problems of historiography and research 

Historiography of a “minor tribunal”



Critique of the dualistic obsession: contracts and the law



The Labor Courts and the Magistratura del Lavoro: Comparative Notes 68

17 45

PART II: Normative Powers and Urban and Rural Workers 

Agreements and Judgments: The Labor Courts in the “Long Year of 1963” 103



The Act of Judging: Restrictions and Possibilities



The “Mystique of Strikes” and the “Sovereignty of the Courts” 157



“Class Justice” between “the fields and factory”

Conclusion

227

Sources and Archives Bibliography Index

255

240

237

140

184

Glossary AEL ANL CECULT CGT CLT CMC CNT CNTI CONTAG CONTEC CPDOC CUT DECOESP DET DIEESE DNT DOPS DRT ETR FETAESP FIESP FTIAESP ISER JCJ MP MPT NIRA NRLB NWLB FPN PCB PSB PSD PT PTB SBR SEPT STF TRT TST UND ULTAB UNICAMP

Edgard Leuenroth Archive National Liberating Alliance Center for Research on the Social History of Culture General Workers Command Consolidated Labor Laws/Consolidation of Labor Laws Mixed Conciliation Boards National Labor Council National Confederation of Industrial Workers Confederação Nacional dos Trabalhadores na Agricultura Confederação Nacional dos Trabalhadores em Estabelecimentos de Crédito CONTEC Center for Research and Documentation of Contemporary Brazilian History Central Workers’ Union Federation of Círculos Operários of São Paulo State State Department of Labor Inter-Union Department of Socioeconomic Statistics and Studies National Department of Labor Department of Political and Social Order Regional Labor Office Rural Workers Statute Federation of Rural Workers of São Paulo State Federation of Industries of the State of São Paulo Federation of Food Industry Workers of São Paulo State Institute for Studies of Religion Conciliation and Arbitration Boards Public Prosecutor’s Office Labor Prosecutor’s Office National Industrial Recovery Act National Labor Relations Board National War Labor Board Nationalist Parliamentary Front Brazilian Communist Party; Communist Party of Brazil Brazilian Socialist Party Social Democratic Party Workers Party Brazilian Labor Party Brazilian Rural Society Labor and Social Security Statistics Service Federal Supreme Court Regional Labor Court Superior Labor Court National Democratic Union Union of Small Farmers and Farm Workers of Brazil University of Campinas

https://doi.org/10.1515/9783110638844-002

Foreword José Sergio Leite Lopes (Museu Nacional, Rio de Janeiro)

Originally a professorial thesis defended at University of Campinas (Unicamp),¹ Workers before the Tribunal presents a strong argument: most of the social science and history literature on Brazilian workers either overlooks or undervalues the presence of the Labor Courts in social conflicts in Brazil, positing that judicialization eliminates direct negotiations with employers, thereby reducing the possibilities for collective conceptions of class. The supposition is that the Anglo-Saxon case of “voluntarism” and “liberalism” in labor relations was more favorable to worker mobilization and the organization of authentic trade unions. Also, through a long process that took place from the 1930s to 1960s, workers supposedly fell into the trap of participating in the corporative construction of their own subordination through the inclusion of the official channels available to them in the struggle for their rights. Allegedly lacking any independent policies, the workers linked their fate to the “populist” State that collapsed after the 1964 coup. This book presents a contrary argument. Based on empirical evidence and a substantial line of reasoning, it asserts that the struggle for rights within the institutionality of labor law as it was established in Brazil helped build up a collective identity for workers based on a conflict of interests with employers, which was at the root of the 1964 coup. This argument has been presented by several researchers, for a long time by scholars of social relations in the countryside (for example, Lygia Sigaud, Moacir Palmeira and Leonilde Medeiros, among others) and, more recently, by scholars of urban trade unionism and the Labor Courts (such as Ângela de Castro Gomes, Elina Pessanha, Regina Morel, John French, Maria Celia Paoli and previous works by Fernando Teixeira and his contemporaries at Unicamp, former mentees of Michael Hall, to whom this book is dedicated: Paulo Fontes, Alexandre Fortes, Antônio Negro and Hélio da Costa, authors of the compendium Na Luta por Direitos [In the Struggle for Rights]²). However, the systematic nature of the argument developed here and the strategic character of the construction of the empirical data presented make this book an indispensable source on the

 Thesis of livre-docência, an academic title obtained with a postdoctoral dissertation and other works after the doctorate.  Alexandre Fortes et al. (eds.), Na luta por direitos. Estudos recentes em história social do trabalho (Campinas: Editora da Unicamp, 1999). https://doi.org/10.1515/9783110638844-003

XVI

Foreword

important role of the Labor Courts in the development of the Brazilian working classes. One of the arguments presented here is the strength of the analysis based on the construction of a database of labor cases from the Regional Labor Court (TRT) of the Second Region (in the states of São Paulo, Paraná, Mato Grosso, but with most of the cases concentrated in São Paulo), which were analyzed for the long year that was 1963 (up to April 1964). The cut-off date of one year for the empirical corpus was necessary due to the vast number of cases, so analysis could be conducted within a feasible research project. However, the strategic choice of 1963 gives precision to the argument. In the year of the upsurge in working-class mobilization in the city and the countryside, the unions’ recourse to the labor courts continued with the same intensity, thus serving as a border case that sheds light on other periods and at least casts doubt on the presumed relation between mobilization and a reduction in cases where workers went to court. Here we must highlight the collective efforts of historians from different parts of Brazil in their commitment to the discovery and appropriation of Labor Court archives, their activism in the sense of the conservation of the cases and their use for research, their alliance with officers of the court sympathetic to the cause of preserving the documents and the resulting academic study (in Rio Grande do Sul, Pernambuco, Rio de Janeiro, Campinas etc.). In part two of this book, the author develops his argument in four chapters on the basis of an exhaustive empirical analysis of nearly 500 cases from the Second Region TRT. A balanced approach that combines quantitative analysis with qualitative knowledge of the cases is adopted to understand how workers both mobilized their respective professional-union category and filed appeals to the Labor Courts, with the two actions intricately linked. Coming from a time of unprecedented worker mobilization and politicization, the TRT data shows that there were both a significant number of agreements between employers and workers, expressed through court homologations, and disputes, in which labor judges could use their normative powers. In a time of intense worker mobilization, the workers were able to impose more favorable direct negotiations on employers, but even so, the figures show that the number of disputes was higher than homologations (55 percent compared to 45 percent). Indeed, the workers’ dilemmas and strategies were guided by the rules of a game in which the alternative means of direct negotiation with employers, recourse to the normative intervention of the courts through disputes, and strike action could be used in combination. The research identifies and classifies the claims set out in the corpus of cases, allowing the author to demonstrate that, if the agreements had the advantage of being implemented immediately, especially wage clauses (which was important in a time of high inflation), the disputes covered a broader

Foreword

XVII

range of demands (such as benefits, careers, working conditions and trade union representation). Thus, in negotiations without direct judicial intervention, the range of fulfilled demands was always lower than in disputes settled in court. But if during that period the Labor Courts were beset by the dilemma that arises within its functions – such as its responsibility to the economic policy of controlling inflation and ensuring the health of companies in general, as well as upholding the rights of employees as the weaker parties in contracts – they tended to heed the workers’ demands, albeit not without disagreements among the judges. This area is also analyzed in this study, which evaluates the limits and possibilities of the act of judging. Although the Labor Courts based their rulings on the strict laws regulating the right to strike and thus sought to avoid that form of industrial action, this book demonstrates that there are records of strikes in at least 35 percent of the 268 collective disputes filed over the course of the long year that was 1963. There were also many cases in which rumors and signs of mobilization leading up to a strike put pressure on the employers and courts, and the workers knew how to exploit the loopholes in strike law. Issued by decree nº 9.070 of 1946, a product of the Cold War and drafted after the Estado Novo dictatorship – and, preventively, prior to the presumed liberalizing airs of the Constitution convened in the same year – the historical specificity of that law is discussed in chapter 6. It remains in the vacuum of the non-regulation of the right to strike enshrined in the Constitution of 1946, and the author shows how the restrictions of the decree and mechanics of the attempt to conciliate employers and employees in the Labor Courts practically instigated strikes so disputes could be filed and settled more quickly under pressure from the workers. Thus, he demonstrates a paradox that has gone unnoticed in the specialized literature: a law and courts created to prevent strikes became instigators of that form of industrial action. The events of the long year of 1963, revealing the pattern that came into play between 1946 and 1964 (and which was later resumed when the workers’ unions reorganized during the dictatorship), are a combination of social mobilization and recourse to the court (it is interesting to point out here that, during the major strikes at the Pernambuco sugar mills in 1979 and 1980, the vast majority of workers utilized this same pattern of a combination of mobilization and recourse to courts, through fulfillment of the dictatorship’s even more stringent strike law, to legitimize strikes, given the potential for repression by employers and their security guards). It is no coincidence that the effectiveness of Fernando Teixeira’s demonstration of the combined use of mobilization and recourse to the courts increases dramatically at the boundary between the urban and rural, between industry and agriculture, in chapter 7, which shifts the focus to the countryside. The al-

XVIII

Foreword

most 20-year time lag between the implementation of social and labor laws in the cities and rural areas was erupting in the countryside precisely in 1963, and the long-held dream for peasants and rural workers to achieve the rights of urban workers seemed to be within their grasp. If the enactment of the Consolidated Labor Laws (CLT) in 1943 during the Estado Novo occurred long before the mobilizations of the workers’ movement of the previous decades that sowed the seeds of social rights, which fostered the myth that the CLT was granted by the State, the formalization of the Rural Workers’ Statute in 1963 took place alongside the culmination of the struggles of peasants and rural workers that were going on at that time, begun under a democratic regime in the 1950s. Here the author ventures into this little-explored territory of the intersection between the separate results of scholars of urban workers on one hand and experts on peasantry and rural workers on the other, a systematic cross-referencing that has become vital, and which began among historians. Thus, the events that transpired during the extension of social rights to the countryside vividly recall what occurred during the selective implantation of labor legislation in the cities: the workers turned to the courts to seek the support of a budding social State when confronting the age-old authority of the employers. In this sense, the words of the former Minister of Labor and Justice and interventor of Pernambuco during the Estado Novo, Agamenon Magalhães, in the Constituent Assembly of 1946 (cited in Chapter 6) are interesting, demonstrating how the employers’ power exhausted and exasperated the proletariat in the process of conciliation and arbitration by the State, which implies that the latter often had to go on strike because their employers would only seek conciliation when such action was imminent. The more veiled sort of conflict that occurred during the Estado Novo when the labor laws were introduced, going against the industrial employers (and which made Magalhães confront industrialists from sugar and textile sectors in the state of Pernambuco), was more open in rural areas when social laws were extended to include the countryside in the 1960s – and sheds light on this more general pattern of the employers’ authoritarian power. To approach rural São Paulo by following the labor cases that were filed there, the author uses the memoirs of two trade union activists from the Brazilian Communist Party (PCB), Luiz Tenório de Lima and Irineu Luiz de Moraes. The former worked in the city and countryside as president of the São Paulo Federation of Food Industry Workers and was himself a sugar mill worker in Pernambuco and Sergipe, and later in São Paulo. The latter was a leader of the peasantry in Ribeirão Preto (a city in São Paulo state). Here, the author does a fine job of comparing the information in the moving biographies of those two activists with other data available about their respective practices, such as the information found in the case records. In their memoirs, both activists seem to disparage

Foreword

XIX

the Labor Courts, pointing out the limitations arising from their bourgeois character. However, the author shows that those two activists and many others from the PCB in the 1950s and 1960s worked tirelessly to raise workers’ awareness of their rights and the option of going to the Labor Courts. He also highlights their practical knowledge of social rights and alliances with lawyers – and numerous cumulative mobilizations and victories. Fernando Teixeira argues that such retrospective biographical accounts are biased by the mark left by the historical cut-off represented by the coup and ensuing dictatorship, making them overstress the heroism of the actors to the detriment of their performance in a more daily, ongoing struggle, dealing with existing institutions (this theory of an analytical bias due to guilt over the defeat of 1964 also seems to weigh heavily in scholarly studies of trade unionism up to a certain point in time). The author’s approach to the subject through the stories of these two exemplary activists leads us into the complex universe of the extension of social rights to the countryside, where we see authoritarian employers, competition between Communists and Catholics to form unions of rural workers, disputes about the unionization of sugarcane workers, and a general reinvigoration of energy workers in the use of the law and the courts, which is strongly present in peasant culture. This book signposts paths for a varied range of derived research to follow, including a line on a more systematic comparison between the use of the courts by urban and rural workers (including a comparison of the introduction of rights in the countryside, such as in São Paulo and the Northeast). Given the limitations of a foreword, I will have to omit many of this book’s substantive contributions, such as the erudition shown in chapter 3, in which the author relativizes the well-known insistence on the similarity of the Labor Courts and the Brazilian CLT to the Magistratura del Lavoro and the Carta del Lavoro of Fascist Italy by broadening the scope of possible comparisons, including the Weimar Republic, the case of the United Kingdom and the New Deal in the United States, as well as the cases of Canada, Australia and New Zealand. Thus, due to the impressive and systematic set of materials brought to support its argument, ranging from the critical analysis of the Brazilian and international literature, as well as the use of workers’ biographies, to the analysis of the corpus of labor cases in the Second Region TRT, Workers before the Tribunal is an important source for understanding the influence of struggles in the Labor Courts on the formation of the Brazilian working class.

Preface – Leon Fink The English-language version of Fernando Teixeira da Silva’s Workers Before the Tribunal is a most apt contribution to the new “Work in global and historical perspective” series sponsored by re:work, the distinguished, Berlin-based international research center. A careful, and rare, exposition of the operation of labor courts in the São Paulo region across one long and tumultuous year—1963 to 1964—of Brazilian political history, the book also reaches across time and space to set a regional and national case study in a much larger interpretive framework. Drawing both on his own deep background in Brazilian labor history and wide readings across other national literatures, Fernando Teixeira fashions a subtle argument about the distinctive yet porous nature of Brazilian labor-institutional structures as they evolved from the Estado Novo (1937– 1945) until the 1964 military coup, while also sounding an alarm about the dangers of subsequent simplifications of the past in the service of present-day political demagoguery. Historically, as I see it, Teixeira makes two main claims about the labor courts, an institution that was first established in 1939 and then formed a key pillar of President Getulio Vargas’s Consolidation of Labor Laws (CLT) after 1943. In line with a wave of recent research, the author challenges the older treatment of the courts and CLT as a mere transplant from Mussolini’s fascist Italy, a tendency that effectively defined Brazilian workers (as José Sergio Leite Lopes neatly puts it in the Preface) within a “corporative construction of their own subordination.” Rather, Teixeira traces a plural and complex intellectual authorship of the laws, with strong influences from France dating to the nineteenth century and the Weimar Republic of the 1920s, as well as conscious awareness among Brazilian legislators of juridical examples in Mexico, Portugal, Sweden, and the United States. The distinctive dimensions of the initial Brazilian system—including tripartism, initial emphasis on ‘conciliation’ versus ‘arbitration,’ and relative (at least as compared to the German case) denial of autonomous trade unionism proved less a copy of any foreign import than a bricolage shaped by adaptation to reigning political realities, initially under the heavy hand of the Vargas dictatorship. Whatever the initial inspiration, when it came to the shape of the Brazilian juridical system, Teixeira finds (borrowing a phrase from U.S. historian Kiran Patel) that the “routes” of its development proved more definitive than the “roots” of its formation. Moreover, “more than simple dichotomies,” Brazilian legal-labor pathways regularly demonstrated an “intertwining” of contracturalist and corporatist impulses. Thus, as his close analysis of 500 cases shows, as pohttps://doi.org/10.1515/9783110638844-004

XXII

Preface – Leon Fink

litical democracy spread during the Second Brazilian Republic (1946 – 1964) and worker organization mounted under President João Goulart (1961– 1964), so too did the ‘corporatist’ edifice take on a more worker-friendly, perhaps even socialdemocratic, hue. At least this is how I read Teixeira’s dispassionate analysis of the court’s caseload, in which workers, sensing their collective power, ignored initial, official pressure to quickly settle with their employers and instead initiated strikes—or the threat of strikes—before obtaining ever more generous settlements from the courts themselves. Although mounting his historical research on unimpeachable empirical scaffolding, Teixeira does not shy from contemporary debate surrounding the legacy of the courts at the heart of so-called Brazilian corporatism. Just as the degree of worker power that had lodged itself “in the heart of the corporatist structure” was attacked by the military coup in 1964 in the name of “free” and “voluntary” economic relations, so too did the neoliberal offensive that crested in the impeachment of President Dilma Rousseff in 2016 similarly denigrate a generation of labor influence over State and civil society as inimical to democracy and individual freedom. By drawing our attention back to the historical—and ongoing—struggles of workers for ‘social rights,’ Teixeira insists that we measure political institutions and those who wield power within them with attention to both intentions and results. Leon Fink is Distinguished Professor Emeritus at the University of Illinois, Chicago and Editor of Labor: Studies in Working-Class History.

Preface to the English Edition Preparations for the Brazilian edition of this book, published in the second half of 2016, were underway during the impeachment of President Dilma Rousseff (Workers’ Party), who was removed from office in August of that year. One of the main measures that the new administration implemented with the support of Congress, the Judiciary, the media and a broad coalition of conservative forces, after the bloodless coup that put her Vice President, Michel Temer, in power, was to sanction “Labor Reform” in July 2017 without consultation or debate with a range of social interlocutors, particularly organizations representing workers. This reform, which was attributed with miraculous powers, has profoundly changed Brazilian labor law embodied in the internationally famous Consolidation of Labor Laws (CLT) created in 1943 during the Getúlio Vargas dictatorship (1937– 1945). The most radical change was to make negotiations prevail over legislation. In other words, the application of the principles of “free and voluntary” collective negotiations between employees and employers permits the curtailment of rights without the mediation and intervention of the law and the Labor Courts. Thus, collective contracts take precedence over numerous legal guarantees that once provided workers with greater protection. By preferring out-of-court agreements as a means of conflict solution, the Labor Reform threatens to turn the Labor Courts into mere rubber stamps for collective agreements. One of the arguments in favor of this principle is the spurious allegation that reversing the primacy of the legislated over the negotiated would give workers’ organizations more bargaining power, enabling them to reach more advantageous agreements through “friendly, free and direct” understandings with employers. This measure has just led the International Labor Organization to put Brazil on the “dirty list” of 24 countries that are violating international labor laws and demand explanations from the Brazilian government. However, supporters of the Labor Reform have proclaimed victory: they say that the “contractualist” or “voluntary” system of labor relations has finally won out over the legislated system that predominated in Brazil for over half a century. This is the structuring question for Workers before the Tribunal, which seeks to problematize interpretations that insist on establishing binary oppositions between these two models. This questioning draws upon a large number of studies about several countries, as well as hundreds of labor litigation cases filed with the Brazilian Labor Courts from January 1963 to March 1964, when a civil-military coup d’état brought down a democratically elected government and marked the

https://doi.org/10.1515/9783110638844-005

XXIV

Preface to the English Edition

beginning of what would become nearly a quarter-century of dictatorial rule (1964– 1985). According to the vast Brazilian and international literature, in the legislated model, which is nearly always associated with corporatism, the State and its agents play a leading role in upholding social and labor rights. In the contractualist model, workers are said to have greater autonomy and negotiating power in the struggle for better working conditions. The issue at the hub of the controversy is the role of the institutions responsible for mediating class conflict, such as the Labor Courts, and conceptions of laws, rights and justice that are believed to legitimize government intervention in labor relations. This separation has crystallized opposing concepts of the Judiciary as an institution charged with disciplining and normalizing social relations. The bestknown image of Justice is that of a blindfolded goddess holding immovable and level scales in one hand and a sword in the other. Justice is (or should be) blind (impartial), balanced and equitable, with the power to impose itself through force. Its wisdom is based on reason, and the decision that emanates from its normative authority is final. Rising above passions and private interests, it equitably distributes punishments and rewards. Everyone is equal in the eyes of the law. Impartiality, balance and the sword confer uniformity, reason, and universality to their decisions. To be truly just, legal equivalence among individuals is derived from universal, abstract, and necessary principles. But what about Justice for “ordinary” men and women, which takes contingent experiences into account, depending on the circumstances and contextual and conflicting human relations? Amidst hierarchies and social inequalities, doesn’t blindfolded Justice “run the risk of becoming blind to people’s different needs”?¹ In this book, I argue that the view that Labor Law is the right of a “class” and therefore “partial” because it prioritizes the protection of the “weaker party” in capital-labor relations which has created an insuperable gulf between two views of Justice. One, firmly rooted in the liberal tradition, professes individual freedom that is irreducible to real social contexts, giving supremacy to the “free will” of the parties in the conflict. Conceived abstractly, “rights” are believed to belong exclusively to individuals. Another expression of Justice is viewed as “traditional”, or “pre-modern,” antedating human rights – in which individuals are inseparable from their community or social setting. As a result, identities are formed, for example, through professional and work experiences. By attempting to “modernize” this concept of Justice, which is closely attached to community

 Rainer Forst, Contextos da justiça: filosofia política para além de liberalismo e contratualismo (São Paulo: Boitempo, 2010), 7.

Preface to the English Edition

XXV

principles, the Labor Law that emerged in the second half of the nineteenth century was supposedly born an anachronism because it sacrificed universal principles to protect groups that demanded better conditions for specific and special reasons. Although labor movements that back social reforms have historically also been human rights movements, both in the individual and social sense, as Eric Hobsbawm reminds us,² the result of the bifurcation between abstract equality and social differences leads to the idea that individual freedom and collective action are incompatible. This is not the place to unravel that philosophical knot. However, by mobilizing a considerable range of international experiences from a comparative perspective, I have attempted to show that there are much more than simple dichotomies between the contractualist models of labor relations, generally attributed to Anglo-Saxon traditions, and the legislated models, as a rule attributed to corporatist, “populist” or “totalitarian” systems. To break out of the prisons that operate with binary models, I have adopted three investigative methods. First, I have attempted to include evidence and arguments that the Brazilian Labor Courts, which were also created during the Vargas regime, may have been inspired by the legal and juridical order of Mussolini’s Italy but are very different from the fascist Magistratura del Lavoro, although the spokespersons for the above-mentioned Labor Reform of 2017 insist on saying otherwise. According to the “modernization” of labor laws, namely balancing the budget, job creation and economic growth, there is nothing more urgent than adapting the labor laws to the new realities and challenges of capitalism: a globalized and highly competitive market, a fragmented supply chain, shrinking production costs, the execution of work in networks and teams, large migratory flows, etc. Therefore, the heralds of the Labor Reform must represent the CLT and everything derived from it – the Labor Courts, official trade unionism, worker protection, the preeminence of the legislated over the negotiated, among other aspects regulating the market and labor relations – as part of an institutionalized, outdated order derived from fascism. Thus the “voluntarist” system of labor relations is said to be the hallmark of “modernity,” putting the final nail in the coffin of “pre-modern” and “populist” concepts of rights and social justice. Second, through a comparative analysis including other “national cases” such as the United States, the United Kingdom, France, Germany, and Australia, I have concluded that, in the course of the circulation, international appropriation and re-signification of ideas and creation of institutions, the Brazilian legis-

 Cf. Eric Hobsbawm, Mundos do trabalho (Rio de Janeiro: Paz e Terra, 1987), 428.

XXVI

Preface to the English Edition

lated model is neither a national peculiarity nor a copy of “inventions” from other countries. In fact, contractualism and corporatism are intertwined and overlap in various national environments. The global history approach adopted in this study is not limited to conducting an inventory of differences and similarities between labor courts of varied origins. Analyzing other countries’ experiences helps raise questions about the “national case,” test hypotheses and take a better approach to the subject of this research.³ Comparisons that go beyond national borders allow a more nuanced understanding of the choices that have contributed to the organization of the Labor Courts on the basis of an international repertoire of similar experiences. We must also assess the weight and social, political and legal significance of these choices. This procedure seeks to overcome the “methodological nationalism” that surrounds Brazilian academic production in order to encompass broader historical processes and their interactions, since communications between “national communities” are fluid, malleable and exert mutual influence.⁴ From this perspective, as Kiran Patel pointed out in his study on the international circulation of ideas associated with the New Deal, “instead of focusing on roots, it is more interesting to investigate the routes.”⁵ In this way, we can identify what the architects of Brazilian Labor Law absorbed from other countries’ experiences. More than providing “proof,” this comparative perspective enables us to address the subject in a more complex manner and try to question typologies and generalizations. It is appropriate to examine the combinations and streams of ideas that flow through different geographic areas in order to overcome the historiographic barriers that are comfortably established on the borders of nation states and often become naturalized. Furthermore, we can identify the influences that act on two processes and units that are apparently mutually incompatible, going on to analyze “causal interactions.”⁶ In other words, we must explore mutual and constant influences, which are subject to the same circumstances due to the proximity of historical processes in time  Michael Hall, “Corporativismo e fascismo nas origens das leis trabalhistas brasileiras.” In Do corporativismo ao neoliberalismo: Estado e trabalhadores no Brasil e na Inglaterra, edited by Angela Araujo (São Paulo: Boitempo, 2002), 19.  Marcel van der Linden, Trabalhadores do mundo: ensaios para uma história global do trabalho (Campinas: Editora da Unicamp, 2013); Leon Fink (ed.), Workers Across the Americas: The Transnational Turn in Labor History (Oxford: Oxford University Press, 2011).  Kiran Klaus Patel, The New Deal: A Global History (Princeton and Oxford: Princeton University Press, 2016), 3.  Marcel van der Linden, “Globalizando a historiografia das classes trabalhadoras e dos movimentos operários: alguns pensamentos preliminares.” Trajetos, Fortaleza, 2 (1) (2002); Idem, “História do trabalho para além das fronteiras.” Cadernos AEL, Campinas, 29 (17) (2010).

Preface to the English Edition

XXVII

and space, seeking to develop a history with transnational characteristics. However, I have tried to avoid the misconception of simply juxtaposing examples drawn from different times and spaces, sacrificing the historicity of the phenomena analyzed, the perception of historical change, and the specificities of national states without turning them into epiphenomena, a risk that is always present in global histories. Third, Workers before the Tribunal seeks to escape the false dichotomy between the purported “national peculiarities” of the Brazilian system of labor relations and the supposed simulacra that originated from international influences, insofar as the model adopted in Brazil was binary. That is, the weight exerted by the State in labor conflicts, especially through a portentous legal apparatus, did not completely exclude the possibility and reality of direct negotiations between capital and labor. This finding is based mainly on the investigation of about 500 labor cases filed with the Regional Labor Court of São Paulo State during the dramatic 15-month period preceding the 1964 civilian-military coup, which ended the democratic era begun in 1946. On the basis of this empirical contribution and an analysis of the context of the coup, I was able to better understand how there was always a tense coexistence between strikes, “free and direct” agreements between workers and employers and the judicialization of conflicts, in order to overcome the aforementioned dichotomies between the legislated and negotiated. I conclude, in any case, that in addition to producing more favorable results for the workers, the intervention of the Labor Courts in that unstable political-institutional situation served to strengthen the organizational momentum of the working class and the formation of its culture of rights. That is why I have strongly insisted throughout this book on the place of institutionality in the political imbalances that led to the overthrow of President João Goulart in 1964. The historical roles that legislation and the Labor Courts have played in workers’ lives since the 1930s have given them class identity. As Richard Sennett observed, “a place becomes a community when people use the pronoun ‘we.’”⁷ The statement comes very close to the conclusion I presented here, in the sense that the categories of Labor Law, which is also a “social place,” played an essential part in the construction of a class language structured in the disjunctive “wethey.” That perception only emerged insofar as the analytical perspective in this book was not satisfied with a merely “institutionalist” view of the Labor Courts,

 Richard Sennett, A corrosão do caráter: consequências pessoais do trabalho no novo capitalismo (Rio de Janeiro: Record, 2015), 165.

XXVIII

Preface to the English Edition

but endowed it with flesh and blood, mindful of “people’s real behaviors and social interactions.”⁸ It has been a lengthy and complex process for these people and their representatives to learn about the regulation of labor relations, allowing them to root their lives in institutions, social ties, mutual commitments and identification with work. Along these lines, I have worked with the hypothesis that the “rights issue,” imbedded in public institutions, was at the heart of the 1964 coup, as well as being at the heart of the machinations that led to the removal of Dilma Rousseff in 2016. On one hand, inclusion policies, social movements and rights struggles participated in and were represented within and outside the institutional spaces in these two moments, situating numerous social subjects in places and positions of decision-making that, according to a long-held conservative consensus present in Brazilian society, they could not occupy. On the other hand, they laid the foundations on which a conservative social base marked by class resentment was formed. In this light, both coups were a reaction to the advances of rights and the broader participation of diverse social actors within a democratic institutional framework. In the current context of global onslaughts on these rights, the experiences of the pre-1964 workers and the institutions with which they established strong and lasting relationships are vital. In the wake of Ernesto Semán’s analysis of the enduring character of social policies developed in post-war Latin America, the conceptions that do not see leftist governments as anything more than “populist totalitarianism” created the conditions for coups in the region during the Cold War and in the current context of neoliberalism. Such conceptions have permitted the emergence of more authoritarian alternatives than those they sought to fight in the name of the right of “free negotiation between equal subjects.” For all these reasons, the struggle for social rights is still a powerful weapon against coups, anti-democratic regimes and illegitimate governments. Fernando Teixeira da Silva Campinas, July 2018

 Amartya Sen, A ideia de justiça (São Paulo: Companhia das Letras, 2011), 36.

Introduction On the eve of the civilian-military coup of 1964 that overthrew President João Goulart, workers and their organizations often frequented all instances of the Labor Courts. Whether it was to complain about violated rights or to defend themselves from the employers, there they were – on their own, accompanied by their lawyers or represented by their unions. Nevertheless, the day-to-day presence of workers in the tribunals has been lost in the crevices of memory and the recesses of history, both for the Left and academic literature. Understanding how that could have happened is one of the broader aims of this book. I uphold the central hypothesis that the participation of workers and their leaders in the institutions set up since the 1930s to deal with labor relations was at the core of the 1964 coup. Therefore, it is appropriate, in brief outlines, to rethink the place workers occupied in interpretations that establish causal links to explain the institutional rupture that occurred in 1964. In general, I see three approaches to the role of social movements and the Left in the period leading up to the coup. All are still prisoners of the “memory of the defeat” perpetuated by the Left since that unfortunate event. One of them constructs the theory that the workers and their leftist leaders, after a long process, participated actively in the “populist” game that Getúlio Vargas had devised since the “1930 revolution”, which brought about a period of State interventionism in the economy and society through nationalistic and centralizing policies.¹ During the democratic period between the overthrow of Vargas in 1945 and the coup of 1964, the working class, in exchange for social protection, supposedly attached itself to the State, in particular to corporatist institutions designed, according to this conception, to perpetrate and perpetuate class domination. Unsuspecting and subordinate to the Communist orientation of class collaboration with the “national bourgeoisie,” they are said to have taken part in a political pact that, in the end, would supposedly reveal the fragility of an unrealistic strategy of alliances, when it was in the bourgeoisie’s interests to prevent any “populist agreements.” In other words, the workers and the “national-reformist” Left allegedly set in motion a political and institutional mechanism to which they would inevitably succumb. Not just victims of a sly trap, the workers appear in this version of events as helping create the trap for themselves, becoming the subjects of their own subordination. By incorporating and using the official channels avail See chapter 1 for the context of the first Vargas administration (1930 – 1945) amid the creation of a sweeping social and labor policy. https://doi.org/10.1515/9783110638844-006

2

Introduction

able in its struggle for rights, the trade union movement would cling to the populist logic of working-class control, preventing it from constructing an alternative and independent policy. By the time it was thrown off the cliff, the Goulart government had taken with it its greatest ally: the workers, who had supposedly linked their fate to that of the State.² The conclusions of this theory bear the hallmarks of the guilt of the Left for the process that would lead to the so-called “collapse of populism.” Another interpretation goes in the opposite direction. In the death throes of the democratic regime from 1945 to 1964, “the flux of social conflicts that flowed from the institutions inherited from the Estado Novo [the Vargas dictatorship between 1937 and 1945] found no corresponding institutional response.”³ In other words, pressure of the Left and the trade union movement, especially during the administration of João Goulart (1961– 1964), was said to have gone beyond the limits placed by the institutions created since the 1930s. It was said to be unrealistic and unable to discern the imbalance of the forces in play during a time when the country was divided between Left and Right. The radicalization of the social movements that went beyond institutionality and the conservative reaction to this process would cause a political polarization whose outcome could be none other than governmental and administrative paralysis. Confrontation between different political groups, Left and Right, implied the absence of political agreements between both sides, leading to the inaction of the Goulart government and the ruthless onslaught of the forces behind the coup. In this version, certain policy choices and options would greatly reduce any possibility of a democratic pact capable of making a realistic commitment to the implementation of feasible reforms.⁴ By failing to take due account of the correlation of forces at that dramatic juncture in the country’s institutional life, leftist-led social movements are said to have been doubly rash: they wanted to go far beyond what the Goulart government could offer and what they could achieve on their own.

 The main thrust of this interpretation can be found in Francisco Weffort, Sindicato e política. Dissertation (Professorial Thesis in Sociology) – FFLCH-USP, São Paulo, 1973.  Wanderley Guilherme dos Santos, Cidadania e justiça (Rio de Janeiro: Campus, 1979), 81.  A pioneering work in this regard is Argelina Figueiredo’s Democracia ou reformas? Alternativas democráticas às crise política: 1961 – 1964 (São Paulo: Paz e Terra, 1993). More recently, Jorge Ferreira went into further depth in “O governo Goulart e o golpe de 1964” in O Brasil republicano: o tempo do nacional-estatismo, edited by Jorge Ferreira, and Lucília de Almeida Neves Delgado (Rio de Janeiro: Civilização Brasileira, 2003, vol. 3). By the same author, see also João Goulart: uma biografia (Rio de Janeiro: Civilização Brasileira, 2011), chapter 8.

Introduction

3

This theory of “decision-making paralysis” formulated by political scientists since the 1970s to explain the institutional atrophy and ambiguous and vacillating policies imputed to the João Goulart administration has the advantage of operating with the indeterminacy offered by different historical possibilities at a time of many uncertainties and some alternatives. However, this interpretation has been drastically overturned in other versions. More recently, it was appropriated and resurrected by the “radicalization of actors” theory.⁵ If the Right were not enough, the Left got involved “in a race for control of the government that set aside the practice of representative democracy. The Right and Left were preparing an institutional coup.”⁶ Both are equated here in strength and intention, as they seemed to have little or no appreciation for democracy. In the radicalization of their actions, gestures and slogans, they are supposed to have led the country to a polarization of irreconcilable forces, and thus to the fatal outcome of 1964. At that moment, according to this analytical perspective, it would become clear that the working class was nothing but a giant with feet of clay. The “optical illusion” of the Left did not let them see “that everything was just a sand castle.”⁷ These three theories – the “collapse of populism,” “decision-making paralysis” and the “radicalization of actors” – operate differently with the question of institutionality. The first, roughly speaking, locates the problem in the inadvertent reinforcement of corporatism. The second and third are variants of the theory that emphasizes the overflow of the institutional dikes erected by Vargism. They all share the “memory of defeat and guilt,” in which both the Left and the social movements were supposed to have had a significant share of responsibility for the disaster of 1964. This book follows a different path, taking the perspective that, at that time, in addition to having a reformist program for the whole of society on the agenda, a political project was underway to expand citizenship and reshape entrenched notions of ownership, national sovereignty and political participation. All this was built in the field of institutionality itself, without dispensing with links with social movements and pressure from the workers. They were firmly situated within an institutional frame that, from 1946 to 1964, became permeable to the workers’ interests and participation. All of this was still part of a social and political dynamic that, for the conservative forces, represented an undue intrusion into recognized areas of decision-making that should be off limits to the workers.  For a critique of this adaptation, see Marcos Napolitano, 1964: história do regime militar (São Paulo: Contexto, 2014), 15.  José Murilo de Carvalho, Cidadania no Brasil (Rio de Janeiro: Civilização Brasileira, 2001), 150.  Ibid., 152.

4

Introduction

I do not want to assert that they were already in power, as a segment of the Left thundered at times when mutually irreducible values and political projects clashed. I intend to point out that notions of citizenship were in the making that questioned whether the workers’ public intervention should take place outside the institutions or within strictly controlled instances from top to bottom. As they entered those institutions, attributing new meanings to them and pushing against their boundaries, the workers and their movements threatened to snap the threads that supported them. The response of a coup was accelerated when “the Left threatened to transform their reformist agenda into a political project of government.”⁸ This book does not intend to give a different explanation for the 1964 coup. However, I have followed the approach briefly outlined here to attempt to understand the relations of urban and rural workers with the Labor Courts during the 15 months that preceded the fall of João Goulart. Going against the verdicts that deny that democracy was a substantive value in that context of Brazilian politics, I have tried to understand the latter as a constant process of invention and reinvention of rights, albeit in the framework of a rather imperfect democracy. Contrary to the dangerous and increasingly fashionable interpretations that the radicalization of social movements leads to coups, I argue that it is struggles for rights that lead to the radicalization of conservative forces, especially when those struggles rely on social actors who cross and expand the boundaries of the institutional spheres to achieve the representation of interests. In fact, evaluations on the workings and performance of the Labor Courts have been strongly marked by a memory of the Left that teleologically locates in the 1964 civilian-military coup the point of outcome that supposedly dictates the entire history of those courts and, above all, the workers’ relationship with them. According to the memoirs of former activists, the option of the nationalist union movement to act in the institutional field to fight for rights supposedly obscured something that seemed obvious but was neglected among the Left itself: the Labor Courts were no more than the “Courts of a Class,” that is, an instrument of domination by the employers, cynically endorsed by the State. Almost without mediation, that memory has become an historical explanation. Symptomatic of a sense of defeat, this memory has become the interpretative key to the “corporatist” experiences of the pre-1964 workers. The proof of the accuracy of this interpretation is said to be attested by the coup that deposed Goulart, when the truth of the class-based essence of the Labor Courts and other institutions created during the Vargas Era would supposedly be revealed.

 Napolitano, 1964, 17.

Introduction

5

I therefore intend to present the counter-theory that the coup was not perpetrated because the leftist organizations and workers’ movements, both rural and urban, inadvertently started up the machine that would inevitably dominate them. Nor do I maintain that there would have been a breakup of democracy because the institutions established during the first Vargas government failed to absorb, control or give vent to social conflicts. In fact, urban and rural social movements transcended the institutional boundaries that restricted many of the actions of the groups involved in the dispute. However, what seemed to be unacceptable to many of those who were engaged in plotting the coup, especially business leaders, was the way the workers and their “representatives” had occupied and given different meanings to the official arenas for the representation of interests. What this study of the performance of the Labor Courts at that time seeks to demonstrate is that several struggles that grew through the expansion of the rights of urban and rural workers found an institutional outlet, both de facto and de jure. From the beginning of 1963 until April 1964, it was not only the movements for agrarian reform and occupation of land “for those who worked there” who were in the sights of the coup plotters, but, above all, the rapid organization of workers and their wins in the corporatist institutions, with a special emphasis on trade unions and the Labor Courts. Thus, in more specific terms, I analyze the possibilities and limits of a controversial instrument of the Labor Courts: normative power. This special and autonomous branch of the judiciary had the power to create norms concerning wages and working conditions through the decisions of its judges. It is worth noting that the Labor Courts were created with the aim of playing an eminently conciliatory role, but when the parties did not agree, the judges set the terms of the collective bargaining clauses, which are usually activated once a year by the workers’ unions and by the employers or their representatives. Thus, the compulsory arbitration of conflicts was established. In short, having exhausted all efforts to achieve conciliation between workers and employers, when the court handed down a judgment, it was exercising normative power. In the case of a strike or the imminent threat of such action, the judges could also institute collective disputes [dissídios coletivos]. To evaluate the impact of this power and its meanings on the eve of the 1964 coup, I examined about 500 collective cases from the Regional Labor Court of the Second Region, with headquarters in the city of São Paulo. I sought to investigate how the TRT dealt with the demands of urban and rural workers between January 1963 and March 1964. As every historian has his or her “fragments of

6

Introduction

time,”⁹ the chronological snippet adopted here is the “long year of 1963,” which ends in the coup. This book goes back and forth in relation to this chronological framework, but the focus is on that situation of radical political polarization. This is a key period because it was a time of accentuated mobilization of workers between 1945 and 1964, during which the Labor Courts established themselves as a crucial player in relations and conflicts between capital and labor. The courts were one of the sought-out institutions for the movements, demands and political organizations of business leaders, workers and their unions. Their performance gained enormous visibility, precisely in the 15 months that preceded the coup. This was because labor law played a strategic role in policies and plans that tried to douse the wildfires of inflation, control a strike movement that had not been witnessed in Brazil since it became a republic, and put a stop to the rural workers’ well-organized struggle to expand their rights. It is this strangely little-known story that I seek to analyze. We will follow a story in which the subalterns occupied, in their own way, spaces supposedly designed to oppress them. However, to do so, we must also pay close attention to the work of the tribunals and judges of the Labor Courts. In academic literature, they were hidden figures in a situation of clearly undemocratic onslaughts, precisely when they were called on to deal with hundreds of cases involving thousands of workers who were increasingly exasperated not only with their employers but also the political turn the country was taking and certain practices the judges engaged in during the act of judging. As we shall see extensively, this is an act, in the definition of the philosopher Paul Ricoeur, aimed at putting an end to uncertainties, establishing public peace, revealing preferences, expressing the force of law, interpreting the law, creating precedents, taking positions and intervening in social practices. However, if “every judgment entails a ‘but’,”¹⁰ everything that adversative conjunction entails is carefully examined in this book. In other words, I investigate the rulings from the perspective that judges’ decisions cannot be taken a priori as an expression of a court of workers or of employers. Therefore, I have chosen to analyze – up to a certain point in methodologically experimental terms – the trajectory of the São Paulo TRT during the 15 months leading up to the coup in March 1964; that is, between the Three-Year Plan to curb inflation developed by Celso Furtado, an internationally renowned economist, and the fall of the Goulart administration. In that context, the Labor Courts were “called upon”  E. P. Thompson, Os românticos: a Inglaterra na era revolucionária (Rio de Janeiro: Civilização Brasileira, 2002), 61.  Paul Ricouer, O justo: a justiça como regra moral e como instituição (São Paulo: Martins Fontes, 2008, vol. 1), 176.

Introduction

7

to solve problems that presented veritable paradoxes: on one hand, combating the politically dangerous high cost of living by controlling wage increases, and on the other, protecting the workers’ purchasing power; recognizing the constitutional right to strike while preventing the “abuse” of that right; judging in accordance with “national interests” and bolstering the country’s economy and industry, although it had to defend the “weaker party” in labor relations; disciplining the world of urban labor, for which it was created; and at the same time deciding if it had the authority and jurisdiction to intervene in labor conflicts in the countryside. This is the range of paradoxes that lie at the heart of the judges’ normative decisions, but which put the Labor Courts at a difficult crossroads at a time of tremendous political and institutional instability in Brazil. Therefore, determining beforehand whether the Labor Courts invariably ruled in favor of the workers or were pro-employer in that difficult time in Brazil’s political life is a false and naïve question. To simplify the problem to such a degree leads to the incomprehension of the specificity, political place and ambiguities of the Judiciary. It would attribute it with a degree of autonomy which it does not possess, as if it resisted social pressures and the Judiciary itself were not part of the conflicts, limiting itself to being a space destined exclusively for their resolution. There is a great deal of unpredictability when a legal struggle begins. Its outcome is uncertain, as it depends on the multiple forces in play, the situation and wage policies, the parties’ knowledge of the makeup of the courts and the performance of the judges, the skills and, why not say it, tricks of the lawyers, as well as the degree of organization of workers and business leaders, among many other factors that are not present at the start, but will be painstakingly mobilized and understood here in their relative indeterminacy. Viewing the Labor Courts as a cynical and individualistic expression of the interests of the ruling classes or as a “workers’ court,” the implacable restorer of usurped rights, is a way of establishing a false antinomy.¹¹ It would be more effective to view them as an arena of conflict in different historical settings,¹² a field of negotiation between unequal social forces, but in which the workers had recognized rights over the “stronger” party.¹³ Thus, I have attempted to in-

 See Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (Cambridge: Cambridge University Press, 1992), XXII and XXIII.  E. P. Thompson, Senhores e caçadores: a origem da lei negra (Rio de Janeiro: Paz e Terra), 1987.  Idem, “Economia moral revisitada”. In Costumes em comum (São Paulo: Companhia das Letras, 1998), 260.

8

Introduction

ventory the situations and expectations that motivated workers, business leaders and unions to mobilize the Labor Courts, confronting and challenging the apparent rigidity and autonomy of the laws and the judicial “sphere.” By taking this approach, I avoid the formalist and internalist interpretation of the law, in which it emerges as a subject endowed with autonomy, as well as the instrumentalist conception that conceives it merely as the apparatus of domination of the State and the employers.¹⁴ In recent years, historians have insisted on the ability of workers and their institutions to appropriate laws and legal instruments, but despite its innovative character, this thesis of appropriation covers only a minute part of the question. What I am trying to demonstrate here, precisely, is the creative nature of legal norms and new rights that resulted from the pressure of the workers’ movement with the daily participation of unions, workers, and lawyers in the clashes they engaged in within the legal apparatus. *** Readers can peruse each chapter of the book separately or in the sequence they choose. However, to get a general perspective and see how the parts of the book form a whole, I suggest the following itinerary: Part I of this study focuses on eminently historiographic matters, particularly regarding the longstanding disparagement of the subject, closely associated with the discredit of the Labor Courts within the sphere of the Law itself. For a long time, this has helped make that institution something of a taboo subject of research among historians. Thus, chapter 1 concentrates on the historiographic fortunes of the Bazilian Labor Courts and the political meanings attributed to them, seeking to understand why they have only recently acquired academic “citizenship.” Normative power, a subject that runs throughout the book from beginning to end, is the focus of chapter 2. This legal instrument remained for several decades at the center of a fierce academic, political and legal debate. Its existence was commonly seen as the tyranny of the public over the private, contributing to the discredit of the Labor Courts. The relative freedom of judges to decide on and create norms for wages and working conditions is seen, as a rule, as the taciturn and sclerotic counterpart to the supposedly unobtrusive and modern contractualist voluntarism present in countries such as the United Kingdom and the

 Regarding this dual interpretation, see Pierre Bourdieu, “A força do direito: elementos para uma sociologia do campo jurídico.” In Idem, O poder simbólico (Rio de Janeiro: Bertrand Brasil, 2007).

Introduction

9

United States. I then go on to present and relativize the binary opposition between two systems of labor relations: on one hand, the legislated, generally considered to be controlled by the State; and on the other, the contractual or “voluntarist,” defined, as a rule, by the opposing parties’ “autonomy of will.” This separation expresses idealized views of the labor movement and the models of labor relations in the countries that gave birth to capitalism, which have left Brazilian intellectuals with such a strong inferiority complex. In chapter 3, I continue making international comparisons of the regulation of labor conflicts, particularly debating with analyses that consider the Brazilian Labor Courts to be an ill-disguised copy of the Magistratura del Lavoro of Fascist Italy, and normative power its main bastard offspring. I then go on to systematically compare both institutions while mobilizing information and studies on other countries’ experiences. These comparisons make it possible to demonstrate that the formation of the Labor Courts in Brazil should be viewed as a creative “assemblage” based on a highly complex range of international influences, particularly with regard to the institutionalization of normative powers. Therefore, in the first part of this book, I focus on the debate between the conceptions that argue that the Labor Courts, alongside the unions, were the institution responsible for gutting a truly independent and free workers’ movement that relied solely on its own potential and resources to establish collective and direct negotiations with employers without government protection or red tape. Part II concentrates on a detailed analysis of the exercise of normative power based on an exhaustive empirical study of disputes filed with the TRT. Chapter 4 demonstrates how the Labor Courts only partially followed the interventionist route, since the field of direct negotiations and, to a certain point, free negotiations, was not completely off limits. I examine how the instrument of normative power which, in principle, gave the courts “broad freedom to create norms,” was used during the period covered in this study. To what extent did judges base their decisions on the government’s plans and give in to all sorts of pressures to control inflation to the detriment of wage increases and other demands? Where did the freedom of the courts to create norms end and the imposition of the law begin? Did the workers obtain more rights through direct negotiations with employers than through the normative powers of the Labor Courts? These are some of the questions that emerge in the debates that crystallize the differences between the legislated and contractualist models. The fifth chapter deals with the scope, boundaries and limitations of TRT judges’ decisions. First, I investigate the act of judging, including the different ways in which judges can vote on the items disputed in collective bargaining agreements. I emphasize the voting “patterns” of the lay judges (representatives of employees and employers). Secondly, I assess the moorings of normative

10

Introduction

power within the broader institutional framework of corporatism, emphasizing the effects of the fragmentation imposed by the union structure, both in collective bargaining and the outcomes of the disputes. Chapter 6 explores the proclaimed antitheses between strikes and normative power, analyzing how workers, employers and their unions acted in the intricate legal workings that have controlled the right to engage in mass work stoppages since the immediate post-war period. It causes some perplexity that, with honorable exceptions, even studies exclusively intended to analyze strikes during that period are silent about the relationship between them and the Labor Courts, precisely when the strike movement was about to take down the pillars of the labor relations system in Brazil.¹⁵ In chapter 7, I attempt to remove some bricks from the historiographical wall that has been raised between studies on urban and rural workers. The ruralurban divide has hidden a rich dynamic of intersections between workers and activists in the city and the countryside.¹⁶ We will see that it was in the experience of struggles for rights in the cities that leaders of the urban workers’ movement also joined forces with rural workers to expand their rights at a time of profound change in labor relations in the countryside. To achieve this, union activity was fundamental in the Labor Courts, mobilizing normative power and, thus, significantly altering age-old notions of gifts and favors that historically presided over relations between farmers and rural workers. These four last chapters are, so to speak, the core of the book. They show that, over the course of several years in which labor laws became part of the narrative of workers’ rights, that is, a language that associated class interests with legal protection through individual and collective pressure, the legal world in the early 1960s was far from being a foreign space for employees and employers. As I observed at the beginning of this introduction, the Labor Courts were quite familiar to them. Undoubtedly, in Brazil’s legislated system of labor relations, a thick layer of institutions and interdicts was created to keep workers and their organizations away from the helm of day-to-day work relationships on the socalled “factory floor.” However, going to court did not obviate other forms of simultaneous mobilization. Alternative ways of winning, recognizing and broad-

 In more than two hundred pages of his book, this is all that Salvador Sandoval wrote on this subject: “[between 1961 and 1963] the unions pressured local employers to appear both at the negotiating table and in the courts.” Os trabalhadores param: greves e mudança social no Brasil: 1945 – 1990 (São Paulo: Ática, 1994), 110.  See Felipe Augusto dos Santos Ribeiro, A foice, o martelo e outras ferramentas de ação política: os trabalhadores rurais e urbanos de Magé (1956 – 1970). Dissertation (PhD in History) – CPDOC-FGV, Rio de Janeiro, 2015.

Introduction

11

ening rights were not so obstinately pursued in the absence of legal confrontation, but because of it. *** A brief explanation about the procedures followed in this study is necessary to understand the exercise of normative power. It was key to investigate all the collective cases judged by the São Paulo TRT between January 1963 and March 1964. The analyses seeking to investigate the performance of the Labor Courts are generally faulty and very limited when they are not based on complete series of documents, relying instead on random samples (based on cases that were not thrown out by the courts themselves) and failing to follow every step of the judges’ decisions, changes of opinion and votes. In addition to using all the cases filed in that “long year of 1963,” broken down in detail in an electronic database,¹⁷ I adopted the serial reading procedure: I analyzed all the cases in succession. This seemed the best way to gain an accurate perception of regularities, patterns and recurring arguments, nuances and changes in the act of judging that comprise a generally consistent set of judges’ presuppositions, concerns and anxieties.¹⁸ Thus, I aimed to explore a great deal of the research potential opened by a thorough examination of Labor Court records in the hope that this investigative conduct will serve as an invitation to other studies that are either similar or critical of the procedures adopted here, as long as they make a considerable empirical contribution. More commented on than properly investigated, except in recent years, the subject of the Labor Courts is still devoid of detailed studies using hundreds and hundreds of individual and collective bargaining cases, which would overcome generalizations about both the institution and the interaction of workers with the courts. It is in this sense that I question the analyses that are mainly based on the memories and statements of workers and activists about their experience with the Labor Courts, without problematizing the narrative protocols and complex processes of constructing the memory of oral sources and “writings of the self.”

 “Dissídios: Trabalhadores e Justiça do Trabalho,” http://www.ifch.unicamp.br/cecult/ dissidios.  Regarding “serial reading,” see Mariana Joffily, “A voz do dono e o dono da voz”, Esboços, Florianópolis 17 (14) (2007).

Part I: Labor Law in Brazil

15

For a little over three decades, criminal case records have been highly valued in Brazil by historians, who are establishing ever-closer ties between History and Law Studies. By studying court records, researchers have significantly expanded the scope of their investigations. As for analyses of the exercise of power, viewed in its broader sense, they have investigated the history of criminality, legal institutions, the normative actions of the courts and the mechanisms for disciplining society. In the field of social history, court records constitute a vast documentary repertoire for such studies, particularly in the history of everyday life and the struggle for rights by anonymous men and women, slaves, indigenous peoples and so-called “free workers,” as well as various conceptions regarding laws, rights and justice. As Silvia Lara and Joseli Nunes Mendonça have underscored, the increasingly renewed importance of court records is the result, among other factors, of a radical change in the perception of the role of legislation and its application in the historiography in Brazil and the world. The “underdogs” are no longer mere objects of political structures viewed as apparatuses of class domination, but rather interpreted as active actors that challenge normative institutions. They thus become protagonists in the legal order of society, both through their demands and their clashes in the arena of the courts.¹ However, things were different with studies of labor court records, although, as we will see, in recent years, there has been growing interest in the study of the Labor Courts (Justiça do Trabalho) and its sources. Therefore, it is appropriate to speculate about the various political and academic reasons for the discredit still attached to such documents and the belated emergence of studies of labor law.  Silvia Hunold Lara and Joseli Maria N. Mendonça (eds.), “Apresentação.” In Direitos e justiça no Brasil: ensaios de história social (Campinas: Editora da Unicamp, 2006). Regarding the relationship between masters and slaves, criminal cases have been important empirical sources for several studies, including Silvia H. Lara, Campos da violência: escravos e senhores na capitania do Rio de Janeiro, 1750 – 1808 (Rio de Janeiro: Paz e Terra, 1988); Sidney Chalhoub, Visões da liberdade. Uma história das últimas décadas da escravidão na Corte (São Paulo: Companhia das Letras, 1990); Hebe Mattos. Das cores do silêncio: os significados da liberdade no Sudeste escravista – Brasil século XIX (Rio de Janeiro: Nova Fronteira, 1998). Regarding subjects like crime, criminality and the workings of the justice system, see Boris Fausto, Crime e cotidiano: a criminalidade em São Paulo, 1880 – 1924 (São Paulo: Brasiliense, 1984); Mariza Correa, Morte em família: representações jurídicas de papéis sexuais (Rio de Janeiro: Graal, 1983). There are several studies focused on recreating the daily lives of workers in urban areas and workplaces on the basis of criminal cases: Sidney Chalhoub, Trabalho, lar e botequim: o cotidiano dos trabalhadores no Rio de Janeiro na belle époque (São Paulo: Brasiliense, 1986); Martha de Abreu Esteves, Meninas perdidas: os populares e o cotidiano do amor no Rio de Janeiro da belle époque (Rio de Janeiro: Paz e Terra, 1989); Fernando Teixeira da Silva, Operários sem patrões: os trabalhadores da cidade de Santos no entreguerras (Campinas: Editora da Unicamp, 2003). This is just a small sample of studies that have made rigorous use of court records.

16

Part I: Labor Law in Brazil

To do so, I will examine the academic output on the subject, the significance of normative power in different systems of labor relations and the formation of the Labor Courts in the context of the broad international spectrum of institutions devoted to resolving conflicts between capital and labor.

1 Historiography of a “minor tribunal” Before examining the historiography, I will give a brief history of the creation of the Labor Courts in Brazil. As that institution is part of a subject still not studied extensively by historians, this chapter also plays the role of a (second) introduction to this book, as it aims to better situate the reader in regard to some of the concepts, principles and agencies that consolidated the Labor Courts, which will be a constant presence in the pages of this study, particularly the role of normative power.¹

I It is hard to pinpoint exactly when discussions of courts that specifically focused on labor relations began in Brazil. However, the theme appears with some frequency during the First Republic (1889 – 1930). That was a period generally described as “liberal” when it came to dealings with the “social question,” although it covered a number of labor laws, such as those regarding workplace accidents, holidays and the protection of child and female labor. In 1905, the attorney Evaristo de Moraes, who proclaimed himself a socialist and often defended labor causes and parties, published Apontamentos de direito operário (Notes on Labor Law), a book in which he referred to the need for the “official organization of a tribunal made up of employers and workers, intended to resolve issues raised regarding wage labor.”² He argues in favor of State intervention in labor relations through laws establishing “fair conditions for labor contracts.” Moraes was not alone, as other attornies and politicians also emerged with links to labor activism, which became increasingly organized.

 Some parts of this section were written in collaboration with Ângela de Castro Gomes, “Labor Courts in Brazil: Origins, Challenges, and Expansion.” In Leon Fink and Juan Manuel Palacio (eds.), Labor Justice across the Americas (Illinois: The University of Illinois Press, 2018). For a more detailed study of the history of the Labor Courts, beginning before their inception, in the 1940s, see Ângela de Castro Gomes and Fernando Teixeira da Silva, “Os direitos sociais e humanos dos trabalhadores no Brasil: a título de apresentação.” In Idem, A Justiça do Trabalho e sua história: os direitos dos trabalhadores no Brasil (Campinas: Editora da Unicamp, 2013). See also Ângela de Castro Gomes. O Tribunal Regional do Trabalho da 1ª. Região e a Justiça do Trabalho no Brasil (Rio de Janeiro: TRT-Rio, 2006).  Evaristo de Moraes, Apontamentos de direito operário (São Paulo: LTr, 1971), 19; about this book, see Joseli Maria N. Mendonça, Evaristo de Moraes, tribuno da República (Campinas: Editora da Unicamp, 2007), chapters 2 and 7. https://doi.org/10.1515/9783110638844-007

18

1 Historiography of a “minor tribunal”

Two years later, in the context of a wave of strikes in several Brazilian cities, primarily in defense of the eight-hour workday, a decree issued in January 1907 determined that the unions should be formed “with the spirit of harmony between employers and workers” and that both parties should be “linked by permanent conciliation and arbitration boards designed to resolve differences and disputes between capital and labor.”³ Later on, based on international experience, the State Department of Labor (DET), created in 1911 in São Paulo state, also considered the advantages of the institutionalization of conciliation and arbitration bodies involving government mediation. In 1912, the Fourth Brazilian Workers’ Congress, organized primarily by the “reformist elements” of the labor movement, issued a manifesto that demanded the creation of a tribunal “with equal representation of employers and workers.”⁴ The congress took place in the context of major worker unrest in São Paulo. In 1913, notable strikes broke out in protest against the increased cost of living and a new law deporting foreigners. However, those initiatives came to nothing, although they may have provided an incipient language and a range of legal alternatives that eventually engendered debates aimed at finding “solutions” to the conflicts, going beyond the grammar of police and judicial violence. In 1918, when the Chamber of Deputies took the first steps towards developing social legislation with the introduction of new proposals for labor regulation, workers engaged in extensive strikes and protests during this period, particularly in the cities of Rio de Janeiro and São Paulo. The 1917 general strike in São Paulo was a convulsion of unprecedented magnitude. Some 50,000 workers downed tools during four days of looting, shootings and barricades. The movement was primarily rooted in worker discontent over exhausting, unhealthy and dangerous conditions in the factories, and primarily, the high cost of living. The workers won a 20 percent wage increase, a commitment from employers not to fire the strikers and a promise by the state government to free those imprisoned during the melee and to legislate for better living and working conditions. In the aftermath of their victory, a strong associative spirit spread throughout the city, leading to a proliferation of new unions, neighborhood leagues and labor newspapers. However, the euphoria proved shor-lived, as there ensued an upsurge of arrests, deportations of foreigners, closure of unions and disrespect for the agreement on the part of the company own-

 Decree no. 1.637, 5th January 1907.  Marcelo Antonio Chaves, A trajetória do Departamento Estadual do Trabalho e mediação das relações de trabalho (1911 – 1937) (São Paulo: LTr, 2012), chapter 1.

1 Historiography of a “Minor Tribunal”

19

ers. In 1919 and 1920, a fresh wave of strikes arose in other cities, with workers making demands similar to those of 1917. The São Paulo strikes sparked a redoubled response among employers in the next few years: continuous repression and the formulation of social and labor laws. Outside Brazil, there were also concerns about the “labor question.” This was because the Treaty of Versailles, to which Brazil was a signatory in 1919, recommended the recognition of the new social rights that represented post-World War I society. It was amid the wave of strikes from 1917 to 1920 and the deliberations leading to the Treaty of Versailles that bills took shape to regulate working conditions, including the formation of the Conciliation Commissions and Arbitration Boards, with equal representation of employers and workers. In 1918, the Brazilian Congress and Senate approved the creation of the National Department of Labor (DNT), whose sphere of responsibility would have included resolving labor disputes. However, this initiative also came to naught. In 1922, during the administration of Governor Washington Luiz, São Paulo state created Rural Courts to deal with conflicts arising from the interpretation and execution of farmworkers’ contracts. They were to be presided over by a judge and include two members, one appointed by the landowners and the other by rural workers. They were also to be guided by oral proceedings and the principles of being free of charge and swift. Nevertheless, there is no record that they actually went into operation. According to jurist and politician Waldemar Ferreira’s assessment in 1938, the Rural Courts originated from and were consistent “with the corporatist ethos” that would guide the drafting of social legislation a decade later. In Ferreira’s view, although he did not provide the reader with his sources, the results were unsatisfactory because workers who did not live in the district of the county seat had to travel there, which involved travel costs and difficulties. However, the problem was the selection of the workers’ lay judge, who had to be found “within their circle of friends or among their own class.” Also according to Ferreira, not without some class condescension, “few would be willing to overcome their natural timidity, reflecting their social condition, to participate in a court in which they would have to publicly express their judgment.”⁵ Therefore, it is important to observe that as far back as the 1920s, the Rural Courts marshaled principles – representation of interests and

 Waldemar Ferreira, Princípios de legislação social e de direito judiciário do trabalho (São Paulo: São Paulo Editora Limitada, 1938), vol. 1, 46 – 56. References to the Rural Courts were merely based on Ferreira’s impressions.

20

1 Historiography of a “minor tribunal”

cost-free justice – that would take concrete form in the post-1930 corporatist principles. The most important step towards regulating labor relations in Brazil came through the National Labor Council (Conselho Nacional do Trabalho; CNT), approved by decree in April 1923.⁶ It would effectively become the first institution to engage in labor conciliation and arbitration along the lines of the future Labor Courts. The first president of the CNT was the criminalist and academic Augusto Viveiros de Castro, who in 1919 backed the creation of Industrial Boards (Juntas Industriais) whose members were elected by employers and workers, with a government representative presiding.⁷ In other words, once again, we see a proposal that, while focused on urban workers, also adopted the principle of tripartite representation of interests. The creation of the CNT meant dropping plans for the DNT, which employers had criticized and rejected, especially because its jurisdiction included the arbitration of conflicts between capitalists and workers, which then fell within the purview of the police. The fact that the CNT was an advisory body that could neither plan social legislation nor handle labor disputes made it more acceptable to the employers, as they were averse to what they considered undue interference by the State, as called for by the DNT. Subordinate to the Ministry of Agriculture, Industry and Commerce, the CNT was directed by the Minister and made up of 12 members appointed by the President of Brazil: eight representing the government, two the employers and two the workers. In 1928, this agency was organized by a decree that expanded its powers. At first, it mediated and adjudicated conflicts between workers within the sphere of job stability and the law on railway workers’ holidays and pensions, some of the few labor laws then existing in the country. However, this legislation was rarely applied or enforced. The CNT would become one of the most important institutional spaces within the employers’ sphere of operations. Although they failed to prevent Congress from introducing bills and voting on laws regulating labor relations, the employers influenced the implementation of those laws, especially by intervening in the drafting of the regulations, which were within the purview of the CNT.⁸

 Coleção de Leis do Brasil de 1923, Decree n. 16,027 of 30th April, 1923, 368 – 371.  Augusto Viveiros de Castro, A questão social (Rio de Janeiro: Livraria Editor Conselheiro Candido de Oliveira, 1920), 121.  For a pioneering and more detailed analysis of the judicialization of labor relations through the CNT, see Samuel Fernando de Souza, “‘A questão social é, principalmente e antes de tudo, uma questão jurídica’: o CNT e a judicialização das relações de trabalho no Brasil (1923 – 1932).” Cadernos AEL, Campinas, 26 (14) (2009); Ibid., “‘Coagidos ou subordinados’: trabalhadores, sin-

1 Historiography of a “Minor Tribunal”

21

By the time of the Revolution of 1930, which is commonly believed to have produced Brazilian labor laws, several related institutions, practices and legal and political debates were already in place. Getúlio Vargas had done nothing new by addressing the social question in his presidential campaign. The innovation was how he approached it, by recognizing its existence and accusing previous administrations of not really wanting to tackle it. For Vargas, the social question was an indicator of Brazil’s economic progress, which should be recognized and treated politically by the State through the regulation of capital-labor relations. Vargas lost the election. However, backed by a broad and varied alliance, he led an armed response that challenged the prevailing political pact and overthrew the incumbent president. The Revolution of 1930 was a milestone in Brazilian history, signaling major political, economic and sociocultural changes. Nevertheless, historians have contested the version built up by those who held power in the post-1930 period, according to whom that movement was a true starting point in history. As we have seen, in the case of the social question, laws had already been enacted, accompanied by experiments in establishing conflict regulation agencies such as the CNT. Nevertheless, government intervention faced immense employer resistance and lacked the legal instruments required to make it effective. Therefore, one of the most important changes made during the post-1930 period was the creation of two ministries: Education and Health; and Labor, Industry and Commerce (henceforth the Ministry of Labor). In both cases, the State was clearly present in matters of “social interest,” expressed in the creation of a new bureaucracy that would be responsible for formulating, implementing and monitoring public policies to address problems related to those areas. The first Ministry of Labor team, under the command of Minister Lindolfo Collor, included long-standing labor activists such as Evaristo de Moares, and Joaquim Pimenta, a self-proclaimed socialist. They are considered by the literature to be chiefly responsible for building the corporatist union structure that was mounted at the time and approved by the 1931 trade union law.⁹ This example illustrates how government intervention in the social question was not a demand necessarily associated with plans for an authoritarian State, as has sometimes been maintained. That intervention embraced the entire range dicatos, Estado e as leis do trabalho nos anos 1930.” Dissertation (PhD in History) – IFCH-UNICAMP, Campinas, 2007.  Michael M. Hall, “Corporativismo e fascismo nas origens das leis trabalhistas brasileiras.” In Do corporativismo ao neoliberalismo: Estado e trabalhadores no Brasil e na Inglaterra, edited by Ângela Araújo (São Paulo: Boitempo, 2002).

22

1 Historiography of a “minor tribunal”

of labor and social security laws, in addition to those focused on union organization that started in 1931. In fact, academic studies have observed that the period between 1931 and the beginning of the Estado Novo (New State) in 1937 concentrated the largest number of government policies for the regulation of the labor market, which came about despite the great uncertainty of the Brazilian political context. Those six years witnessed a civil war in 1932, an anti-Vargas movement led by part of the opposition in São Paulo state demanding constitutional government for the country. This movement was defeated, but the federal government then convened a Constitutional Assembly in 1933, composed of employers’ and employees’ representatives, as well as political-party representation. The process of reconstitutionalization took place in 1933 and 1934, concluding in the indirect election of Getúlio Vargas to the presidency and implying the country’s return to the rule of law. The new constitution provided for the autonomy of trade unions and a system of Labor Courts. However, at least for the labor movement and communists, a real State of siege began in late 1935 when Vargas used an unsuccessful uprising led by the Communist Party to demobilize the working class and the Left through harsh repression. In 1937, under the pretext that communists were engaged in yet another conspiracy, Vargas set up the Estado Novo, an authoritarian regime that lasted until 1945. The entire series of social laws, introduced before the Estado Novo, was driven ever more clearly by a corporatist policy; that is, by a policy guideline that valued interest groups (such as trade unions) and technical agencies, which gained the status of public institutions to work with the State in their specific fields of expertise. Since they were linked to corporatist principles and ideals that rejected the “class struggle” and defended “social harmony,” especially regarding labor relations, these new bodies required formal recognition by the State in order to function. In the case of trade unions, they were organized according to the principle of their occupational category on a territorial basis. That is, railway workers, bakers, textile workers and other professions in a city or municipality were organized in a single union, which, in turn, was connected to the National Confederation for that profession. Only trade unions organized along those lines were guaranteed recognition by the State. Therefore, the unions had status as public entities and, in return, since, 1940, financial contributions were required from employees in a given profession, whether they were unionized or not. As for employers’ syndicates, due to their opposition to government intervention in their associations, an “alternative” model was created: alongside the employers’ syndicates, which were in accord with corporatist directives, the original employers’ associations continued to function. Another part of this picture, rounding it out, was the political plan of those who took power in 1930, which included the creation of a Labor Courts system,

1 Historiography of a “Minor Tribunal”

23

conceived as a special tribunal for the adjudication of labor-related matters, intended to handle individual and collective claims and having specific procedures, which were free of charge, oral and swift, among other aspects, such as the presence of “vogais” or “juízes classistas” (lay judges representing employers and employees) alongside professional judges (juízes togados). As the body that was supposed to ensure compliance with labor laws, highlighting the possibility of negotiating conflicts between “employers and employees” according to the terminology of the time, the Labor Courts were linked directly to the Ministry of Labor. From the very start, Brazil’s Labor Courts were an integral part of the Executive branch, not the Judiciary, a crowning measure for the corporatist architecture of the post-1930 State. Although they have precedents in the practices of entities like the CNT, the Labor Courts were established by the 1934 Constitution, but only became operational during the Estado Novo dictatorship, on 1st May, 1941. It is no coincidence that this is the date for celebrating work and workers. Even after 1930, the creation of this institution was no simple matter. It came up against several obstacles, including resistance from employers and attorneys who were opposed to the idea of a special court focused on collective rights. Therefore, we should understand the period between 1931 and 1941 as one of debates about the legitimacy and feasibility of establishing Labor Courts in Brazil, while two institutions were already focusing on conflicts between employers and workers: the Mixed Conciliation Boards (Comissões Mistas de Conciliação ou Juntas de Conciliação e Julgamento) and Conciliation and Arbitration Boards (Juntas de Conciliação e Arbitragem), both created by decree in 1932. Despite the difficulties and limitations, they functioned throughout the decade preceding the creation of the Labor Courts, which only occurred in 1941, as we have seen, when the Estado Novo dictatorship neutralized most opposition to its policy initiative. The Mixed Conciliation Boards¹⁰ were designed to settle disputes arising from collective bargaining agreements. They were collegial bodies made up of representatives of employees and employees who were chosen by lot, for which purpose the syndicates and unions presented lists of nominees. The presidency of that body, who was appointed by the Labor Minister, should be held by “people free from professional interests,” such as judges, members of the Brazilian Bar Association (OAB)¹¹ or civil servants. The Boards did not have the power

 Decree no. 21.396, 12th May 1932.  This institution is the highest body that establishes rules and supervises the professional practice of attorneys in Brazil, the equivalent of the Bar Association in the United States (N.T.).

24

1 Historiography of a “minor tribunal”

to enforce their own decisions, and were only designed to conciliate and mediate collective conflicts between capital and labor. If an agreement was not reached, the CMCs could propose an arbitrator or refer the dispute to the Labor Ministry for resolution. In its turn, individual disputes (dissídios individuais) were referred to the Conciliation and Judgment Boards (Juntas de Conciliação e Julgamento; JCJs), which were limited exclusively to unionized workers and did not have any power to enforce their own decisions, which was the responsibility of what were called the ordinary courts (justiça comum) through the prosecutors of the National Department of Labor. The JCJs were made up of two representatives of each party, chosen from a list drawn up by the syndicates and unions, with 20 nominees, as well as a president appointed by the Ministry of Labor or an authority representing that agency.¹² Both bodies faced numerous limitations to their work and scant resources, which affected their performance and credibility.¹³ For example, there were only Mixed Conciliation Boards in the states of São Paulo and Rio de Janeiro. As Evaristo de Moraes Filho, then the young secretary of the Rio de Janeiro CMC, recalls, “lawyers, middle-aged men, were paid nothing: they provided public services… Our only furniture was a desk, nothing more. All the materials were kept there: a typewriter and the case records.” And he concludes, “The most radical people paid no attention to them [the CMCs] and didn’t go there.”¹⁴ The Constitution of 1934 created the Labor Courts, considering that “the creation of Labor Courts and Conciliation Boards must always obey the principle of election of members, half by associations representing the employees and half by employers, with a president freely appointed by the Government.”¹⁵ The constitutional language was very terse, perhaps because of the controversy surrounding the issue at the Constituent Assembly, especially about whether the new institution should be judicial. In the end, it was not organized as part of

 Decree no. 22.132, 25th Nov. 1932. These boards and commissions of conciliation are not unique to Brazil, as Mexican labor history has shown. Likewise, there are similar institutions in other countries such as Colombia and Chile.  The best-documented work on this subject is by Samuel Fernando de Souza, “‘Coagidos ou subordinados’”.  Regina de Moraes Morel; Ângela de Castro Gomes and Elina G. da Fonte Pessanha (eds.), Sem medo da utopia: Evaristo de Moraes Filho, arquiteto da Sociologia e do Direito do Trabalho no Brasil (São Paulo: LTr, 2007), 69 – 73.  Article 122. Constitution of the Republic of the United States of Brazil (16 July 1934), apud Ligia Lopes Fornazieri, Entre conflitos e debates: a construção dos direitos trabalhistas no Brasil (1934 – 1945). Thesis (masters in History) – IFCH-Unicamp, Campinas, 2014, 19 – 20. The rest of this paragraph is based on that judicious study.

1 Historiography of a “Minor Tribunal”

25

the Judiciary, but within the Executive branch, and structured with equal representation. It included several innovations, which is why the new Labor Minister, Agamenon Magalhães, formed a committee to draft a blueprint for organizing the new courts. However, it seems that the burden was placed exclusively on the department’s Technical Consultant, Oliveira Vianna, a major supporter of the Labor Courts during the Constituent Assembly and responsible for issuing opinions to the Ministry of Labor on matters related to conflicts between workers and employers.¹⁶ Until 1937, when a coup established the Estado Novo, there was serious opposition to Oliveira Vianna’s draft bill, particularly with regard to three points: the effectively judicial nature of the Labor Courts; judges who represented employers and employees, justified on the basis of the corporatist logic of representation of interests, which was already being practiced by the Boards and Commissions after 1930; and the normative power of the Labor Courts, that is, their authority to create rules that regulated labor relations (wage and labor conditions) when collective bargaining failed. Behind the questions put forth as technical and doctrinal, there was clear political antagonism spearheaded by São Paulo congressmen openly opposed to the Vargas administration, which they accused of usurping the prerogatives of the Legislative Branch. As Ligia Fornazieri has aptly demonstrated, the draft bill prevailed largely intact in the Decree-Law. Its promulgation was announced during the First of May celebrations in 1939, at a time when there was no legislative power and political centralization was strong, so much so that the state governors were appointed by Vargas.¹⁷ In a counterfactual exercise, if the constitutional order had been maintained, the legislative debates prior to 1937 suggest that the Labor Courts would have become a very different institution in which voluntary arbitration of collective disputes (dissídios coletivos) predominated as it did in other countries, which we will have the opportunity to ascertain.¹⁸ According to the 1939 decree, the Conciliation and Arbitration Boards were maintained, presided by an individual with a Bachelor of Laws degree appointed by the president, thereby giving rise to the labor judiciary. As for the Mixed Conciliation Commissions, there is no record of their fate, but is likely that they ceased to exist because they did not function in practice and the Labor Courts absorbed their duties. The Regional Labor Councils (Conselhos Regionais do Trabalho) were the second instance for dealing with appeals to decisions regarding

 Magda Barros Biavaschi, O Direito do Trabalho no Brasil (São Paulo: LTr, 2007).  Decree no. 1.237, 2nd May 1939.  Fornazieri, Entre conflitos e debates.

26

1 Historiography of a “minor tribunal”

individual complaints taken before the Conciliation and Arbitration Boards. Besides, the Councils conciliated and arbitrated collective claims from one or more states within the Brazilian federation. Representatives were appointed by the federations of employees and employers and designated by the president. The highest appellate body was the National Labor Council (Conselho Nacional do Trabalho), also with representation from both sides, initially four for employees and employers, chosen by the Ministry of Labor. The system known to this day as the Labor Courts came into operation on 1st May, 1941, two years before the Consolidation of Labor Laws (Consolidação das Leis do Trabalho, CLT) of 1943. The CLT systematizes the labor laws that were already extant in the country, giving them a new organic structure and strength, including symbolic power. This is because the CLT has become the statute that embodies the very idea of labor rights, as well as the link between Brazilian workers and the State. Its jurisdiction initially included almost solely urban workers, at a time when those working in rural activities represented the clear majority of workers in the country. However, the CLT is of indisputable importance for all groups of workers who want to be included among those who enjoy the rights guaranteed “by law.” It was precisely because of the CLT that the Labor Courts first underwent changes by altering their makeup. However, the most important change would only come with the 1946 Constitution, when the Councils became Courts (the Tribunal Superior do Trabalho, or Superior Labor Court – TST and the Tribunal Regional de Trabalho, or Regional Labor Court – TRT). It was then that the Labor Courts ceased to be administrative and subordinate to the Executive branch and became a special and independent arm of the Judiciary. Between 1946 and the twenty-first century, the most significant changes were the elimination of lay judges in 1999 and the limitation of the normative power in 2004, as shall be seen. For several decades, the Labor Courts retained basically the same structure, whose essential characteristics were as follows: equal representation, the principles of being oral and free of charge, conciliation, compulsory arbitration and normative powers. In general, these are the best known and constantly repeated aspects of the Labor Courts but in this book will be given a well-deserved indepth empirical and analytical approach, particularly regarding their controversial normative powers. In short, the Labor Courts were created to conciliate and arbitrate labor disputes through the legal regulation of individual and collective disputes (dissídios individuais e coletivos). Their creation was part of the corporatist project. A limited number of private entities, such as trade unions and employers’ associations, have a monopoly on representing broad swathes of society with powers delegated by the State. As a rule, the institutional arrangement is tripartite (capital,

1 Historiography of a “Minor Tribunal”

27

labor and State) and hierarchical, with the objective of achieving social peace and serving the public interest, rising above individual private interests.¹⁹ The Labor Courts would become a key institution in this corporatist framework.

II When they were first established, the Labor Courts were still a “Minor Tribunal” and “were of little value,” according to the reminiscences of a former employee of the first Conciliation and Judgment Board (Junta de Conciliação e Julgamento) of the city of Jundiaí, São Paulo.²⁰ Scarce resources, ignorance of the law and the potential of the courts, both among workers and among jurists, as well as territorial coverage limited to a few major cities contributed to the initially poor image of the Labor Courts. However, the characteristics intrinsic to this special branch of justice were mainly responsible for what Ângela de Castro Gomes called the “culture of discredit” in labor law. From the outset, it was subordinate to the Ministry of Labor, aimed at ordinary citizens and attached to the principles of orality, informality, equal representation, being free of charge and conciliation between the parties.²¹ The furnishings and spatial organization of the courtrooms formed a very different setting from the so-called ordinary courts. When the Board for Fortaleza, Ceará, was established in northeastern Brazil, in the words of a former clerk of that institution, “things were supposed to be equal, the table where the employer and the employee sat, and the table where the judge sat were all the same height, were not to be higher, no, it was like it was all equal.” ²² The simplicity of the proceedings, the lack of meticulous planning of spatial considerations and the sharing of power – “as if it were equal” – did not display symbols

 Here, corporatism is an adaptation of the concept formulated by Philippe C. Schmitter. “Still the Century of Corporatism?.” In Fredrick B. Pike e Thomas Stritch (eds.), The New Corporatism: Social-Political Structures in the Iberian World (London: University of Notre Dame, 1974, 93 – 95). See also James Q. Whitman, “Of Corporatism, Fascism and the First New Deal,” The American Journal of Comparative Law, 39 (1991), 748 – 749.  Statement from Alcina Rossi Noronha, given on 9th Mar 1998, apud Rinaldo J. Varussa, Trabalhadores e a construção da Justiça do Trabalho no Brasil (décadas de 1940 a 1960) (São Paulo: LTr, 2012), 31– 32.  Ângela de Castro Gomes. “Retrato falado: a Justiça do Trabalho na visão de seus magistrados.” Estudos Históricos, Rio de Janeiro 37 (1) (2006).  Statement from Olga Nunes da Silva, given on 23rd June 2006 to the Arquivo da Justiça do Trabalho (Fortaleza, CE), apud Maria Sângela de Sousa Santos Silva, A Justiça do Trabalho e os trabalhadores em Fortaleza (1946 – 1964) (Fortaleza: Premius, 2013), 136 (emphasis mine).

28

1 Historiography of a “minor tribunal”

of prestige and distinction compatible with the traditional honorific values of the judiciary as a whole. Their culture of discredit has clearly had a profound effect on the perception of the value and significance of the Labor Courts and their records as a research source: documents repeatedly considered to be of no historical value because they arose from the demands of ordinary citizens, prosaic situations, minor day-to-day labor struggles lacking in major events or great personalities, resulting in small compensation. As a rule, redress for breached rights could be converted into some sort of financial compensation, usually a small amount. In the field of the Law itself, there was a clear division of jurisdictions, prestige and power among its different branches. According to a statement from Arnaldo Süssekind, whose career ranged from assistant clerk at the National Labor Council (CNT) in 1938 to becoming one of the architects of the CLT and heading the Labor Ministry under the dictatorial government of military president Castelo Branco (1964– 1967): for a long time, some judges – not all, of course, perhaps not even the majority, but many – viewed the Labor Courts as a second-class court, precisely because they fell outside the sphere of the Judiciary. Later on [1946], not even its inclusion in that branch changed the derogatory view of a court in which employees and employers “judged.”²³

This perception was not limited to the Labor Courts in Brazil, because Labor Law as a whole was downgraded in the tradition of legal thinking. From its inception in other countries in the latter decades of the nineteenth century until the neoliberal wave of the 1990s, that institution was the target of negative reactions and rejection within the world of the Law. It was viewed as a “bastard” branch or twig bearing little fruit in the field of legal studies, without any autonomy within the “sciences” that lend it their basic concepts, such as Economics and Sociology. According to the paternalistic condescension attributed to it, Labor Law was meant for “common folk,” comprising a “class law,” and therefore accused of partiality. Supposedly, because it adhered to facts, it was not guided by any of the logical-formal rationality attributed to other areas of the Law. Its rules were said to obey definite, concrete, factual and contingent objectives, thus lacking the universal, necessary and abstract principles of the Law “per se.” In short,

 Ângela de Castro Gomes; Elina G. da Fonte Pessanha; Regina de Moraes Morel (eds.), Arnaldo Süssekind: um construtor do direito do trabalho (Rio de Janeiro: Renovar, 2004), 69.

1 Historiography of a “Minor Tribunal”

29

a traditional legal culture denied Labor Law any specificity within the realm of the Law.²⁴ However, it would be simplistic to ascribe solely to the legal world responsibility for the tremendous and long-standing neglect of labor cases as research sources, as well as the very history of the Labor Courts. The tendency to undervalue these sources and institutions was also deeply ingrained in the work of historians and social scientists. This could have resulted from the supposition that labor laws and courts were respectively mere replicas of the Labor Charter (Carta del Lavoro) and Magistratura del Lavoro of Fascist Italy, a question that will be examined in detail in chapter 3.²⁵ For now, it can be considered that it was indeed in the historical context of the Estado Novo dictatorship that the Labor Courts took their first steps amid a legislative vacuum. As we have seen, the closing of the Brazilian Congress interrupted debates that offered a different institutional design for labor courts, according to a version that proclaimed itself to be “liberal” and therefore stripped of “fascist” garb. The problem is that the “origin myth” of the Labor Courts has replaced historical explanations. There is a long-standing and widely held theory that the laws and legal apparatus in Brazil were merely ornamental, a refined but insubstantial façade, as well as being useless and toothless when dealing with workers’ everyday problems. Thus, legislative efforts and the construction of these political institutions were believed to be much more the result of an unequivocal governmental intention to “manipulate” the workers, trying to make them believe in the “good intentions” of the post-1930 regime, than a real political experiment, certainly guided by the ideological directives of a historical period in which corporatism and its ideals of social harmony were sought and valued as a political strategy and architecture then conceived as modern.²⁶

Furthermore, the bureaucratic rigidity of a judicial machine considered elephantine, the employers’ disrespect for legal norms and the fragility of public power

 One of the founding fathers of neoliberalism took a highly radical view: Friedrich A. von Hayek, Droit, legislation et liberté: une nouvelle formulacion des principes liberaux de justice et d′economie politique (Paris: Université de France, 1986). For a lucid critique of that position, see Alain Supiot, Critique du droit du travail (Paris: Quadrige/PUF, 1994).  For a critique of this assessment, without failing to aptly demonstrate the fascist inspiration of Brazilian labor laws, see Hall, “Corporativismo e fascismo.”  Ângela de Castro Gomes and Fernando Teixeira da Silva, “Os direitos sociais e humanos dos trabalhadores no Brasil: a título de apresentação.” In Idem, A Justiça do Trabalho e sua história: os direitos dos trabalhadores no Brasil (Campinas: Editora da Unicamp. 2013), 32.

30

1 Historiography of a “minor tribunal”

when overseeing the enforcement of the laws were said to be among the possible explanations for the little value ascribed to the Labor Courts and their sources. However, there is a reason for all this that I consider strong enough to obstruct the progress of studies on the subject. Various interpretations of labor laws and courts are still excessively tied to the legal-institutional framework of State intervention. The Labor Courts’ demobilizing goals and principles, social legislation and corporatism as a whole were supposed to have been fully realized, absolutely subjecting workers to class-dominated structures that were always endorsed by State control.²⁷ According to more scathing assessments, the Labor Courts stripped the unions of “the initiative with regard to working conditions and prevented the outbreak of conflicts at the only level – that of the company – favorable to the development of a strong grassroots movement.”²⁸ Thus, capital-labor conflict would irreversibly shift from the “factory floor” to the legal arena, thereby “consolidating bourgeois democracy,” inasmuch as the world of laws, rights and justice allowed more sophisticated class-dominating devices.²⁹ In this process of displacement, the “social question” would become a merely legal-technical issue, with “rules only accessible to specialists,” depriving the workers of the capacity to intervene in the judicial arena.³⁰ The only possible outcome would be the sapping of the workers’ know-how. The control they could exert over the workplace, based on their knowledge of the factory’s daily life, would give way to the control of the ruling class through the production of knowledge and powers exercised in the legal-ideological field. In the field of collective bargaining, as argued by a prominent jurist, Luiz Roberto Puech, whose performance in the courts will be followed in the second part of this book, courts endowed with normative competence along the lines of

 For a more detailed analysis of this subject, see Fernando Teixeira da Silva and Hélio da Costa, “Trabalhadores urbanos e populismo: um balanço dos estudos recentes.” In O populismo e sua história. Debate e crítica, edited by Jorge Ferreira (Rio de Janeiro: Civilização Brasileira, 2001); Sidney Chalhoub and Fernando Teixeira da Silva, “Sujeitos no imaginário acadêmico: escravos e trabalhadores na historiografia brasileira desde os anos 1980.” Cadernos AEL, Campinas, 26 (14) (2009).  Robert Rowland, “Classe operária e Estado de compromisso (origens estruturais da legislação trabalhista e sindical).” Estudos CEBRAP, São Paulo, 48 (1974), 32.  Vera Lúcia Vieira, Cooptação e resistência: trabalhadores de São Paulo de 1945 a 1950 (São Paulo: PUC, 1989), 218. The same conclusion is found in a study in the field of Law on class representation: “a Justiça do Trabalho se distancia, mais e mais, dos interesses populares, servindo às classes dominantes sob a égide da democracia burguesa.” Salete Maria Polite Maccalóz, Representação classista na Justiça do Trabalho (Rio de Janeiro: Forense, 1984), 25.  Kazumi Munakata, A legislação trabalhista no Brasil (São Paulo: Brasiliense, 1984), 105.

1 Historiography of a “Minor Tribunal”

31

Fascist Italy’s Magistratura del Lavoro would prevent direct action by the workers. This was because it was up to the judges to implement wage rises and establish new working conditions through a judicial decision (normative power).³¹ From the perspective of the practical effects of judicial action on workers’ lives, according to the sociologist Armando Boito, compulsory arbitration would transform collective bargaining and contracting “into real rituals, devoid of any economic significance for the workers.”³² In the view of Maria Célia Paoli, whose research has made a major contribution to revitalizing studies of workers in Brazil, conflict arbitration and normative power meant “The death of political life and aspirations for an active presence of the unions, based on conflicts and rules of sociability.” The labor courts would not only turn against the “liberal principles of justice” but also offered “weapons against the creation of a public, participatory space for the construction of a fair measure in social conflicts.”³³ According to this interpretation, the Labor Courts would have helped to prevent the trade union movement’s self-determination. More recently, in a study that also sparked fresh debate on the subject, the historian John French presented a grim picture of the Labor Courts: the story was not much more promising for those workers who, in good faith, took their grievances to the labor courts. Administrative inefficiency, overcrowded courts and a tendency towards “conciliation” have often produced what could be termed “discount justice.” Even when he won a legal case, for example, a Brazilian worker was forced to compromise with his bosses, obtaining much less than his legal rights. Otherwise, he would have to face endless delays due to the company’s appeals.³⁴

 Luiz Roberto de R. Puech, “Evolução do sindicalismo no Brasil.” Revista de Estudos SócioEconômicos, São Paulo, 7 (1962), 8, apud José Albertino Rodrigues, Sindicato e desenvolvimento no Brasil (São Paulo: Símbolo, 1979), 113.  Armando Boito Junior, O sindicalismo de Estado no Brasil: uma análise crítica da estrutura sindical (São Paulo: Hucitec, 1991), 49.  Maria Célia Paoli. “Os direitos do trabalho e sua justiça.” Revista USP, São Paulo 26 (1994), 107. For a harsh assessment of the regulatory powers of the Labor Courts, see Arion Sayão Romita, “Justiça do Trabalho: produto do Estado Novo.” In Repensando o Estado Novo, edited by Dulce Pandolfi (Rio de Janeiro: Editora da FGV, 1999).  John D. French, Afogados em leis: a CLT e a cultura política dos trabalhadores brasileiros (São Paulo: Editora da Fundação Perseu Abramo, 2001), 19. It should be noted that French and Maria Célia Paoli present a more nuanced view of the law and the courts. For both authors, demands and mobilizations formed the social foundations that gave life to the labor laws and some efficiency to the labor courts.

32

1 Historiography of a “minor tribunal”

Based primarily on statements and works by jurists and observations by trade union activists, French adds other negative aspects to his assessment. The formation and social origins of professional judges inclined them to defend the employers’ interests rather than those of the employees, leading them to an exacerbated legalism to the detriment of considerations of equity, based on concrete cases. Lay judges, who were supposed to counterbalance this tendency of the professional judges, were chosen by the Minister of Labor from among the “most docile workers.” Concerned with their own social mobility, they would respect the decisions of professional judges, even voting against the interests of their class and thus undermining the tripartite nature of the labor court system.³⁵ Thus, the limitations of the legal arrangement constructed after 1930 had already, and not unaptly, been pointed out by historians and will be the subject of analysis throughout this book.³⁶ The problem is that, for some time, the history of the Labor Courts was more often mentioned than studied by those historians. There have been just a few notable incursions by professionals and academics from the field of the Law, who were primarily and understandably concerned with the predominant legal, organizational and doctrinal aspects of that institution’s history.³⁷ However, that situation has been changing somewhat in recent years.

III Given the increasing scholarly interest in the history of the Labor Courts, there is good reason for optimism. As we have seen, this is the result of a radical change in the perception of the place of the legislation and its “application” in Brazil. Several studies have shown that the law and the courts were a force field in which different actors moved and appropriated the available institutional resources, but those resources were constantly being recreated by the social subjects

 John French, Drowning in Laws: Labor Law and Brazilian Political Culture (Chapel Hill and London: The University of North Caroline Press, 2004), 46 – 53.  For a thoughtful assessment of the ambiguities of the Labor Courts in recent times, based on corresponding in-depth empirical analysis, see Paulo André Setti, Merecimento e eficiência: performance de advogados e juízes na Justiça do Trabalho em Campinas (Campinas: Centro de Memória da Unicamp, 1997).  See Amauri Mascaro Nascimento; Irany Ferrari; Ives Gandra Martins, História do trabalho, do Direito do Trabalho e da Justiça do Trabalho (São Paulo: LTr, 1998); Julio Assumpção Malhadas, Justiça do Trabalho: sua história, sua composição, seu funcionamento (São Paulo: LTr, 1998); Beatriz Bulla et al. (eds.), Justiça do Trabalho: 70 anos de direitos (São Paulo: Alameda, 2011).

1 Historiography of a “Minor Tribunal”

33

involved.³⁸ Thus, if in the symbolic realm of the representation of power, the Labor Courts signified the attempt to create a protective image of the Sate among workers, it could not be invariably arbitrary, overlooking convincing witnesses favorable to the workers, disregarding the established forms of law or merely bolstering commonly held ideals.³⁹ Recent studies, some of which will be discussed later, show that, at different times, decisions were largely favorable to the workers who, in their turn, instrumentalized the legal resources intended to protect their rights. Even during times of political oppression, such as the Estado Novo, when some laws were formulated to benefit the employers, punish workers and suspend hard-won rights, the labor courts were an arena in which workers were not always defeated, nor were employers always the victors.⁴⁰ Furthermore, the perception emerged that labor relations should be regulated by publicly defined parameters.⁴¹ In other words, through the Labor Courts, experiences in the private sphere of production could become public, since the rule of law ought to override the primacy of the market. In the words of a judge from Juiz de Fora, Minas Gerais, in southeastern Brazil, the Labor Courts aimed to guarantee workers “the right to not fear” – in other words, the right to demand their rights without fear of private reprisals.⁴² To legitimize power, the judiciary could not dispense with logical criteria of equality, created by laws designed to curb the employers’ excesses.⁴³ The legal paraphernalia and juridical apparatus were triggered by the workers because they understood that the arbitrary power of the world of production could find limits in the field of the  In this regard, in a different context, see Sidney Chalhoub Visões da liberdade: uma história das últimas décadas da escravidão na Corte (São Paulo: Companhia das Letras, 1990), 25.  Fernando Teixeira da Silva. A carga e a culpa. Os operários das docas de Santos: direitos e cultura de solidariedade, 1937 – 1968 (São Paulo: Hucitec; Santos: Prefeitura Municipal de Santos, 1995), 99 – 103.  Indeed, in 1942, the judgments of the Regional Labor Council of São Paulo, for example, largely favored the employers, according to Joel Wolf, Working Women, Working Men. São Paulo and Rise of Brazil’s Industrial Working Class, 1900 – 1955 (Durham: Duke University Press, 1993), 89 – 90. However, in dozens of Labor Court cases involving the Companhia Docas de Santos and its employees, the port company lost a little over half of the lawsuits it filed. Silva, A carga e a culpa, 99 – 103. Similar findings can be seen in Jairo Queiroz Pacheco, Guerra na fábrica: o cotidiano operário fabril durante a Segunda Guerra. O Caso de Juiz de Fora-MG. Thesis (masters in History) – FFLCH-USP, São Paulo, 1996, 121– 148.  Alexandre Fortes, “Como era gostoso meu pão francês: a greve dos padeiros de Porto Alegre (1933 – 1934).” Anos 90, Porto Alegre, 7 (5) (1997).  Pacheco, Guerra na fábrica, 118.  Regarding these issues, cf. E. P. Thompson, Senhores e caçadores (Rio de Janeiro: Paz e Terra, 1987).

34

1 Historiography of a “minor tribunal”

Law, giving rise to what Maria Célia Paoli has termed the “symbolic belief in rights.”⁴⁴ In short, instead of appearing as victims or a mass maneuverable by the employers’ sinister orchestration endorsed by the State, the Law and justice played an active role in shaping the working class, creating among them a “legal consciousness of class.” ⁴⁵ According to Ângela de Castro Gomes, social and labor laws, founded on positive law, structured a normative power that could be exploited by workers, thus disproving the deep-seated conception that it was “façade legislation.”⁴⁶ We must therefore evaluate corporatism in all its ambiguity: as an authoritarian project but also an institutional arrangement that, in practice, has not always eliminated the mobilization and organization of workers. In addition, it was open to representation of interests, depending on the situations and political-institutional frameworks involved.⁴⁷ Whatever the diagnosis we make of the institution’s effectiveness and legitimacy, the fact is that the Labor Courts have been gaining credibility in academia. Following the growing interest in the social history of this subject, in-depth studies of numerous individual and collective disputes involving the most varied professional groups have considered the wide-ranging situations and expectations that have led workers, employers and unions to turn to the Labor Courts as a space for conflict and negotiation. These studies have revealed a significant and hitherto unsuspected range of problems and experiences, showing the enormous potential for research opened up by labor cases. This documentation allows the analysis of the internal dynamics of the courts, which includes, among others, the following aspects: doctrinal formulations and the legal order of labor relations; the legal forms of social control; the performance of the so-called “professionals of justice” (lawyers, judges and prosecutors); conflicts of jurisdiction and division of labor between different judicial bodies; the interpretation of legal norms and jurisprudence; the practical

 Maria Célia Paoli, “Os trabalhadores urbanos na fala dos outros. Tempo, espaço, e classe na história operária brasileira.” In José Sérgio Leite Lopes (ed.), Cultura e identidade operária (Rio de Janeiro: UERJ/Museu Nacional/Marco Zero, 1987).  Maria Célia Paoli, Labor, Law and State in Brazil: 1930 – 1950. Dissertation (PhD in History) – Birkbeck College, University of London, 1988, 437– 440.  Ângela de Castro Gomes, “Questão social e historiografia no Brasil do pós-1980: notas para um debate.” Estudos Históricos, Rio de Janeiro, 34 (2) (2004), 182.  Renato R. Boschi and Maria Regina Soares de Lima. “O Executivo e a construção do Estado no Brasil: do desmonte da Era Vargas ao novo intervencionismo regulatório.” In Luiz Werneck Vianna (ed.), A democracia e os três poderes no Brasil (Belo Horizonte: Editora da UFMG; Rio de Janeiro: IUPERJ/FAPERJ, 2002), 195.

1 Historiography of a “Minor Tribunal”

35

and symbolic effectiveness of the courts; language, statements and legal canons; and the conformation of the laws to varied circumstances. From a less “internalist” perspective on the “legal field” – to use expressions favored by Pierre Bourdieu⁴⁸ – labor lawsuits can also indicate a broader range of social practices and relations, such as everyday experiences in the workplace, in unions, in collective mobilizations, in the private sphere and in gender relations, permitting the analysis of how shared customs and practices form a solid basis for the struggle for rights. Through these lawsuits, we can not only understand how the Labor Courts operate but also the different viewpoints on their legitimacy and feelings of compensation, gratitude and frustration regarding judicial decisions or reparations. If we focus on the details, the lawsuits are a rare form of access to the workers’ discourse, albeit filtered and distilled by the language and exercise of judicial power in formal and often oppressive situations. Studies covering longer periods and those with broader geographic scope can engage in comparative analyses of several professional categories, multiple types of action taken by the actors involved in the cases, regional peculiarities, different meanings attributed to rights and labor courts, as well as continuities and discontinuities during different political circumstances. These questions, presented in a merely enumerative summary, therefore fill a gap in the field of the Social History of Labor. Therefore, I am giving a brief overview of some recent contributions on the subject. Labor legislation did not give equal treatment to rural workers, but those actors have created loopholes in the Labor Courts by demanding and achieving a series of rights, especially since the mid-1950s in several parts of Brazil. The political and social scope of the use of the courts by farm workers will be dealt with in detail in chapter 7, but it is worth stating briefly that one of its most striking effects, though highlighted seldomly by historians, was to contribute decisively, alongside the expansion of worker-friendly rural legislation, to the change of the longstanding system of oppression based on the colonato, a rapid process that took place between 1950 and 1970.⁴⁹

 Pierre Bourdieu, “A força do direito: elementos para uma sociologia do campo jurídico.” In Idem, O poder simbólico (Rio de Janeiro: Bertrand Brasil, 2007).  See Ângelo Priori, O protesto do trabalho: história das lutas sociais dos trabalhadores rurais do Paraná: 1954 – 1964 (Maringá: Eduem, 1996); Clifford Andrew Welch, A semente foi plantada: as raízes paulistas do movimento sindical camponês, 1924 – 1964 (São Paulo: Expressão Popular, 2010); Verena Stolcke, Cafeicultura: homens, mulheres e capital, 1850 – 1980 (São Paulo: Brasiliense, 1986); Margarida Maria Moura, Os deserdados da terra: a lógica costumeira e judicial dos processos de expulsão e invasão da terra camponesa no sertão de Minas Gerais (Rio de Janeiro: Bertrand Brasil, 1988); Frank Luce, “O domínio da lei na região do cacau: a Justiça do

36

1 Historiography of a “minor tribunal”

Within the sphere of factory production, it is possible to conduct a detailed analysis of the ways in which workers appropriated the Labor Courts by extracting their demands for rights from the courts’ legal language, thereby expressing their conceptions of justice.⁵⁰ Furthermore, the court records are an excellent source for investigating the relationship between the changes in the work process and the workers’ experiences inside the factories. Researchers can analyze intra-company disputes and competition, changes in the production structure, methods for “rationalizing” work, factory discipline, gender relations in the workplace, the interface between large industry and housework, the collective meanings of individual lawsuits and the extra-productive relationships of solidarity between friends and relatives.⁵¹ An alternative provided by studies of labor lawsuits is the understanding of the workers’ notions of the law, rights and the judiciary when going to the Labor Courts during the processes of urbanization, industrialization and migration. One could examine the motives that led the parties in the dispute to resort to the Labor Courts, as well as the strategies of workers, trade unions, labor acti-

Trabalho e o Estatuto do Trabalhador Rural.” In A Justiça do Trabalho e sua história, edited by Ângela de Castro Gomes and Fernando T. Silva; Antonio Torres Montenegro, “Trabalhadores rurais e Justiça do Trabalho em tempos de regime civil-militar.” In Ibid.; Marcus Dezemone, Memória camponesa: conflitos e identidades em terras de café. Fazenda Santo Inácio – Trajano de Morais – RJ (1888 – 1987). Thesis (masters in History) – PPGH-UFF, Niterói, 2004; Christine Rufino Dabat. “Uma ‘caminhada penosa’: a extensão do direito trabalhista à zona canavieira de Pernambuco.” Clio, Recife, 2 (26) (2008).  Pacheco, Guerra na fábrica.  Studies on the footwear industry in the city of Franca, São Paulo, have proven to be seminal in the analysis of these aspects. See Samuel Fernando Souza, Na esteira do conflito. Trabalhadores e trabalho na produção de calçados em Franca (1970 – 1980). Thesis (masters in History) – PPGH-UNESP, Franca, 2003; Vinícius de Rezende. Vidas fabris: trabalho e conflito social no complexo coureiro-calçadista de Franca (SP), 1950 – 1980 (São Paulo: Alameda, 2017); Alexandre Marques Mendes. Classe trabalhadora e Justiça do Trabalho: experiências, atitudes e expressões do operário do calçado (Franca-SP, 1968 – 1988) (Franca: Cristal, 2009). Regarding the relationship between manufacturing discipline and the Labor Courts, see Antonio Luigi Negro and Edinaldo Antonio O. Souza, “Que ‘fosse procurar seus direitos’. Justiça do Trabalho e poder disciplinar na Bahia: insubordinação operária, autoridade patronal e mediação judicial (1943 – 1948).” In Gomes and Silva, A Justiça do Trabalho e sua história; Edinaldo Antonio O. Souza, Lei e costume: experiências de trabalhadores na Justiça do Trabalho. Recôncavo Sul, Bahia, 1940 – 1960 (Salvador: Edufba, 2012.) Regarding gender, disciplinary power and the courts, see Benito Bisso Schmidt, “A sapateira insubordinada e a mãe extremosa. Disciplina fabril, táticas de gênero e luta por direitos em um processo trabalhista (Novo Hamburgo/RS, 1958 – 1961).” In Gomes and Silva, A Justiça do Trabalho e sua história; Alessandra Belo Assis Silva, Os trabalhadores têxteis na Justiça do Trabalho: luta por direitos em Juiz de Fora na década de 1950 (Juiz de Fora: Aquela Editora, 2016).

1 Historiography of a “Minor Tribunal”

37

vists, Catholics and Communists, lawyers and employers in the process of increasing the judicialization of class conflicts, to investigate the nature and results of labor disputes in detail.⁵² With regard to the analysis of the legal field, following the day-to-day activities of workers, lawyers, trade unions and judges also allows a better understanding of the flow of cases in the courts, the application of the law by Labor Courts, concepts of justice and the professional behavior of independent and union lawyers, the workers’ expectations of legal agreements and judgments, of procedural rites, of trade union policy regarding the provision of legal services, of the recalcitrant position of employers in the face of Labor Courts’ decisions and of the limits of the courts in the defense of the “weaker party” (“hyposufficient” in legal jargon).⁵³ More and more, historians are also evaluating the impact of the CLT on labor relations and, more broadly, on society as a whole. One finding of the analysis of court cases is that the workers’ lawsuits were part of the unions’ more extensive and complex strategies to shift the balance of power in industrial relations. Thus, as I will examine extensively later, the lawsuits were in no way incompatible with the direct negotiation and collective mobilization of workers. The outbreak of strikes and lawsuits in the Labor Courts were supplementary practices. The massive recourse of workers to the courts helped to legitimize their organization and struggle for labor rights.⁵⁴ Addressing different means of hiring the workforce were always one of the most important aspects of the Labor Courts’ activities, since the nature of the employment relationship and, particularly, proof of its existence, have always been

 Three studies were particularly successful in the investigation of these aspects: Varussa, Trabalho e legislação; Larissa R. Corrêa, A tessitura dos direitos: patrões e empregados na Justiça do Trabalho, 1953 a 1964 (São Paulo: LTr, 2011); Clarice G. Speranza, Cavando direitos: as leis trabalhistas e os conflitos entre os mineiros de carvão e seus patrões no Rio Grande do Sul (1940 – 1954) (Porto Alegre: Anpuh, Oikos, 2014).  This was done by Paulo André Setti, who takes an anthropological approach to the workings of the Labor Courts, focusing on metalworkers in the city of Campinas, São Paulo, between the late 1980s and early 1990s. Setti, Merecimento e eficiência.  See Oliver Dinius, “Brazilian Labor Courts and Industrial Relations under State Capitalism.” Paper presented at the European Social Science History Conference in Lisbon on 29th February 2008; José Sérgio Leite Lopes, A tecelagem dos conflitos de classe na “cidade das chaminés.” (São Paulo: Marco Zero, 1988); Regina M. Morel and Wilma Mangabeira, “‘Velho’ e ‘novo’ sindicalismo e uso da Justiça do Trabalho: um estudo comparativo com trabalhadores da Companhia Siderúrgica Nacional.” Dados, Rio de Janeiro, 1 (37) (1994); Larissa Corrêa, A tessitura dos conflitos; Alisson Droppa, Direitos trabalhistas: legislação, Justiça do Trabalho e trabalhadores no Rio Grande do Sul, 1958 – 1964. Dissertation (PhD in History) – IFCH/UNICAMP, Campinas, 2015.

38

1 Historiography of a “minor tribunal”

sensitive problems for Labor Law in its efforts to define what labor is and who is a worker. In other words, this means discerning who merits legal and juridical protection. From this perspective, studies of the analysis of the phenomenon of outsourcing are making progress, even for periods when that term did not even exist as a strategy for employers to circumvent legal norms.⁵⁵ Similarly, dealing with a more recent period in which labor market and relations were more flexible,⁵⁶ research on the coercion used by labor judges to prevent slave-like labor, which undermines workers’ social and human rights, is gaining ground.⁵⁷ The origins of the judicialization of labor relations in Brazil, begun in the 1920s and implemented in the 1930s, form part of studies that demonstrate how certain practices, doctrines and jurisprudence influenced the process of setting up the labor court system during the Estado Novo. Among other aspects, these studies reveal that Labor Law underwent a long period of development in Brazil that did not begin in the still-canonic year 1930. Institutions created before the Vargas era put down roots in the political and juridical discourse and practices of Getulist corporatism.⁵⁸ The use of oral statements has also been of seminal importance, particularly interviews and surveys used to determine the sociological profiles of lawyers, jurists, judges and prosecutors, seeking a better understanding of family histories and different processes of intellectual and professional development.⁵⁹

 Vinícius de Rezende, “A regulamentação das relações de trabalho na ‘capital do calçado’ (Franca-SP, 1940 – 1980).” In Gomes and Silva, A Justiça do Trabalho e sua história; Magda Barros Biavaschi, “Justiça do Trabalho e terceirização: um estudo a partir dos processos judiciais.” In Ibid.  Adalberto Moreira Cardoso, A década neoliberal e a crise dos sindicatos no Brasil (São Paulo: Boitempo, 2003); Adalberto M. Cardoso and Telma Lage, As normas e os fatos: desenho e efetividade das instituições de regulação do mercado de trabalho no Brasil (Rio de Janeiro: Editora da FGV, 2007).  Ângela de Castro Gomes, “Justiça do Trabalho e trabalho análogo a de escravo no Brasil: experiências, limites e possibilidades.” In Gomes and Silva, A Justiça do Trabalho e sua história.  Souza, “Coagidos e subordinados”; Marcelo Antonio Chaves, A trajetória do Departamento Estadual do Trabalho e mediação das relações de trabalho (1911 – 1937) (São Paulo: LTr, 2012); Magda Barros Biavaschi, O Direito do Trabalho no Brasil (São Paulo: LTr, 2007); Fornazieri, Entre conflitos e debates.  See Luiz Werneck Vianna et al. (eds.), Corpo e alma da magistratura brasileira (Rio de Janeiro: Revan, 1997); Ângela de Castro Gomes; Regina M. Morel; Elina da F. Pessanha, “Perfil da magistratura do Trabalho no Brasil.” In Direitos e cidadania: justiça, poder e mídia, edited by Ângela de Castro Gomes (Rio de Janeiro: Editora da FGV, 2007); Regina M. Morel; Ângela de Castro Gomes; Elina G. de Fonte Pessanha (eds.), Sem medo da utopia; Regina M. Morel e Elina G. da Fonte Pessanha, “Magistrados do trabalho no Brasil: entre a tradição e a mudança.”

1 Historiography of a “Minor Tribunal”

39

In different ways, what all these studies show is that thorough research of Labor Court records and the use of oral sources may provide a deeper understanding of the relationships between workers, businessmen and the State. With a great empirical density, they have an analytical scope that is restricted to investigations still marked by generalizations that enshrine the State as the most important actor in historical transformations, or that deal with the subject without any empirical depth, being limited to a superficial treatment of the sources. It is important to stress that the sudden and recent emergence of this academic production on Labor Courts is not a phenomenon that is exclusively endogenous to the intellectual world. From this perspective, I will outline the Labor Courts’ current role in the field of labor and the Law, relating it directly to the focus on the subject in academic production. It is therefore necessary to think about the research carried out in universities amid the political and institutional meanings of labor law in specific historical contexts.

IV During the period beginning in 1979, when the Amnesty Law was passed, including the demise of the military dictatorship in 1985, ending in 1988 when a new constitution was ratified, a strong labor movement emerged in Brazil, especially in the southwestern states of São Paulo and Rio de Janeiro. The 1988 Constitution enshrined a new level of citizenship, expanding, protecting and perpetuating political, civil and social rights. Without fundamentally affecting the CLT, it redefined the Public Prosecutor’s Office (Ministério Público do Trabalho – MP) and thus the Labor Prosecutor’s Office (Ministério Público do Trabalho – MPT). As a branch of the MP, the MPT took on the role of protecting collective and individual rights and had the power to file “class action suits” in response to breaches of labor laws. Thus, among other responsibilities, the MPT started to work with the Labor Courts to control and repress practices that subjected workers to “modern slavery.” In the 1990s the Labor Courts suffered several onslaughts, including proposals for their elimination, as the winds of international neoliberalism were also blowing in Brazil. Nevertheless, on the whole, the institution was strengthened.

Estudos históricos, Rio e Janeiro, 37 (1) (2006); Ângela de Castro Gomes; Elina G. da Fonte Pessanha; Regina M. Morel (eds.), Arnaldo Süssekind; Ângela de Castro Gomes and Elina G. da Fonte Pessanha (eds.), Trajetórias de juízes. Porto Alegre: Alegre Poa, 2010.

40

1 Historiography of a “minor tribunal”

From that point on, Social Law and Labor Law became optimum and politically strategic instruments for defending all other rights, particularly human rights.⁶⁰ In December 2004, the Brazilian Congress approved Constitutional Amendment no. 45, which ended the so-called Judicial Reform that had been underway since 1992. This amendment introduced a fundamental change, since it expanded the Labor Courts’ jurisdiction to include “labor relations” instead of just “employment relations.” The institution started to deal with not only employed workers (de facto and de jure, in accordance with the actual conditions in which they work) but a very different professional category of workers providing services “in a non-subordinated manner” as occasional service providers, even the socalled underemployed.⁶¹ The number of Conciliation and Judgment Boards grew considerably for nine consecutive years (1986 to 1994), peaking in 1989 and 1993, when the Labor Courts actually began covering most of the nation’s territory, reaching the vast areas that Brazilians call the interior (outside of state capitals and major cities). The year 1993 marked the milestone of 202 new JCJs established, reflecting a growing demand for the Labor Courts that continued through the 1990s. The pace of growth of the JCJs resumed in 2004, with a fresh leap in 2005, shortly after the ratification of the 45th Amendment, which expanded the powers of the courts.⁶² These changes defy the reductionist academic definitions of the “working class” that are so dear to deterministic and evolutionary perspectives according to which peripheral countries follow the “stages” of development of the center of capitalism, where wage-earning workers were believed to predominate in a “pure” state. A deep-rooted teleological mindset still believes that “modern or contemporary” slavery, contract bondage, outsourcing, self-employment, domestic work, child labor and subsistence to be residual forms of labor exploitation not subordinated to the logic of capitalist commodification, which are therefore doomed to disappear. From a broader perspective, we can see that all these forms of work coexist and are often complementary. It was the perceived subalternity of

 See Ângela de Gomes, “Justiça do Trabalho e trabalho análogo a de escravo.”  Magda Biavaschi and Anita Lübbe, “Os memoriais e a preservação dos documentos da Justiça do Trabalho: revisitando a tabela de temporalidade dos documentos e processos trabalhistas arquivados.” Paper presented at the meeting of the Colégio de Presidentes e Corregedores dos Tribunais da Justiça do Trabalho in Aracajú, Sergipe, on 19th July 2006, 4.  Angela de Castro Gomes and Fernando Teixeira da Silva, “Labor Courts in Brazil”. This paper presents a detailed analysis of the expansion of the Labor Courts in time and space since the 1940s.

1 Historiography of a “Minor Tribunal”

41

the workers, that is, the “coercive commodification of their labor,”⁶³ which made the Labor Courts extend the concept of the working class into an arc that still seems rigid by academic standards. Whether the explosion of litigiousness is an essentially legal or social phenomenon remains an open question.⁶⁴ For those who argue that labor law is chiefly responsible for the huge outpouring of labor lawsuits, as a result of the expansion of rights and access to the courts, the following aspects are considered: the ease workers find in demanding their rights, detailed and profuse legislation, poor supervision of labor and the “lawsuit industry” fueled by lawyers avidly filling their own pockets.⁶⁵ When viewed as an eminently social phenomenon, however, freer access to the courts and the growing number of workers’ lawsuits stem primarily from the tremendous and increasing precariousness of working conditions and the “delegitimization of legal norms by the capitalists.”⁶⁶ Bound by the calculation of costs and benefits in periods of high inflation, employers make the Labor Courts a means of financing labor debts at lower interest rates than those charged by financial institutions.⁶⁷ However, there is no doubting the increasing judicialization of labor relations in Brazil, which, paradoxically, emerged in the context of neoliberal policies.⁶⁸ In recent years, nearly three million lawsuits have been filed annually, making Brazil the “record holder in terms of the number of labor lawsuits” according to the Superior Labor Court (TST), which admitted as much in the last decade.⁶⁹ The gigantism of the Labor Courts is evident in the amounts spent to maintain their structure, some 1.5 billion Brazilian reais (BRL) for the twelve months of 1995, while the Federal Court required BRL 900 million during this period.⁷⁰ However, the avalanche of labor court records does not give a clear indication

 Marcel van der Linden, Trabalhadores do mundo: ensaios para uma história global do trabalho (Campinas: Editora da Unicamp, 2013), 41.  See Adalberto Moreira Cardoso, “Direito do trabalho e relações de classe no Brasil contemporâneo.” In Vianna, A democracia e os três poderes.  “ALTERNATIVAS para diminuir o excesso de processos trabalhistas.” O Estado de S. Paulo, 25th February 2007.  Cardoso, “Direito do trabalho”; see also Márcio Pochmann, “Adeus à CLT? O ‘eterno’ sistema corporativo de relações de trabalho no Brasil.” Novos Estudos CEBRAP, São Paulo, 50 (1998).  Setti, Merecimento e eficiência, 164– 165.  Cardoso, A década neoliberal.  BRASIL, Ministério do Trabalho e Emprego – Fórum Nacional do Trabalho. Reforma sindical proposta de emenda à Constituição – PEC 369/05, constitutional amendment draft bill, apud Almir Pazzianotto Pinto, 100 anos de sindicalismo (São Paulo: Lex Editora, 2007), 227.  Setti, Merecimento e eficiência, 180.

42

1 Historiography of a “minor tribunal”

of the range of labor conflicts during that period, since the lawsuits are the tip of an immense iceberg, a rather small fraction of the daily struggles in the world of work, because many roads do not lead to the Labor Courts, such as fear of employer retaliation. The lawsuits seem to express more clearly the refusal of employers to comply with legally established obligations. From the standpoint of the courts’ effectiveness, the results appear to be satisfactory. In 1990, there were 193 professional judges on the Regional Labor Courts (TRTs); by 1999, that number had jumped to 315, although those figures seem to express much less a response to than the anticipation of the increased number of lawsuits.⁷¹ It is true that, since 1973, the ratio between lawsuits filed and cases tried points to reduced judicial effectiveness – in other words, judges’ decisions did not keep pace with the demand.⁷² In any case, two aspects must be considered. First, the influx of lawsuits filed is clearly faster than the flow of cases tried. Second, there are no salient differences between the 1980s and 1990s. In the former, over eight million cases were tried, while the lawsuits filed totaled a little over nine million (the ratio is 91 percent of cases tried to lawsuits filed). In the second decade, nearly twenty million were tried, against nearly twenty-one million lawsuits filed (the ratio here is 94 percent). Clearly, these percentages would be lower if we consider that the trials are not limited to lawsuits filed in the same year as the judgment, but also include those filed in previous years; in other words, these cases often drag on for a long time, limiting judicial effectiveness. However, data from the Conciliation and Judgment Board of Campinas, São Paulo, shows a positive balance in the total number of workers with resolved lawsuits. Between 1987 and 1990, there was a 61 percent increase in the number of workers who went to the Labor Courts in that city, while 86 percent had their disputes resolved.⁷³ Public opinion about the Judiciary Branch in Brazil reveals positive aspects of the Labor Courts. There is evidence that they enjoy more legitimacy than the ordinary courts, according to a survey conducted in 1997 by the Centro de Pesquisa e Documentação de História Contemporânea do Brasil (Center for Research and Documentation of Contemporary Brazilian History; CPDOC) and the Instituto de Estudos da Religião (Institute for Studies of Religion; ISER).⁷⁴ Twenty-two

 TRIBUNAL Superior do Trabalho. Movimento processual.  Cf. Cardoso, “Direito do trabalho.”  Setti, Merecimento e eficiência, 22.  CPDOC/ISER, “Lei, justiça e cidadania: direitos, vitimização e cultura política na região metropolitana do Rio de Janeiro (sinopse dos resultados da pesquisa)” (Rio de Janeiro, n.p., 1997); Mario Grynspan, “Acesso e recurso à justiça no Brasil: algumas questões.” In Justiça e violência, edited by Dulci Pandolfi et al. (eds.) (Rio de Janeiro: Editora da FGV, 1999), 99 – 113.

1 Historiography of a “Minor Tribunal”

43

percent felt that employers and employees receive equal treatment from the Labor Courts. The majority (44 percent) responded that employees were treated more harshly, while 24 percent felt employers were treated more severely. It is not surprising that, according to employers, they are treated more severely (56 percent versus 37 percent), while employees see themselves as most negatively affected (40 percent versus 28 percent). However, these figures change among workers who have already resorted to the Labor Courts, with the percentage believing employees to be most disadvantaged being lower (34 percent), with the number believing employers to be treated more severely by the courts being higher (32 percent).⁷⁵ The respondents also expressed more confidence in the Labor Courts than in the ordinary courts. Among those who had used both, on a scale of 1 to 10, they rated the former 6.7 and the latter 4.4. Although they mentioned the slowness of the institution as a negative aspect, the ordinary courts are even more time-consuming; for most of those interviewed, it is in the Labor Courts “in particular” that “ordinary people” are more likely to have an advantage in litigation. Statistics from the TRT based in the city of Campinas show that most workers obtain some benefits from labor lawsuits. According to Paulo Setti’s calculations, between 1987 and 1990, 41 percent of cases were resolved by agreement, 6 percent were considered wholly successful (the case was won outright), 19 percent were partially rejected and only 9 percent dismissed as unfounded. Overall, workers got at least some compensation in 65 percent of the cases.⁷⁶ In addition, citizens tend to use the Labor Courts (13 percent) more than the ordinary courts (8 percent). According to a national household survey carried out by the Brazilian Institute of Geography and Statistics (IBGE) in 1988, labor disputes were considered those which “most stimulated the forensic unfolding of the conflict: 66 percent of conflict cases required resolution in the courts.⁷⁷ Thus, it does not seem fortuitous that social rights are considered more important (26 percent) than civil (12 percent) and political (2 percent) rights.⁷⁸ The explanations about the greater legitimacy of the labor courts are quite controversial. There are those who believe that judges, in general, would be more inclined to give greater precedence to defending social justice than contractual guarantees, or violations of the law.⁷⁹ According to a survey conducted by

 The percentages have been rounded to the nearest whole percent.  Setti, Merecimento e eficiência, 139 – 140.  Ibid., 72– 73.  Grynspan, “Acesso e recurso,” 108.  These are the conclusions of a study by Pérsio Arida; Edmar Bacha; André Lara Resende; Armando Castelar Pinheiro, “Credit, Interest, and Jurisdictional Uncertainty: Conjectures on

44

1 Historiography of a “minor tribunal”

Armando Castelar Pinheiro,⁸⁰ 20 percent of the judges interviewed felt that, above all, contracts had to be respected, while 45 percent argued that the pursuit of social justice justified decisions that violated the terms of contracts. This trend is reversed when there are pending issues involving credit, interest, commercial law and tenancy. However, there is a clear inconsistency between the judges’ opinions about their politically engaged propensity to defend the “weaker” party and what they effectively decide, according to a study by Brisa Ferrão and Ivan Ribeiro based on judicial judgments in several areas of the Law. Both refuted the hypothesis that judges favor the economically and socially weaker in general, as the chances of judicial success on the stronger side are 45 percent higher. However, the authors conclude that in the labor, environmental and social security areas there is a lower probability of the stronger party seeing the contract favored to the detriment of social justice considerations. However, this tendency is much lower (15 percent) than the results of the poll on the political and ideological position of judges. They find in favor of the contract less when it flagrantly disregards the law, which occurs more often “when the number of norms limiting free hiring is greater,” that is, precisely in the more regulated areas of the Law, such as labor and social security.⁸¹ Threfore, these findings show that the Labor Courts stand out more for their performance in the social arena. In short, they are no longer a cowed and discredited institution, and it is the ordinary courts that now seek to appropriate the Labor Courts’ principles of orality, informality, free services and conciliation. This promotion of the Labor Courts, therefore, results from the increased appreciation of the institution as a subject of research and changing perceptions about the value of labor cases as a source for academic research.

the Case of Brazil.” In Inflation Targeting, Debts, and the Brazilian Experience, 1999 to 2003, edited by Francesco Giavazzi, Ilan Goldfajn, and Santiago Herrera (Cambridge: MIT Press, 2005).  Armando Castelar Pinheiro, “Judiciário, reforma e economia: uma visão dos magistrados,” 2002, XX, In Brisa Lopez de Mello Ferrão and Ivan César Ribeiro, “Os juízes brasileiros favorecem a parte mais fraca?.” Revista de Direito Administrativo 244 (2007).  Ibid. See also Elio Gaspari, “O viés dos juízes pelos pobres é lenda,” Folha de São Paulo, 4th February 2007, Caderno A, 12; Marcelo Moutinho, “O lado que mais pesa na balança.” Tribuna do Advogado, March 2007. http://www.tribunadoadvogado.com.br/content.asp?cc=1&codedicao= 31&id=977. Accessed on 6th April 2007.

2 Critique of the dualistic obsession: contracts and the law It should be noted that, when issuing decisions on collective disputes [dissídios coletivos], the Court is not bound by the same strict procedural rules adopted for the adjudication of individual matters. The Judge acts as a legislator and has ample freedom to create norms that, theoretically, will become law for the category. (Tostes Malta, 1963)¹

Historically, capitalist industrialization has made use of a wide variety of legal arrangements to deal with labor disputes. There are similarities and differences among legal systems, but a long tradition of analysis has preferred to operate with binary oppositions in which one legal model is irreducible to the other. Corporatism and contractualism are generally the clearest dualities in this regard. The core issue is normative power as the instrument par excellence of legal systems that deal with compulsory arbitration in collective disputes. Again, the role of this power in the Brazilian labor relations system has contributed greatly to discrediting the Labor Courts. Therefore, it is essential to problematize the rigid antitheses between corporatism, which is associated with fascism, and contractualism, which is associated with liberal-democratic regimes.

I The debate on normative powers dates back to the origins of the Labor Courts when, in the 1930s, very different positions clashed about the jurisdiction and scope of such tribunals. One stance, which we could call “civilist” – associated with the tradition of civil law – was represented by Waldemar Ferreira, a congressman and professor of Commercial Law at the University of São Paulo Law School. He did not recognize the existence of normative powers, arguing that the Legislature cannot delegate its responsibilities to the Judiciary to establish generalized norms. According to the tradition of the theory of the separation of powers, that would make the Judiciary go outside its ordinary tasks and exceed its jurisdiction, invading the sphere and responsibilities of the Legislature in a manner that would be unconstitutional.² The Labor Courts should restrict  Judge-Rapporteur of the Superior Labor Court in TRIBUNAL Regional do Trabalho da 2ª Região (henceforth TRT2). Judgment of Case no. 176, 1963.  Waldemar Ferreira, Princípios de legislação social e de direito judiciário do trabalho (São Paulo: Editora Limitada, 1938), vol. 1; Ibid., Princípios de legislação social e de direito judiciário do trabalho (São Paulo: Freitas Bastos, 1939), vol. 2. https://doi.org/10.1515/9783110638844-008

46

2 Critique of the dualistic obsession: contracts and the law

themselves to judging; in an accurate expression, jurists should be “scholars of the science of applying the law, not the art of creating it.” ³ This perspective of interpretation asserts the primacy of legal norms on an exclusively legislative basis, giving primacy to positive law. Oliveira Vianna championed a diametrically opposite view. Because it was a special court, in the words of another interpreter, the “judge creates the law” within the sphere of the Labor Courts.⁴ Therefore, a judge’s decision would have the normative power to reset wages and stipulate new working conditions. According to the Superior Labor Court (TST) judgment that provided the epigraph for this chapter, “The Judge acts as a legislator and has ample freedom to create norms that, theoretically, will become law for the category”⁵ (I must explain, however, that a judge only “legislates” on matters presented to him or her, clearly differing from ordinary lawmakers). Oliveira Vianna’s view eventually prevailed. Normative power would later be regulated by the Constitution of 1946, but the political and juridical debate did not end there and continued until very recently. Constitutional Amendment no. 45 of 2004 severely limited those powers by requiring common consent between the parties to file a lawsuit. Previously, however, it was enough for one of the parties to decide to go to court. The problem is still relevant, because the significance of such power has also come to include other branches of the Judiciary, where judges’ jurisdiction is expanding in several democratic nations. The main arguments that criticize the invasive nature of this legal instrument include the phenomena of inflated litigiousness, the growing judicialization of politics and the subsumption of society to the designs of judges, in which one seeks an arbiter and conciliator – two figures that are highly prized in labor courts, with functions that have increasingly “trespassed” on the territory of the Judiciary as a whole. This “jurisdictional activism” has been attributed to disenchantment with democracy and, paradoxically, to the weakening of the State and politics.⁶

 Luiz Roberto de Rezende Puech, Direito individual e coletivo do trabalho (São Paulo: Revista dos Tribunais, 1960), 447 (emphasis mine).  Délio Maranhão, “Processo de Trabalho.” In Arnaldo Süsseking; Délio Maranhão; Segadas Vianna, Instituições de direito do trabalho (São Paulo: LTr, 1991), vol. 2, 1197.  See note 1.  Regarding the debate on the growing judicialization of politics and social rights, see Antoine Garapon, O guardador de promessas: justiça e democracia (Lisboa: Instituto Piaget, 1998); Mauro Cappelletti, Juízes legisladores? (Porto Alegre: Sergio Antonio Fabris Editor, 1993); Luiz Werneck Vianna et al. (eds.). A judicialização da política e das relações sociais no Brasil (Rio de Janeiro: Revan, 1999).

2 Critique of the dualistic obsession: contracts and the law

47

In the case of Labor Courts, we are witnessing the phenomenon of the judicialization of social relations at work. Although Oliveira Vianna’s position prevailed, the problem of the Labor Courts’ interventionist role in the labor-capital relationship has not been forgotten since the end of World War II. From that point on, it became clear that normative power, which was regarded as an evil legacy of fascism, was incompatible with democracy, the right to strike and free negotiations between employers and employees. The labor courts would interfere in a field of relations in which it is up to the parties to freely establish the terms of negotiations and collective contracts. By disregarding the free will of the parties to the dispute, the Judiciary interfered in the contractual character of labor relations, so that in Brazil it would be impossible to establish a liberal-contractualist system in which the courts do not substantially intervene in collective contracts, guaranteeing freedom of association.⁷ To clarify the arguments about normative power and its importance in Brazil, I will make a quick foray into some aspects of these two fundamental systems of labor relations – legislated/corporatist and contractual/voluntarist. This is because, as we shall see in some detail, I establish parallels and contrasts between direct negotiations involving employers and workers, typified as an essential characteristic of liberal-contractualist models, on the one hand, and compulsory arbitration of class conflicts through the courts, considered the trademark of corporatist models, on the other. After extensive studies of labor court records, I have concluded that there were two fronts to the Brazilian system of regulating collective disputes between employers and employees, albeit under the vast mantle of the State. This is the central question that runs throughout this book.

II The collective contracting of labor, which I will broadly define as an agreement between employers and workers with the mediation of unions, is part of Labor Law as a counterpoint to the role played by the individual contract, in which, as a rule, employer arbitration prevails. It is not necessary here to discuss the birth of Social Law in general and Labor Law in particular, which has already been the subject of lengthy and thorough research. Nevertheless, I will give a general overview of the subject so as better to situate the emergence of the leg-

 See, for example, Stanley Arthur Gacek, Sistemas de relações de trabalho: exame dos modelos Brasil-Estados Unidos (São Paulo: LTr, 1994).

48

2 Critique of the dualistic obsession: contracts and the law

islated and voluntarist forms of labor relations, locating the emergence of normative power as an option to be chosen from a range of possibilities, between the end of the nineteenth century and the beginning of the twentieth.⁸ Before the “invention” of Labor Law in the last decades of the nineteenth century, and therefore before the emergence of the regulatory machinery of labor relations, labor was treated as a commodity and factor of production within economic thought. What Robert Steinfeld⁹ called “the ideology of free labor” eventually prevailed: the belief in its supposed superiority over slavery and other compulsory forms of extracting surplus labor. Society was seen to be composed of autonomous and essentially free individuals, so that the employee-employer relationship is seen as a voluntary exchange between equal subjects, in a contractual operation inherent to the private sector. “Freedom of the person” becomes the credential for the freedom to establish individual labor contracts, according to the presupposition of market access by non-coercive or extraeconomic means. The primacy of the individual over the collective was thus postulated according to the principle of the autonomy of the contracting parties, the basis for the legal value of private contracts. To the extent that the “social question” was formulated on the basis of the concept of free access to the market, according to the belief that the self-regulated capitalist market is the organizing principle of society,¹⁰ without any mediation, labor and workers were either viewed within the scope of Civil Law or that they should be assisted through tutelage, philanthropy and private beneficence.¹¹ From this perspective, the social question appears to be defined by the market and not the political sphere; relations between individuals are determined by necessity, interest and market values. According to Pierre Rosanvallon, this is the “economy as an achievement of politics.”¹²

 The following section is fundamentally based on Jacques Donzelot, L’ invention du social (Paris: Fayard, 1984). François-Xavier Merrien et al. (eds.), L’état social: une perspective internationale (Paris: Dalloz, 2005); Alain Supiot, Critique du droit du travail (Paris: Quadrige/PUF, 1994); Pierre Rosanvallon, A nova questão social: repensando o Estado Providência (Brasília: Instituto Teotônio Vilela, 1998); Idem, Le capitalisme utopique: histoire de l’ idée de marche (Paris: Seuil, 1979); Karl Polanyi, A grande transformação – as origens de nossa época (Rio de Janeiro: Campus, 2000); Robert Castel, Les métamorphoses de la question sociale (Paris: Galimard, 1995); Henri Hatzfeld, Du paupérisme à la secutité sociale: essai sur les origenes de la securité sociale em France, 1850 – 1940 (Paris: A. Colin, 1971).  Robert J. Steinfeld, The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350 – 1870 (Chapel Hill: University of North Carolina Press, 1991).  See Polanyi, A grande transformação, chapter 12; Rosanvallon, A nova questão social.  Castel, Les métamorphoses, chapters 4 and 5.  Rosanvallon, Le capitalisme utopique.

2 Critique of the dualistic obsession: contracts and the law

49

As the American historian David Brody has observed, in the United States between the nineteenth century and the 1930s, the law, invoking free labor, established the legal concept that joint action by workers was a threat to their own individual liberty. The law viewed unions, strikes, boycotts, pickets and closed shops as constraints on the “right to work” and the right of employers to hire freely, thus constituting criminal conspiracies. In an imaginary world of free and equal individuals, employers resisted the practice of collective bargaining, often forcing workers to sign contracts prohibiting them from setting up and joining trade unions.¹³ Considerable numbers of employers and workers adopted the language of free labor to prevent any State interference in labor relations. It became standard practice for businessmen to immobilize workers through paternalistic strategies that resulted in the creation of large “factory systems with a workers’ village,” thereby limiting their autonomy,¹⁴ and private welfare policies to keep the State out of the workplace and workers’ housing.¹⁵ The Labor Law changed this situation profoundly, both in the legal sphere and social thinking. The emergence of the “Welfare State” in European countries in the last decades of the nineteenth century became a third connection between liberalism and the subversion of society through revolutionary methods. A new question emerged: how can the State intervene in the “social question” – “a hybrid genre made up of the intersection of the civilian and the political”¹⁶ – without affecting property rights? How can public protection, through legal guarantees to workers, and private enterprise, expand in a compatible way? From what source could the State gain the legitimacy to regulate class conflicts without running the risk of becoming an autonomous, centralizing and disastrous entity for private enterprise and public freedoms? It was within the scope of issues such as these that the legal path of labor regulation emerged with the aim of replacing the law of force with the force of

 David Brody, “Free Labor, Law, and American Trade Unionism.” In Terms of Labor: Slavery, Serfdom, and Free Labor, edited by Stanley Engerman (Stanford: Stanford University Press, 1999).  Regarding Brazil, see José Sérgio Leite Lopes, A tecelagem dos conflitos de classe na “cidade das chaminés” (Brasília-São Paulo: Editora da UNB-Marco Zero, 1988). For studies of company towns in the Americas, see Oliver Dinius and Angela Vergara (eds.). Company Towns in the Americas: Landscape, Power, and Working-Class Communities (Athens, Georgia: University of Georgia Press, 2011).  David Montgomery, The Fall of the House of Labor (Cambridge: Cambridge University Press, 1995). Regarding a period closer to the timeframe of this book, see Sanford Jacoby, Modern Manors: Welfare Capitalism Since the New Deal (Princeton: Princeton University Press, 1997).  Donzelot, L’ invention du social, 10.

50

2 Critique of the dualistic obsession: contracts and the law

law. Relationships between and among people and things would not be based exclusively on contractual obligations and reciprocities. According to Alan Supiot, the history of Labor Law has been the progressive discovery of the personal dimension of work, which no longer puts work first and foremost as a good, replacing it with the worker as a subject of law.¹⁷ Thus, society should not organize itself through a self-regulating market system, under the risk of being undermined. The mercantile and patrimonial conception of work should give way to the perception of work as inseparable from the person of the worker, the founding principle of Labor Law. Private contractual relations would be mediated by the force of government statutes and the legal apparatus, whether through law, jurisprudence or custom. Labor then becomes the focus of a new branch of the Law, with the worker a subject of law whenever the prerogatives of collective representation and action (forming unions, the right to strike and the freedom of collective contracting) are achieved and secured. The force of legal and juridical correctives could mitigate the inequality of power between employee and employer in order to limit the private arbitrariness of employers and “civilize capital.” Therefore, “the constitution of labor law as an autonomous branch is thus operated by the recognition of collectively defined rights… that establish and reinforce individual rights.”¹⁸ In short, Labor Law has given a public character to social relations developed in the private sphere, going against orthodox liberal contractualism which is based on the legal fiction of the autonomy of individual wills. Replacing individually defined rights and duties, employers and employees establish collective norms of salary regulation and working conditions as subjects of law. Labor Law, therefore, recognizes the worker as an integral part of a collective with social status that goes beyond the individual dimension of the employment contract. Deeply rooted in Public Law, this collective and statutory aspect would leave an indelible mark on Labor Law. Furthermore, within the French solidarisme of the late nineteenth century, the concept of property as a subjective right would give way to the concept of property as a social function in a chain of interdependence of groups and individuals, as an effect of the social division of labor. The State moved away from contractual notions of sovereignty and began to situate itself as a “social fact” and agent of public service, with the aim of cementing the social solidarity that emerged from the multiplicity of func-

 Supiot, Critique du droit du travail, 44.  Ibid., 125.

2 Critique of the dualistic obsession: contracts and the law

51

tions and institutions embedded in society. As part of this range of obligations on the part of the State, the laws of social protection aimed to offer workers a certain number of advantages under the implicit condition that they played the game – that is, they agreed to form part of the social order and the peace of the republic.¹⁹

III Generally speaking, there is a common tendency to establish two opposing and, often, mutually exclusive, regulatory paths: public regulation, on the one hand, and so-called collective autonomy, on the other. Based on the liberal tradition, the latter establishes a system of direct negotiation between the parties, with optional conciliation and arbitration mechanisms. As a result, it was believed to curb the desire of the employers to enter into private collective agreements. According to this tradition, labor relations are an exchange transacted between legally equal subjects. As we shall see, the United Kingdom (UK) and the United States are situated in this tradition, inasmuch as both the employers and the workers would have avoided turning to the courts, as both were aware of what has been dubbed “collective laissez-faire,” a term coined by Otto Kahn-Freund, who established the following formulation: “There is perhaps no major country in the world in which the law has played a less significant role in the shaping of [labour-managment] relations than in Great Britain and in which today the law and the legal profession have less to do with labour relations”(vou colocar a frase no original).”²⁰ According to this view, the UK is a classic example of State absenteeism in class conflicts, because the high degree of self-organization of workers and employers supposedly rendered State intervention either unnecessary or too peripheral. Thus, collective bargaining would basically depend on precisely the ef-

 Hatzfeld, Du paupérisme; Donzelot, L’ invention du social, chapter 2. Regarding the reception of French solidarism in Brazil, see Maria Stella Bresciani, O charme da ciência e a sedução da objetividade: Oliveira Vianna entre os intérpretes do Brasil (São Paulo: Editora da Unesp, 2005).  Otto Kahn-Freund, “Industrial Relations and the Law: Retrospect and Prospect.” British Journal of Industrial Relations 7 (1969), 304, apud Cherry R. Rubin, “The Historical Development of Collective Labour Law: The United Kingdom.” In The Rise and Development of Collective Labour Law, edited by Marcel van der Linden and Richard Price (Bern; Brussels; Frankfurt; New York; Vienna: Lang, 2000), 291. Regarding liberal capitalist collectivism, another term for voluntarism, see Neville Kirk, Comrades and Cousins: Globalization, Workers and Labour Movements in Britain, the USA and Australia from the 1880s to 1914 (London: The Merlin Press, 2003, 5).

52

2 Critique of the dualistic obsession: contracts and the law

forts and resources of trade unions and market forces. Between the 1950s and 1970s, this interpretation gained the status of an academic paradigm, with palpable and enduring political effects.²¹ After World War II, the United States spent many years exporting to several countries, including Brazil, its “free and democratic” trade unionism, elevated to the genuine version of voluntarism, supposedly averse to party-political injunctions and exclusively attached to a “private contractualism.”²² In the opposite direction, according to the corporatist tradition, workers are not seen as individuals divorced from the communities to which they belong, such as a profession or specific work group, so the essence of the Law is not sought in the autonomy of wills. Instead of situating contracts within the sphere of private law, the State imposes statutes – that is, legal, publicly regulated norms.²³ Unlike countries that have followed the Anglo-Saxon model, others, such as Brazil, are said to have followed the form of Labor Law dominated by the preponderant role of public power in the regulation of labor relations. Strongly legislated corporatist systems subjected negotiations between capital and labor to public regulatory and protectiive mechanisms. As a result, in many cases, judicial arbitration was obligatory, imposing – from that standpoint – severe limitations on the freedom of negotiation between the parties. Thus, a duality of irreconcilable systems of labor relations emerged, putting down strong political, juridical and historiographic roots in the debate on the role of the Brazilian Labor Courts in the resolution of collective conflicts. Some ideas are enduring, take time to be expended and when time-honored reign supreme. We become subjected to them and accept them as authorities invested by tradition. The concept that the legal contractualist tradition is the realm of collective autonomy and corporatist or legislated models are the universe of class heteronomy is one of those ideas that have taken root, become naturalized and occupied a lifelong place in legal thinking and academic literature.

 Chris Howell, Trade Unions and the State: The Construction of Industrial Institutions in Britain, 1890 – 2000 (Princeton, New Jersey: Princeton University Press, 2007).  The primary objective, initially, was to isolate and neutralize the Communists’ activities in the trade union movement. Regardng the US policy aimed at establishing “free and democratic” trade unionism in Brazil, see Larissa R. Corrêa, Disseram que voltei americanizado: relações sindicais Brasil – Estados Unidos na Ditadura Civil-Militar (Campinas: Editora da Unicamp, 2017); Clifford Welch, “Labor Internationalism: U. S. Involvement in Brazilian Unions, 1945 – 1965.” Latin American Research Review 2 (30) (1995); Renato P. Colistete, “Trade Unions and the ICFTU in the Age of Development in Brazil, 1953 – 1962.” Hispanic American Historical Review 4 (92) (2012).  Castel, Les métamorphoses, chapter 6.

2 Critique of the dualistic obsession: contracts and the law

53

There is a great deal of nuance in both models – and even in the gap between the two – but the tendency to establish a binary opposition in which one model is irreducible to the other still prevails. According to the jurist Ernesto Krotoschin, “There is either absolute and predominant intervention by the state, or there are free associations, with the right to enter into collective bargaining agreements, and thus there is a decrease in state interventionism and bureaucracy.”²⁴ US trade union leaders also shared this view. In 1945, John P. Frey, a member of the American Federation of Labor, ardently opposed the introduction in the United States of the form of compulsory arbitration practiced in New Zealand and Australia. He argued that the courts in those countries have the power to set down the terms of an agreement in which “there is no longer any collective bargaining between workers and employers. There is nothing but a governmentimposed decision, rulling, directive or order – whenever it is handed down.”²⁵ In 1968, trade unionist Edward Kramer, after denouncing the fascist legacy of Brazilian labor legislation, was no less emphatic: “Government control of the unions, introduced by President Getúlio Vargas, is still the law of the land; subsequent changes in labor laws have resulted in even greater government control.” Specifically regarding Labor Courts, he said that it was more “appropriate for this agency [the Labor Courts] to be called the Ministry of Labor,” since the agency acted with “authoritarian and absolute control over Brazilian workers.”²⁶ At the same time, a patrician jurist wrote: “In democratic countries where free enterprise has always prevailed, normative competence is unknown.”²⁷ In Brazilian studies, contractualist voluntarism is a tacit assumption, an “autonomist” gamble that had a major impact on academic and union perspectives in the early 1980s.²⁸ The so-called “New Unionism,” which supported the elimination of the corporatist union structure, questioned the normativity imposed

 Ernesto Krotoschin, “Questiones fundamentales de derecho colectivo del trabajo”, 39, apud Luiz Roberto de R. Puech, Na vivência do direito social (São Paulo: Resenha Universitária, 1975), 57 (emphasis mine).  John P. Frey, “You Can’t Eliminate Strikes.” American Federationist 52(1945). In Compulsory Federal Arbitration of Labor Disputes, edited by Julia Johnsen (New York: The H. W. Wilson Company, 1947), 258.  O Estado de São Paulo, 4th December 1968, 11, apud Corrêa, Disseram que voltei americanizado, 217.  Luiz de R. Puech, Direito individual e coletivo do trabalho (São Paulo: Revista dos Tribunais, 1960), 447.  See, for example, Eder Sader, Quando novos personagens entraram em cena: experiências e lutas dos trabalhadores da Grande São Paulo, 1970 – 1980 (São Paulo: Paz e Terra, 1988).

54

2 Critique of the dualistic obsession: contracts and the law

by Labor Courts and made the labor movement the central focus of national policy. It produced leaders such as the metalworker Luiz Inácio Lula da Silva (president of Brazil from 2003 to 2011) and organized an important part of the trade union movement around the Central Única dos Trabalhadores (Central Workers’ Union; CUT). One of its most eminent advocates, Stanley Arthur Gacek,²⁹ pointed to “the implications of the ideal contractualist type for labor activism” and the path of “genuinely voluntary” collective bargaining. In his view, “Brazilian labor law and labor courts should be as far removed as possible from normative power, or the substantive determination of labor agreements.”³⁰ We still lack sophisticated comparisons between the legislated model of labor relations, such as the Brazilian one, in which the law is a more important instrument in the establishment of rights, and the negotiated model of countries with a “voluntarist” tradition in which rights are established by collective contracts and subject to private arbitration. In this regard, some observations are necessary that merit separate studies. If I include them here, it is to avoid falling into the trap of idealizing Anglo-Saxon contractualism, which, as a rule, is presented as the antithesis of corporatism.

IV Even countries such as the United Kingdom, Canada and the United States, which could be considered “ideal types” of an “anti-legal culture,” that is, supposedly averse to the regulation of labor relations, have adopted public mechanisms that favored agreement between the parties.³¹ The historical autonomy and reluctant voluntarism of British trade unionism has changed, as the State has often regulated collective bargaining and trade unions have sometimes been unable to keep the courts from intervening in strikes. Throughout the history of the British labor movement, the famous “collective laissez-faire” and imputed legal absenteeism have been nothing more than transitory stages, contradicting the image presented in the vast literature that sees the liberal order as

 Gacek was assistant director for international affairs at the United Food and Commercial Workers International Union (UFCW/United States) and chair of the International Labor Law Committee of the District of Columbia Bar Association (USA).  Gacek, Sistemas de relações de trabalho, 121– 122 (emphasis in the original).  Erhard Blankenburg and Ralf Rogowski, “German Labour Courts and the British Industrial Tribunal System.” Journal of Law and Society 1 (13) (1986), 70.

2 Critique of the dualistic obsession: contracts and the law

55

being firmly opposed to governmental intervention.³² As Chris Howell has noted, the theory of legal absenteeism in labor relations, developed in the name of the private contract, flourished in the 1950s because this was a period of relative stability in capital-labor conflicts. Until recently, the concept persisted that State intervention was inconsistent, politically conjunctural and non-systemic. The neoliberal labor reforms introduced by the Thatcher administration in the 1980s were responsible for a review of those hypotheses, giving centrality to the figure of the State as an actor capable of intervening in the world of work, in a role that went beyond repression or legal regulation.³³ The vulnerability of British unions to the governmental onslaught led some authors to see the State as a major player in the process of building labor relations in the UK in the last century.³⁴ This perception accompanies a change in the way of understanding the action of the State, because the regulation of labor relations did not take place merely through the creation of a broad legal and juridical apparatus. It may have been precisely the absence of such an apparatus that led the State to intervene in a frequently ad hoc manner in labor conflicts, particularly when the social order was under threat.³⁵ It should also be added that the authorities created public conditions to motivate, encourage and shape collective bargaining between parties, “but always within a politically-regulated terrain.”³⁶ Gerry Rubin³⁷ has covered a long history of the development of labor relations in the UK, beginning by discarding the idea that collective bargaining on a voluntarist basis had begun even before the country became the world’s most powerful industrial nation. During several decades of the nineteenth century, labor was regulated by criminal legislation, administrative statutes and by the “master and servants” laws that arose in the late Middle Ages. These legal provisions had, above all, the effect of establishing sanctions against the breach

 See critiques of that literature in Rubin, “The Historical Development,” 295 and 348; Leon Fink, “Where the Grass is Greener: International Influences on the Formation of National Labor Laws.” Paper presented at the Second International Worlds of Work Seminar, Rio de Janeiro, 30th November 2012; Idem, “Labor’s Search for Legitimacy,” In The Long Gilded Age: American Capitalism and the Lesson of a New World Order (Philadelphia: University of Pennsylvania Press, 2015).  Howell, Trade Unions and the State.  See Richard Hyman, “The Historical Evolution of British Industrial Relations.” In Paul Edwards, Industrial Relations: Theory and Practice in Britain, edited by Paul Edwards (Cambridge: Blackwell, 1999).  Howell, Trade Unions and the State.  Fink, “Where the Grass is Greener,” 8.  Rubin, “The Historical Development.”

56

2 Critique of the dualistic obsession: contracts and the law

of contracts by workers, in addition to establishing annual salaries and seeking to ensure discipline in the workplace. Although the unions were no longer illegal in 1824, the legal and juridical siege, under the control and discretion of the magistrates, was not lifted from collective actions aimed at restricting the supply of labor, such as strikes, pickets and closed shop. It is curious to note that, as early as the 1800s, some laws were enacted with the aim of creating a tripartite system of labor relations, including compulsory arbitration, which was seen as a continuation of the paternalistic pre-industrial tradition rather than the invention of something new and “modern” adjectives that would later be ascribed to the labor courts. According to W. Hamish Fraser, State intervention in labor relations became official with the Conciliation Act of 1896, a measure inspired by conciliation and arbitration systems introduced in Belgium, Germany, France and New Zealand. In the early 1890s, some 300 local conciliation councils were established, although their success was limited because unions and employers did not rely on intermediaries from outside the sphere of labor relations. Later, in response to the growth of capital-labor conflicts in the period between 1910 and 1914, the government established a national conciliation chamber with 13 union leaders and 13 major employers under the chairmanship of a government representative.³⁸ That period also witnessed a process of creating a series of immunities for trade unions, especially between the last quarter of the nineteenth century and the first decade of the twentieth century. For 75 years after it was enacted, the law of 1906 was considered a kind of charter that favored the unions’ legal action. Furthermore, the State’s responsibility to maintain “industrial peace” had been institutionalized, getting directly involved in the most important disputes between workers and employers. Public power had become a brake on the self-proclaimed laissez-faire, in that more protective than coercive measures were implemented to promote collective bargaining.³⁹ When the Great War broke out, the State played a leading role in labor relations, interfering in strategic sectors through the prohibition of strikes, compulsory arbitration, wage guarantees, labor courts to punish lack of discipline and penalties for breach of contract. Between the end of World War I and 1945, the principles of “politicized voluntarism” gained greater depth, expanding the institutional machinery to ensure collective bargaining and enabling collaboration between workers and employers, while the governments of that time avoided di-

 W. Hamish Fraser. A History of British Trade Unionism, 1700 – 1998 (London: Macmillan Press, 1999), 97 and 104; Rubin, “The Historical Development,” 334.  Rubin, 334.

2 Critique of the dualistic obsession: contracts and the law

57

rect involvement in labor relations. In any case, the premise of voluntarism as a system of free negotiation not regulated by the State was not universally applied or desired, given the inclination of mining workers, for example, to appeal to the State for protection. During World War II, control over unions was more intense. Compulsory arbitration was introduced while collective bargaining was encouraged and expanded. The unions gained strength during the post-war period, seeing an increase in unionization and wages, as well as greater bargaining power arising from the workplace. However, after the 1960s, and especially at the end of the following decade, there was a strong reaction against the collective bargaining system hitherto in place, and in favor of a labor market controlled by employers. By the 1970s, 30 percent of the workforce was outside the scope of collective bargaining, while in the 1990s about half of the UK’s working conditions were established by individual contracts. Thus, the collapse of the unions during the Thatcher administration put paid to the view that the power of the unions had always been based on voluntarism.⁴⁰ Let us now briefly consider the “case” of Canada, which, unlike the Australian regulatory path, aimed to cultivate the British liberal heritage in the best possible manner. The North American country saw adherence to individual employment contracts, repression, employers’ recourse to the courts and criminal legislation, as well as the refusal of employers to consider trade unions as valid interlocutors. However, all this and much more did not prevent the State from playing an active role in conflicts at the federal and provincial levels, as well as institutionalizing mechanisms of conciliation and arbitration. From 1900 onwards, “industrial voluntarism,” in which the concept that collective bargaining should be pursued in the private sphere prevailed, was also a regime in which government institutions played an increasingly important role in regulating labor relations. In fact, a Labor Department was established as early as 1909 to gather and compile statistics and studies on wages, immigration and social legislation, as well as to control the entry of foreign workers and take direct action in class reconciliation processes. Although the authorities preferred voluntary conciliation and arbitration to remain faithful to the liberal desiccation, the State not only offered material, professional and legal assistance for this purpose, including tripartite councils, but even practiced compulsory arbitration.

 Howell, Trade Unions and the State.

58

2 Critique of the dualistic obsession: contracts and the law

Even before World War I, the unorthodox view that private rights should be limited when they became the agents of public losses was nothing new.⁴¹ In regard to the United States (US), although the American model of labor relations is commonly affiliated with “British voluntarism,” we find a crucial difference in the period prior to the Great Depression: unlike the UK, where the restrictions imposed on the courts were part of a policy that sought to balance conflicts, the US courts did not constitutionally defer to the Legislature and could use extensive jurisprudence to discourage and curtail collective action and bargaining. Since the last decades of the nineteenth century, the anti-union position of the US judges has been far more extreme than that of their British counterparts, because Parliament was able to influence the judiciary’s actions in trade union matters, whereas in the United States labor law is essentially a prerogative of the judiciary.⁴² As Neville Kirk observes, legal restrictions on judicial authorities have proven to be fragile and have been overturned by anti-union jurisprudence because of the practices of review and reinterpretation of laws by the US courts. They routinely criminalized workers’ collective actions based on anti-conspiracy laws and court orders that dramatically limited strikes, boycotts, pickets and other expedients in the struggle.⁴³ Moreover, until the 1920s, the courts refused to recognize collective bargaining as contracts or apply them on behalf of trade unions, as they were considered “gentlemen’s agreements” without any legal force. As Leon Fink put it, “If British trade unionists exaggerated their own historical autonomy, their American imitators fell even deeper into self-delusion.”⁴⁴ However, mediation and arbitration initiatives have been part of the history of labor in the US since the late nineteenth century.⁴⁵ The Great War was a turning point, even if fleeting, but such initiatives would take root in the New Deal. During the global conflict, by law, employers were responsible for negotiating with their employees “in good faith,” and tripartite councils such as the War

 Judy Fudgee and Eric Tucker, Labour Before the Law: The Regulation of Worker’s Collective Action in Canada, 1900 – 1948 (Toronto/London: University of Toronto Press, 2004).  Brody, “Free Labor,” 221– 223 and 227– 228.  Kirk, Comrades and Cousins, 42; Leon Fink, “Labor, Liberty and the Law: Trade Unionism and the Problem of the American Constitutional Order.” Journal of American History 3 (74) (1987), 914– 917.  Fink, “Where the Grass is Greener,” 8.  Idem, “American Labor Justice and the Problem of Trade Union Legitimacy”, In Labor Justice across Americas, edited by Leon Fink and Juan Manuel Palacio (Urbana: University of Illinois Press, 2018).

2 Critique of the dualistic obsession: contracts and the law

59

Labor Conference Board were set up to deal with conflicts.⁴⁶ This board had judicial characteristics to resolve disputes regarding the application and interpretation of collective agreements, giving rise to a regulatory system that attracted some unions.⁴⁷ Shortly thereafter, the 1926 Railway Labor Act and the Norris-La Guardia Act of 1932 recognized the right of workers to organize in unions and engage in collective bargaining without interference from employers. In the two decades leading up to the New Deal, experiments were under way in the labor movement that moved toward tripartite arrangements aimed at better organizing production and mitigating the enormous differences in wages and working conditions in American industry. This gave rise to a kind of “regulatory syndicalism,”⁴⁸ which would have important implications in the 1930s and during World War II. In short, with the government’s sanction, unions would play the role of regulating production costs to better organize intra-business competition. This required collective bargaining per branch of the economy to standardize wages and working conditions, which presupposed the existence of industrial unionism instead of the traditional trade unions organized as craft unions. The main laboratory for this experiment was the garment industry, a veritable paradigm of self-destructive business competition. Within it, there flourished a parity system of “impartial arbitration” of conflicts that would greatly influence the development of new ways of regulating labor relations in the following decades.⁴⁹ The main watershed came with the New Deal in the 1930s, when the federal government actively intervened in the regulation of conflicts between capital and labor in the name of building an “industrial democracy” that could solve the problems of underconsumption, expand the social agenda through public parameters and create mechanisms for the “harmonization” of capital and labor. The National Industrial Recovery Act (NIRA) was the New Deal’s most famous corporatist product, clearly inspired by Italian corporatism, although that soon

 William J. Green., Labor Market Politics and the Great War: The Department of Labor, and the First U.S. Employment Service, 1907 – 1933 (Kent: The Kent State University Press, 1997), chapter 5.  Katherine Van Wezel Stone, “Labor and the American State: The Evolution of Labor Law in the United States.” In The Rise and Development of Collective Labour Law, edited by Marcel van der Linden and Richard Price (Bern; Brussels; Frankfurt; New York; Vienna: Lang, 2000), 367.  That expression was coined by Colin Gordon,. New Deal: Business, Labor, and Politics in America, 1920 – 1935 (New York: Cambridge University Press, 1994).  Richard A. Greenwald, The Triangle Fire, the Protocols of Peace, and Industrial Democracy in Progressive Era New York (Philadelphia: Temple University Press, 2005), particularly chapters 2 and 3; Steven Fraser,. Labor Will Rule: Sidney Hillman and the Rise of American Labor (Ithaca and London: Cornell University Press, 1991).

60

2 Critique of the dualistic obsession: contracts and the law

became a political and historiographical taboo in the United States.⁵⁰ With the aim of restoring national industry, establishing a system of “fair competition” among companies and increasing employment and purchasing power, the NIRA’s corporatist purposes were clear: “to induce and maintain united action of labor and management under adequate governmental sanctions and supervision.” The most innovative and resounding legal provision was the well-known Section 7a, according to which every code of competition had to obtain favorable conditions for the organization of workers and collective bargaining, “free from interference restraint, or coercion of employers of labor.”⁵¹ That is, Congress delegated public powers to unions and employers’ associations to stem the crisis and regulate labor relations, under the coordination of the government. Even though the NIRA resulted in a process of cartelization because it was under the control of industrial trusts, it played a key role in organizing and mobilizing workers. In 1935, the United States Congress passed a “revolutionary” law known as the Wagner Act, which instituted a kind of “new constitutionalism” in the world of work, recognizing unions as valid interlocutors and encouraging collective bargaining. To observe its compliance, the US Congress created the National Labor Relations Board (NLRB), which determined the unions’ jurisdiction and conducted on the spot elections of workers to choose the union that should represent them; businesses, in turn, were forced to negotiate wages, working hours and conditions with the elected union. This created a system recognized by the specialized literature as “quasi-judicial,” in which union representatives and employers debated, provided evidence and witnesses before the NLRB announced its decision, which was always subject to review by the courts. This system of labor relations was well received by many trade unionists who viewed it as a shield against the private power of employers, since the Board exercised its power against “unfair labor practices” that were considered arbitrary and contrary to the free collective organization of workers.⁵²  I explore this issue in more detail in Fernando T. da Silva. “O New Deal do Trabalhadores: corporativismo e política nos Estados Unidos.” Campinas, digitized paper, 2018.  National Industrial Recovery Act (1933), https://www.ourdocuments.gov/print_friendly. php?page=transcript&doc=66&title=Transcript+of+National+Industrial+Recovery+Act+% 281933 %29, accessed 5th July 2016.  The most complete work on the NRLB is still James A. Gross, The Making of the National Labor Relations Board (Albany: State University of New York Press, 1974). For a, shall we say, more skeptical view of the system of labor relations created by the New Deal, see Christopher Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880 – 1960 (New York: Cambridge University Press, 1986). Nelson Lichtenstein’s approach can be viewed as classic, seen in State of the Union: a Century of American Labor (New

2 Critique of the dualistic obsession: contracts and the law

61

Far from being typical voluntarism, this was a highly politicized and even centralized system of collective bargaining. This system played a strategic role in the policy of creating “new citizens” in the field of labor relations.⁵³ By maintaining voluntary collective bargaining as the main mechanism for reconciling the interests of employers and workers, albeit extensively regulated by public norms, New Deal policies were also viewed as “social liberalism.”⁵⁴ In other words, voluntary association and private collective bargaining no longer appeared to be a panacea for workers’ problems, so many unions pinned their hopes on government intervention. The US labor regulation system thus came to encompass a dense network of rules and regulatory agencies, imposing complex rules on union elections, collective bargaining and the right to strike. Instead of typical voluntarism, we are faced with a system of State-regulated collective bargaining. The New Deal experimented with a more coercive and centralized institutional model in which trade unions became “semi-public” bodies with a monopoly on representation. However, the NIRA and Wagner Act did not give rise to the greatest corporatist experiment in US history, if we consider the period of World War II. As Nelson Lichtenstein aptly observed, “the process of corporatist accommodation… constituted the essential work of the wartime labor relations apparatus.”⁵⁵ Between 1942 and 1945, the National War Labor Board extensively practiced not only voluntary arbitration but also compulsory arbitration, albeit on a smaller scale, particularly when determining wage increases. The NWLB bears several similarities to the operations of the Brazilian Labor Courts. It was also based on parity, and its decisions had to be accepted by the parties to the dispute. The unions were compelled to refer all conflicts that could not be resolved amicably to the sphere of private arbitration, leaving the final decision regarding any unresolved matters up to the NWLB, which, in a way, entailed compulsory arbitration. In fact, the Board ordered a 15-percent increase in the wages of all workers employed at factories involved in the war effort. This sparked a great deal of

Jersey: Princeton University Press, 2002). For a comparative perspective, see Greg Patmore, “Employee Representation Plans in the United States, Canada, and Australia: An Employer Response to Workplace Democracy”, Labor: Studies in Working-Class History of the Americas 2 (3) (2006); Benjamin Aaron, “The NLRB, Labor Courts, and Industrial Tribunals: A Selective Comparison.” Industrial and Labor Review, Washington, DC 1 (39) (1985).  Lichtenstein, State of the Union, chapter 3.  Alan Dawley, Struggles for Justice: Social Responsibility and the Liberal State (Cambridge/ London: The Belknap Press of Harvard University Press, 1991).  Nelson Lichtenstein, Walter Reuther: The Most Dangerous Man in Detroit (Urbana and Detroit: University of Illinois Press, 1995), 196.

62

2 Critique of the dualistic obsession: contracts and the law

controversy, as the NWLB was effectively given normative powers equivalent to replacing collective bargaining in setting wages.⁵⁶ All this was unprecedented in US labor history. The justification for this strong government intervention in which no wage agreement could proceed without undergoing the NWLB’s scrutiny lay in the state of emergency imposed by the war effort. The Board was therefore an experimental laboratory and breeding ground for arbiters, mostly economists, who in the following decades would become the exponents of the US’s private and voluntary “arbitration machinery,” with impressive institutional, academic and editorial offshoots.⁵⁷ Furthermore, during the immediate post-war period, businessmen, intellectuals and part of the trade union movement were strongly committed to eliminating any traces of the compulsory arbitration system and corporatist institutions in general. This demonstrates that the New Deal’s experiment with strong intervention in labor relations and, to an even greater extent, the war years posed a powerful threat to the so-called “free and democratic trade unionism” that thrived during the Cold War. In the 1930s and 1940s, Brazil and the United States built up clearly corporatist institutions, which makes them more closely alike than they might appear. However, the working class had a very different influence on the establishment of both countries’ corporatist systems. As paradoxical as it may seem, it is precisely in the country where one could least find a corporatist system tout court – the United States – that one can conceive of the existence of more exclusive inclusive political practices that are open to workers’ participation and pressure, at least during the 1930s and World War II. The main innovation in the history of the United States labor movement during that period was that workers and a considerable part of their institutions massively relied on the policy of associations between unions, government and a political party (the Democrats) as a key alternative to overcoming the crisis that began in 1929. This alliance was equally important in the political decision-making processes that included government agencies that labor leaders and workers had helped create. The effects of the Great Depression helped reposition the labor movement in relation to the State. Workers lost their faith in the protective capacity of community, local

 Ronald W. Schatz, “‘Industrial Peace through Arbitration’: George Taylor and the Genius of the War Labor Board,” Labor 11 (4), Winter 2014.  Howell J. Harris, Rights do Manage: Industrial Relations of American Business in the 1940s (Madison: The University of Wisconsin Press, 1982).

2 Critique of the dualistic obsession: contracts and the law

63

and business institutions, seeing self-organization and the welfare state as the only solution to their dilemmas.⁵⁸ However, the integrative, organic utopia for the ideologues of the Brazilian corporatist State resulted in exclusive political practices whose development even jettisoned the most conservative representatives of the working class. The corporatist promise to include workers in public institutions did not stand a chance due to the oxymoron of “authoritarian democracy” that Oliveira Vianna proposed. This gave rise to another paradox: it was during the democratic period between 1946 and 1964 that corporatism came closer to being established in Brazil, while in the United States, between the post-war period and the 1970s, “corporatism” became anathema and was always associated with “totalitarianism.” While, in Brazil, solutions to the social problem and class conflicts were increasingly sought in the public sphere, the United States saw a growing process of “privatizing” social policy.⁵⁹ During the immediate post-war period, more precisely in 1947, the Taft-Hartley Act restricted several aspects of union activity, such as banning boycotts and closed shops, in addition to permitting thousands of lawsuits against workers.⁶⁰ The following decades – a period that saw the rapid growth and strengthening of US trade unions, including regular wage increases and rising employment – witnessed a “reinvention of voluntarism.” This included the consolidation of a private arbitration system through which conflicts were referred to a third, “neutral”, party selected by the parties to the conflict, becoming a “creature of contract.”⁶¹ At the same time, all of this came at a very steep price. Collective agreements were also splintered, because most were celebrated with specific firms, which, in part, resulted from fierce inter-capitalist competition and the lack of centralized action by businesses. As Nelson Lichtenstein has aptly argued, a combination of several factors led to an insular and profoundly depoliticized system of collective bargaining. The impacts of this made themselves felt chiefly in professional categories with little bargaining power and among women, blacks and immigrants,

 For a fine analysis of this subject, see Lisabeth Cohen,. Making a New Deal: Industrial Workers in Chicago, 1919 – 1939 (Cambridge: Cambridge, University Press, 1990).  Ronald W. Shatz, “From Commons to Dunlop: Rethinking the Field and Theory of Industrial Relations.” In Industrial Democracy in America: The Ambiguous Promise, edited by Nelson Lichenstein and Howell John Harris (Cambridge: Cambridge University Press, 1996).  Brody, “Free Labor,” 238.  Stone, “Labor and the American State,” 371.

64

2 Critique of the dualistic obsession: contracts and the law

relegating wage increases and social benefits to the unstable dynamics of the private sector.⁶² Beginning in the late 1970s, unionization, wages and employment sharply declined, while legislative and judicial measures came to offer some protection for workers’ individual rights. However, the arbitration of conflicts through private mechanisms stripped them of benefits guaranteed by the laws of the 1980s, particularly regarding employment guarantees. This regulatory system has favored employers, many of whom demand that workers previously accept private arbitration as a precondition of employment, while collective bargaining and union representation have seen a sharp decline. Katherine Stone refers to a phase of post-collective bargaining, that is, collective bargaining between employers and workers is giving way to negotiations between employers and individual workers.⁶³ These observations, although highly impressionistic, are nothing more than an invitation to future comparative studies that can help us go beyond the first impressions that the models of labor relations, also generalized, leave on our imaginations. In fact, Tamara Lothian’s efforts to compare Brazilian corporatism with US “voluntarism” have virtually ignored the debates in Brazil. Lothian’s conclusion the labor movement has become “vigorous, independent, and politicized”⁶⁴ in countries with corporate labor regimes is likely to puzzle the unconditional advocates of the primacy of the negotiated over the legislated. Of course, such a conclusion is controversial and deserves closer examination,⁶⁵ but Lothian aptly observes that, in the hands of a regime of force, corporatism tended to become a strong ally of policies of repression and loss of rights. In the opposite direction, in more open regimes, the corporatist system could become an instrument of activism and union organization, the politicization of the labor movement, radicalization of social and political programs, pressure on the government in favor of pro-worker measures, as well as pluralist competition among different factions and political ideologies. As Larissa Corrêa has clearly shown, the American observers interested in establishing the “free and democratic trade unionism” of the United States, sup-

 Lichtenstein, State of the Union, chapter 3.  Stone, “Labor and the American State,” 274– 276  Tamara Lothian, “The Political Consequences of Labor Law Regimes: the Contractualist and Corporatist Models Compared.” Cardozo Law Review 4 (7), (1986), 1003.  See the debate between Lothian and Stanley Arthur Gacek: Gacek, Sistema de relações de trabalho; Tamara Lothian. “Reinventing Labor Law: A Rejoinder.” Cardozo Law Review 5 (16) (1995); Fernando Teixeira da Silva and Larissa R. Corrêa analyze this matter in further depth in “The Politics of Justice: Rethinking Brazil’s Corporatist Labor Movement.” Labor 13 (2) (2016).

2 Critique of the dualistic obsession: contracts and the law

65

posedly free from the web of government, were aware of what was going on here – even more so than many academic observers: a movement of workers that targeted not only the employers but public power itself. Perhaps it was for this reason that in the troubled year of 1968, the American Robert H. Dockery sent a report to the US Senate stating that “Latin American workers go on strike, but not in the same way as Americans. They go out into the streets and squares, hold rallies, prepare grounds for violence, try to impose their conditions on political authorities.”⁶⁶ Generalizations aside, the builders of the American “voluntarist model” in the post-war period glimpsed something that has required a great deal of effort from historians in recent years. One of the collaborators in building that model, Boris Shishkin, an economist at the powerful American Federation of Labor, opposed any governmental measures that would lead to compulsory arbitration of class conflicts. It is worthwhile briefly to follow his arguments, since many will be present throughout this study. It was said to be a system that violates “every rudiment of justice,” since the judge “write[s] the law himself” and decides “in accordance with his own prejudice, predilections and personal conception of fairness and justice.” Furthermore, where this system was adopted there was as many or more strikes than in democratic countries which do not have compulsory arbitration and thus do not contribute to “industrial peace.” On the contrary, such a system promotes and prolongs industrial disputes it. More than that, the presence of Labor Courts “creates an inducement to the parties to fight it out to the bitter end and escape the charge that they gave up too much too soon”. Accord to him, “in the end it multiplies strife instead of preventing it,” in order to “invite extensive government regulation, threaten the private enterprise system and invade individual freedoms.” Finally, the economist went even further: the compulsory arbitration system “plunges labor and management into politics,” turning “economic disputes into political disputes.”⁶⁷ Clearly, such statements were part of the widespread wisdom in the United States regarding the advantages of “voluntary and private” arbitration that predominated in that country, but they are far from mere fantasies, as a great deal of evidence in this book will demonstrate. Those assertions at least recognize what

 “Survey of the Alliance for Progress – Labor Policies and programs,” document prepared by the Subcommittee on American Republics Affairs and Committee on Foreign Relations United States Senate, 15th June 1968, 6, apud Corrêa, Disseram que voltei americanizado, 74 (emphasis mine).  Boris Shishkin, “The Case against Compulsory Arbitration.” American Federationist 54, Febuary 1947. In Johnsen, Compulsory Federal Arbitration, 231– 239.

66

2 Critique of the dualistic obsession: contracts and the law

has been concealed here: institutions designed to resolve class conflicts were produced by those same conflicts.

V It is not appropriate here to pontificate on the advantages of this or that model for labor relations systems. However, with the help of a considerable empirical input, we should better evaluate the significance of the normative power of labor courts in the organization of workers, the right to strike and the struggle for rights in the countryside and the cities. If we step down from abstract models into the real world, we will see that, in the contractual system, freedom of initiative is not so free, independent of legal constraints and difficulties of several kinds, including the organization of trade unions and union representation, as in the United States.⁶⁸ As a central element of this study, we will also see that, wherever government control of contracts is felt more intensely, the will of the parties and selfcomposition are not absent. However, according to unconditional advocates of the contractualist model, normative sentences, an inherent part of compulsory judicial arbitration, would impose the absolute intervention of the State. This is insofar as judges exercise the power to set wages and determine new working conditions, thus occupying a space that should be reserved for the free will of the contractors. The corollary of this is that the instrument of free negotiation, that is, without public intervention, could not, as has already been stated, emerge in Brazil, inasmuch as the detailed regulation of labor relations prevails through the CLT and the supposedly corrosive intervention of the Labor Courts. Such arguments are not fanciful when they seek to establish differences by contrasting two major conceptions of the regulation of labor relations. Nor are they mistaken in indicating greater and lesser freedom and the de jure and de facto independence of trade unions vis-à-vis the State. However, if we follow the line of reasoning that operates radically with the duality of autonomy-heteronomy based on a priori models, it was to be expected that in a little more than a

 Flávio Limoncic, Os inventores do New Deal: estado e sindicatos no combate à Grande Depressão (Rio de Janeiro: Civilização Brasileira, 2009); Lichtenstein, State of the Union. As Stanley Gacek himself observed, the American system produced an obvious and fundamental contradiction. Although it articulated the liberal and voluntarist principles of contractualism, the law also subverted them, permitting government interventions that strengthen capital and hurt labor. Gacek, Sistema de relações de trabalho, 31 and 44; see also Stone, “Labor and the American State.”

2 Critique of the dualistic obsession: contracts and the law

67

year before the 1964 coup, the Labor Courts would use all their normative power in labor conflicts, seeking to reconcile and arbitrate disputes between employers and workers from beginning to end. This assumption is based on the development of a situation of political radicalization, marked primarily by the control of inflation, an unprecedented explosion of strikes and the unprecedented mobilization of rural workers in relation to the laws and Labor Courts. But this is the subject of the second part of this book; let us now turn to a comparison of two systems of labor relations which, unlike the contrast with “voluntarism,” were considered virtually identical: the Brazilian system and that of Mussolini’s Italy.

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes¹ One reason for the depreciation of the Labor Courts was their normative power. Now, we must review the interpretations which claim that, during its formative stages, that institution was just a poorly disguised simulacrum of the labor judiciary that arose from Italian fascism. Much more the result of ill-founded suppositions and value judgments than historical interpretation, this conception may have been the one that most impregnated academic and juridical interpretations of the Labor Courts. It also contributed to their depreciation and led to a related lack of interest in studying them on their own terms, outside of aprioristic models. Therefore, this chapter is specifically dedicated to that subject, continuing the historiographic debate waged in this initial part of this book.

I Since the writings he produced in the 1940s, Oliveira Vianna, one of the chief architects of labor legislation during the first Getúlio Vargas administration (1930 – 1945), exhaustively repeated that Brazilian Labor Law “is not a replica” of the fascist Italian model, but “on the contrary, a work planned, executed and completed with Brazil firmly in its sights.”² About 60 years later, in 2001, the title and subtitle of the book by jurist Arion Sayão Romita say a great deal about the longevity and persistence of this question: Fascism in Brazilian Labor Law: The Influence of the Carta del Lavoro on Brazilian Labor Legislation. ³ Each author, in his own way, argues for the existence of national exceptionalism: Vianna by professing the originality of Brazilian corporatism; Romita by attributing the trademark of corporatism-for-export to Italian fascism. This controversy has given rise to revealing comparative studies of labor legislation in the two countries.⁴ However, there have been no consistent efforts to

 This chapter is a modified version of Fernando Teixeira da Silva, “The Brazilian and Italian Labor Courts: Comparative Notes,” International Review of Social History, Amsterdam, 55 (2010).  Oliveira Vianna, Problemas de direito sindical (Rio de Janeiro: Max Limonad, 1943), XV–XVI.  Arion S. Romita, O fascismo no direito do trabalho brasileiro: influência da Carta del Lavoro sobre a legislação trabalhista brasileira (São Paulo: LTr, 2001).  Michael Hall, “Corporativismo e fascismo nas origens das leis trabalhistas brasileiras.” In Do corporativismo ao neoliberalismo: Estado e trabalhadores no Brasil e na Inglaterra, edited by Angela Araujo (São Paulo: Boitempo, 2002); Mário Cléber Lanna Júnior, Duas histórias de regulação https://doi.org/10.1515/9783110638844-009

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

69

make a specific comparison between the Brazilian Labor Courts created in 1939⁵ and the Magistratura del Lavoro established in 1926 by the Mussolini regime to “harmonize” conflicts between capital and labor through the judiciary.⁶ The matter is not limited to legal and historiographic diatribes, as it is also eminently political. For those who argue that the Labor Courts are authentically Brazilian, this institution should retain its main characteristics. For those who see them as an Italian transplant, the Labor Courts should undergo a profound change to eradicate or even extinguish their fascist roots, because their continued existence supposedly anesthetizes the bargaining power of the working class. Going against expectations, however, the tentacles of the Labor Courts extended nationwide by the 1980s, while the 1988 Constitution significantly expanded their powers, as seen in the first chapter. To this day, the controversy is firmly rooted in the terrain of the “national problem,” just as it was formulated in the 1930s. By freezing the Labor Courts as they were at the time of their creation (Estado Novo), vast intellectual production has assigned it a fixed identity, whether as a genuinely national construct or an import of the fascist model, to give it an atemporal essence. What they represent today and have represented throughout their history is thus deduced from their “original sin”: the bite from Mussolini’s apple. The transplantation theory has clearly carried more weight in the formalization of that identity and already forms part of the commonplace notion in Brazilian academia about the “importation” of ideas and institutions that were “foreign to our reality” and therefore “out of place.” This is because we are supposedly incapable of thinking adequately about the “real” situation of the country in light of its attributed singularities.⁷ Therefore, it is necessary here to dissect in detail such points of view to take apart a chain of concepts that conflates fascism, corporatism, official unionism, labor legislation and the Labor Courts, giving them identical attributes and

do trabalho e do capital: um estudo comparado da legislação do Estado Novo brasileiro e do fascismo italiano. Dissertation (PhD in History), PPGH-UFRJ, Rio de Janeiro, 1999. See also Fabio Gentile, “O corporativismo fascista e sua influência na legislação trabalhista brasileira dos anos trinta.” Paper presented at the 7th Meeting of Seminars on Sociology, Politics and History of the USP Graduate Program in Sociology, held on 29th November, 2012; Idem, “Uma apropriação criativa. Fascismo e corporativismo no pensamento de Oliveira Vianna,” in A vaga corporativa: corporativismo e ditaduras na Europa e na América Latina, edited by Antonio Costa Pinto and Francisco Palomanes Martinho (Lisboa: Imprensa de Ciências Sociais, 2016).  Decree-law no. 1.237, of 2nd May 1939.  Law no. 563, of 3rd April 1926.  For a critique of this view, see Maria Stella Bresciani, O charme da ciência e a sedução da objetividade: Oliveira Vianna entre os intérpretes do Brasil (São Paulo: Editora da Unesp, 2005), 115 – 116.

70

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

political meanings. Moreover, in Brazil, corporatism and democracy were seen as antinomic and irreconcilable realities and concepts. As Fabio Gentile aptly observed, the definition [of corporatism] was inevitably associated with the experience of fascism during the two wars and therefore had strong ideological validity in the political struggles of the cold war and ended up losing all its epistemological value to become synonymous with fascism and totalitarianism, particularly for the left.⁸

Several empirically fragile studies of the Labor Courts maintained a focus on the law, so the analytical model adopted here is not limited to the (albeit necessary) examination of the formal apparatus of that institution’s juridical structure and design. In this book, I will try to interrogate its operations over time to better understand the Labor Courts as a resource that is historically apprehended by several social subjects, following a range of opposing appropriations by the parties to the dispute.

II The two main architects of the labor courts in Brazil and Italy, respectively Oliveira Vianna and Alfredo Rocco,⁹ shared four central points in common regarding the new order of the world of labor: 1) official recognition of the unions, under the strict control of the State; 2) the importance and efficacy of collective labor contracts; 3) the establishment of labor courts; 4) the elimination of strikes and lockouts.¹⁰ In this legal and juridical framework, the Labor Courts would emerge as one of the most important parts of the corporatist society it intended to create, because it affected all other components of that institutional order. The problem, however, lies in the comparative developments derived from these general principles.

 Gentile, “O corporativismo fascista,” 2.  Alfredo Rocco (1875 – 1935), a law professor at several Italian universities, joined a nationalist group in the early 1910s, broke with liberal democracy in 1914 and became a fascist in the 1920s. He was appointed Minister of Justice in 1925. His work is part of a chain that closely associates nation, State and society, with emphasis on the role of professional corporations, the organizers of a corporatist trade union state. As a strongman in the government, he became the main organizer of the fascist State. Saverino Battente, Alfredo Rocco: dal nazionalismo al fascismo, 1907 – 1935 (Milan: Franco Angeli, n.d).  These points are aptly formulated in Ibid., 425, and in Oliveira Vianna, Problemas de direito corporativo (Brasília: Câmara dos Deputados, 1983).

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

71

In the opinion of Arion Romita, “The same factual and doctrinal presuppositions underlying Italy’s creation of a specialized Court were present in Brazil when the creation of the Labor Courts was considered here.”¹¹ According to this view, they were entirely derived from the Magistratura del Lavoro in at least five ways: 1) the equal makeup of the courts (representing employees, employers and public authorities in all instances); 2) the principle of conciliation between the parties; 3) the distinction between individual and collective lawsuits (disputes); 4) the special nature of the Labor Courts within the Judiciary; 5) compulsory arbitration of conflicts and normative power. I will discuss each of these points from a comparative perspective and then reflect on the “specters of corporatism” in Brazilian historiography, as well as foreign sources of Labor Law in Brazil, other than Italy.

III One of the factors that make the two institutions similar supposedly lies in the fact that “corporatism is definitively affirmed in the equal makeup of the labor courts.”¹² However, before comparing Italy and Brazil in this regard, I should note that class representation had already been practiced in the earliest labor courts, the Conseils de Prud’hommes in France, since the 1848 revolution. Created by Napoleon Bonaparte in 1806, the Conseils played an important role in the formation of the French working class and became an instrument for mobilizing workers. It was they who fought to reform the councils, making them egalitarian, vying for control with employers and winning the right to elect union members as their representatives in that institution.¹³ The German labor courts were established in 1926 during the Weimar Republic (1919 – 1933) and are, in many ways, very similar to the Brazilian system, particularly in regard to the makeup and election of members of local and appeals courts. The lower courts consisted of a president and a vice president (career judges) appointed by the State Justice Ministry, as well as two lay judges representing employers and employees. Each of the latter was chosen by the president

 Arion S. Romita, “Justiça do Trabalho: produto do Estado Novo.” In Repensando o Estado Novo, edited by Dulci Pandolfi (Rio de Janeiro: Editora da FGV, 1999), 98.  Romita, O fascismo no direito do trabalho, 94.  Monique Kieffer, “La législation prud′hommale de 1806 à 1907.” Le Mouvement Social, Paris, 141 (1987); Philippe Couton, “A Labor of Laws: Courts and the Mobilization of French Workers.” Politics & Society, 3 (32) (2004); Alain Cottereau. “Cent quatr-vints années d′activité prud′homale. Le Mouvement Social 141 (1987).

72

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

of the ordinary district court from a list of candidates put together by labor unions and employers’ associations. As in Brazil, the class representatives – at least according to the letter of the law – were required to have “knowledge and experience in the area of labor relations and industrial life.”¹⁴ Furthermore, the makeup of the labor courts was predominantly tripartite, a model also used in Portugal, Mexico and Sweden, among other countries.¹⁵ A very similar practice was adopted by law in Brazil, but by no means in fascist Italy. The Brazilian Conciliation and Judgment Boards (lower courts), which have the authority to resolve individual conflicts, must be presided over by a magistrate and include two lay judges appointed by the president of the Regional Labor Council from among the names on the lists that the labor unions and employers put together by vote. The Regional Councils were courts of appeals for individual claims and arbitrated collective disputes, with class representatives nominated by the Federations and appointed by the President of the Republic. The supreme body was the National Labor Council, which was also egalitarian, with four representatives of employees and employers that the Ministry of Labor selected from triple lists.¹⁶ The Magistratura del Lavoro, which would deal exclusively with collective disputes, had a president and two councilors (two career judges), while two citizens (cittadini esperti) were associated with them. They were knowledgeable about the problems of production and labor and, unlike Brazil and Weimar Germany, their appointments were not recommended by the professional associations. These citizens did not equally represent the employers and employees: they were nominated by the provincial economic councils according to the differ Frieda Wunderlich, German Labor Courts (Chapel Hill: The University of North Caroline Press, 1946), 62– 64; Benjamin Aaron, “The NLRB, Labor Courts, and Industrial Tribunals: A Selective Comparison.” Industrial and Labor Review, Washington, DC, 1 (39) (1985), 36; Erhard Blankenburg and Ralf Rogowski, “German Labour Courts and the British Industrial Tribunal System.” Journal of Law and Society 1 (13) (1986), 84.  In 1914, Mexico already had conciliation and arbitration juntas, formed by equal numbers of representatives of workers and employers and a representative of the government. The Mexican case is close to the Brazilian case for the period prior to the 1946 Constitution; the Juntas de Conciliacion y Arbitraje were administrative courts linked to the Executive branch and enjoyed limited independence from the Ministry of Labor. David S. Kaplan; Joyce Sadka; Silva Mendez; Jorge Luis, Litigation and Settlement: New Evidence from Labor Courts in Mexico (Mexico: Centro de Investigación Económica, Sept. 2006 (Discussion Paper Series)), 10; Mario de la Cueva, El nuevo derecho del trabajo (Porrúa, 1979), vol 2, 530, apud Pedro B. Vieira and Ramon Castro Touron, Importância da representação paritária na Justiça do Trabalho (São Paulo: LTr, 1993), 14. Regarding the Labor Court during the Portuguese Estado Novo, see Fátima Patriarca, A questão social no salazarismo, 1930 – 1947 (Lisbon: Imprensa Nacional Casa da Moeda, 1995), vol. 1, 495.  Araújo Castro, Justiça do Trabalho (Rio de Janeiro: Editora Freitas Bastos, 1941), 104– 121.

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

73

ent branches of production and companies within the district of the Court of Appeals¹⁷ and were supposed to have a university degree or the equivalent, but not necessarily in law. A 1928 law that created tribunals and magistrates to settle individual claims allowed judges to be optionally assisted by two representatives of the parties to the dispute, but they played a merely consultative role, which made their activities insignificant.¹⁸ The laws that established the judicial institutions in fascist Italy excluded lay judges from the preceding labor courts. Prior to fascism, representatives of employees and employers, elected by the trade unions themselves, made up the Collegi di Probiviri, created in 1883 to conciliate and mediate individual disputes. In 1928, fascism abolished the Collegi di Probiviri, especially due to pressure from industrialists, who opposed any kind of parity in these institutions, going against a principle that is supposed to be characteristic of corporatism. Therefore, at least in its Italian version, this was not affirmed in the egalitarian and elective composition of the labor courts; on the contrary, it was eliminated. Alfredo Rocco was opposed to any organization grounded on representative and elective bases that limited the powers of the Executive branch.¹⁹ A lengthy debate went on in Brazil regarding the meaning of the lay judges’ activities. According to some authors, they had little influence on the decisionmaking process, respected the career judges’ decisions and even voted against the interests of their class, thereby undermining the egalitarian nature of the Labor Courts.²⁰ More recently, the subject came up again through a draft constitutional amendment submitted in 1992 by Hélio Bicudo, then a Partido dos Trabalhadores (Workers Party; PT) congressman, proposing the elimination of equal representation. During the process of revising the constitution in 1994, the de-

 The names were submitted to central corporative bodies or directly to the Court of Appeals, which sent them to the president of the Magistratura del Lavoro, which had no veto powers. Lanna Júnior, Duas histórias, 203 – 205.  Gian Carlo Jocteau, La magistratura e i conflitti di lavoro durante il fascismo, 1926 – 1934 (Milan: Feltrinelli Editore, 1978), 25, 42, 107– 108.  Louis Rosenstock-Franc, L’économie corporative fasciste en doctrine et en fait (Paris: J. Garnher, 1934), 57 and 179; Gian Carlo Jocteau, “L’ordinamento corporativo.” In Storia del sindacato: dalle origini al corporativismo fascista, edited by Maurizio Antonioli et al. (Veneza: Marsilio Editori, 1982), 210; Idem, La magistratura e i conflitti, 143.  John D. French, Drowning in Laws: Labor Law and Brazilian Political Culture (Chapel Hill: The University of North Caroline Press, 2004), 46 – 53; Kenneth S. Mericle, “Corporatist Control of the Working Class: Brazil.” In Authoritarianism and Corporatism in Latin America, edited by James Malloy (London: University of Pittsburgh Press, 1977), 3113; Antonio Alvares Silva, “Marcos legais do corporativismo no Brasil.” In O mundo do trabalho: crise e mudança no final do século, edited by Carlos Alonso B. de Oliveira et al. (São Paulo: Scritta, 1994), 125.

74

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

bate intensified following the submission of over 20 amendments on that matter, which ranged from the elimination to the retention of class representation, as well as 879 proposed amendments regarding the Labor Courts and judges in general. Curiously, the main proponents of eliminating lay judges, such as the Central Única dos Trabalhadores (Central Workers’ Union; CUT), born in the context of “new trade unionism,”²¹ and most Labor Court judges, almost failed to brandish arguments against corporatist representation. They were essentially opposed to the following aspects: nepotism and the co-optation of union leaders; highly paid lay judges; lack of vital legal knowledge; giving lay judges equivalent status to their career counterparts; the anachronistic nature of this kind of representation and biased judgments. The lay judges also lobbied intensively in Congress to convince politicians that their existence was essential to keeping the courts democratic, acting as a system of weights and balances to the decisions of career judges, the class-related nature of the courts, the speed of the proceedings and the Labor Courts’ essential function of conciliation. In 1999 alone, the Senate voted 64 to six to eliminate equal representation.²² In any case, for decades, the tripartite and egalitarian structure of the Labor Courts in Brazil was a legally enshrined institution, with formal and functional characteristics that were very different from the Magistratura del Lavoro. Brazilian authors were familiar with this model even before corporatism was introduced in Italy.²³ In 1920, the jurist Augusto Viveiros de Castro argued in favor of “Industrial Boards” that should be “made up of members elected by the employers and workers, with a government representative presiding”.²⁴ We can assume that Viveiros de Castro was aware of the ideas that existed in the Italian “legal environment,” just as Rocco may have systematized and developed his proposals on the basis of experiences and debates that were already present in international legal circles.

 See chapter 1.  Pedro Benjamin Vieira e Ramon Castro Touron, Importância da representação paritária na Justiça do Trabalho (São Paulo: LTr, 1993); Tulio Velho Barreto, “O debate recente acerca da representação classista na Justiça do Trabalho.” Cadernos de Estudos Sociais, Recife 2 (11) (1995); Idem, “Os juízes classistas na berlinda.” Política Hoje 7 (4) (1997); Eli Alves Silva, “Representação classista na Justiça do Trabalho”. Consultor Jurídico, 23 Jun. 1998. https://www.conjur.com. br/1998-jun-23/representacao_classista_jt (accessed 14th April 2010); CCJ aprova fim dos juízes classistas, 14th April 1999, http://www.direito2.com.br/asen/1999/abr/14/ccj-aprova-fim-dos-jui zes-classistas, accessed April 14, 2010.  See Marcelo Antonio Chaves, A trajetória do Departamento Estadual do Trabalho e mediação das relações de trabalho (1911 – 1937) (São Paulo: LTr, 2012), chapters 1 and 2.  Augusto Viveiro de Castro, A questão social (Rio de Janeiro: Livraria Editora Conselheiro Candido de Oliveira, 1920), 121.

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

75

IV In 1938, the jurist Theotonio Monteiro de Barros Filho stated that “the corporative regime implicitly contains the ideas of conciliation and arbitration.”²⁵ Undoubtedly, these “ideas” served the collaborationist aims of Italian and Brazilian corporatism. However, the attempt to conciliate was and has been obligatory in several countries, conforming a legal precept widely established in international labor legislation.²⁶ Conciliation en masse was a much earlier invention, which can be found once again in the French Conseils de Prud’hommes. This procedure came to be employed in nearly all cases, a trend that was firmly established at least before the 1930s.²⁷ According to the historian Philippe Couton, the French workers’ and unions’ interactions with the labor courts forged a historical “culture of conciliation” among them²⁸ without having gone through a strictly corporatist experience.²⁹ In the Weimar Republic, there were high rates of conciliation between parties and they remained that way after the end of the Third Reich.³⁰ Furthermore, as we have seen in the previous chapter, even countries like the United States, Canada and the United Kingdom created government institutions to encourage agreements between capital and labor. It is therefore easy to collect apparently similar specimens at random, although they belong to very different national landscapes. The most important thing to observe is that, paradoxically, the type of conciliation that Italian corporative bodies practiced was one of the main causes of the Magistratura del Lavoro’s poor performance. How can we understand this paradox if one of the main

 Apud Romita, O fascismo no direito do trabalho brasileiro, 94.  Samuel Fernando de Souza, “Coagidos ou subordinados”: trabalhadores, sindicatos, Estado e as leis do trabalho nos anos 1930. Dissertation (PhD in History) IFCH-UNICAMP, Campinas, 2007, 59.  Initially, the Councils reached a 96 percent conciliation rate. However, since the 1950s, a growing number of cases have been adjudicated without conciliation, a trend that had already been clearly established since the 1920s. Alain Cottereau, “Cent quatr-vingts annés d′activité,” 6 – 8.  Couton, “A Labor of Laws.”  France did, however, go through a phase of corporatism during the Vichy regime. Olivier Dard, “O corporativismo na França de Vichy.” In Pinto and Martinho, A vaga corporativa.  Between 1901 and 1918, before the “corporatist conciliation,” about 40 percent of all cases taken to the industrial courts were settled; see Wunderlich, German Labor Courts, 33. In the 1970s, the lower courts settled between 30 and 40 percent of the cases that were taken to court; see Thilo Ramm, “Labor Courts and Grievance Settlement in West Germany.” In Labor Courts and Grievance Settlement in Western Europe, edited by Bejamin Aaron (Los Angeles: University of California Press, 1971), 117.

76

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

objectives of the judicial colleges was precisely to reconcile conflicting interests? To better understand the issue, I should explain that the first step towards conflict resolution was an attempt at conciliation between the union and representatives of the companies involved. The agreements reached by the unions generally led the workers to give up many of their rights. When attempts to reach agreement failed within the sphere of the company, the union referred the dispute to the employers’ association and an arbitration committee was formed. As a result, trade unions became the ideal locus for the examination of a myriad of controversies. When conciliation failed, individual disputes had to be referred to tribunals and special courts that were part of the ordinary justice system (Court of Appeal). However, they did not exceed 20 percent of the total number of complaints, while just over half ended in a court order. In 1932, according to one French observer, a little over 80,000 conflicts were referred to the trade unions, who handled about 51,000 cases, so just 2,819 (a mere 5 percent) were arbitrated by the courts.³¹ It could be concluded that the unions championed workers’ interests, but they were strictly subordinated to the dictates of the fascist party and government. Furthermore, the Italian government created a large number of conciliatory bodies with overlapping powers, such as the Provincial Economic Council, headed by the mayors, and the Provincial Intersessional Committees, which dealt with disputes of greater political and financial importance, making the tribunals virtually inoperative.³² In Brazil, class associations did not bear the burden of obligatory conciliation of individual claims inside and outside the judicial arena. This fell strictly and exclusively within the jurisdiction of the Labor Courts. Conciliation of individual claims was the responsibility of the Conciliation and Judgment Boards, the Regional Courts and the Superior Labor Court. Moreover, during some periods, such as 1947, arbitrated proceedings far exceeded conciliations. Out of a total of 67,273 complaints handled by the 54 Boards in that country, 18,543 were conciliated and 28,925 arbitrated, which reveals a high degree of judicialization of labor conflicts, requiring the constant intervention of judges.³³ What is more, the effectiveness of the institute in reconciling conflicts in the legal arena is questionable as an undisputed mechanism for class collaboration, at least according to the principles of corporatism. In the day-to-day practice of

 Rosenstock-Franc, L’économie corporative, 187.  Jocteau, La magistratura e i conflitti, 130 – 133, 144– 145, 149 – 151.  Revista do TST 2 (1948), apud Edinaldo Souza. “Bastidores da disputa trabalhista em comarcas do interior (Recôncavo Sul, BA, 1940 – 1960).” História Social, Campinas, 14/15 (2008).

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

77

the courts, their conciliatory purposes did not achieve the desired “social peace.” In fact, the instrument of conciliation gave rise to conflicts, which were not limited to disputes over financial gains. They also involved notions of personal honor, professional dignity and class solidarity.³⁴ The Solomonic principle of a “equal division” not only created injustices and led to reactions to the denial of rights but formed part of the pragmatic calculations of employees and employers in the complex game of judicial negotiations.³⁵ The number of cases settled and workers’ access to available legal services depend less on the corporatist structure of the courts and more on the degree of formality in the court proceedings and the number of disputes judged, in addition to the possible success of workers in obtaining a positive outcome to their claims in court. In Germany, as well as in Brazil and France, conciliation proceedings were solidly and traditionally constructed, whereas in the UK, for example, the legal structure was much more formalist and therefore restrictive for workers.³⁶ Finally, the creation of labor courts is inherently an official recognition of class conflicts. Studies have overlooked that, for some of the architects of Social Law, the Labor Courts were also a place of confrontation between classes and therefore aimed at doing more than merely reconciling interests. None other than Waldemar Ferreira, the jurist entrusted with preparing an opinion in 1936 on the draft bill for organizing the Labor Courts, made the following observation: This is, moreover, the salient point of the egalitarian courts. Classes confront each other within them…. There would be no class struggle and it would be unjustifiable to create special tribunals to maintain the unstable balance in which they find themselves, each desperately struggling for its economic and political supremacy.

 Ibid.; Souza, “Coagidos ou subordinados.”  In her study of the São Jerônimo coal workers from 1946 to 1954, Clarice Speranza analyzes thousands of cases that ended in conciliation. The author reveals the enormous complexity of the situations and expectations that led either mine owners or workers to prefer to enter into or reject an agreement. By involving compliance with or evasion of legal norms, conciliation is viewed as a phenomenon that goes beyond the legal field, its fragilities, institutions and establishment of norms. Other variables exerted equal or even greater pressure to adopt a given stance in the face of a violated right or the expectation of monetary and/or symbolic compensation. Clarice C. Speranza, Cavando direitos: as leis trabalhistas e os conflitos entre os mineiros de carvão e seus patrões no Rio Grande do Sul (1940 – 1954) (Porto Alegre: Anpuh, Oikos, 2014).  Blankenburg and Rogowski, “German Labour Courts,” 70.

78

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

A careful interpreter of what was going on in other countries in matters related to Social Law, Ferreira continued: “The predominant legislation in most countries allows the existence of classes.” But he went even further: It allows it. Encourages it. Organizes it.… Accelerates the struggle between them with the aim of buffering it. Collective work contracts, for example, are a result of that conflict. So, too, are the labor courts when invested with an egalitarian form.³⁷

We were well aware that the Labor Courts were introduced to harmonize conflicts, but few analysts recognized that they also stimulated them, despite the aim of acting as a “buffer.”

V It is questionable whether the distinction between individual and collective disputes would also have been introduced in Brazil on the same terms adopted by Italian jurists. That distinction was also present in other systems of labor relations and was known to Brazilian lawmakers and jurists, even before the creation and institutionalization of the Labor Courts.³⁸ The Weimar Republic, for example, legally distinguished between what jurists called “disputes of interests” (individual) and “disputes of rights” (collective),³⁹ which were judged, as in Brazil, by different instances. However, the Italian courts follow a different model from their Brazilian counterparts because, as we have seen, collective disputes were a matter for the Magistratura del Lavoro, while individual cases were subordinated to the magistrates or the courts.⁴⁰ Rather than differentiating between the nature of the disputes, the heart of the problem lies in the procedures adopted in collective lawsuits. In Italy, they could only be referred to the courts after all conciliation efforts had been exhausted by the Federation and Confederation of Workers, followed by the union.⁴¹ Thus, recourse to the courts was the last possible channel of mediation between the parties, although it played a central role in collective agreements, aiming above all to contain strikes. In Brazil, the purpose of going to court

 Waldemar Ferreira, Princípios de legislação social e de direito judiciário do trabalho (São Paulo: Editora Limitada, 1938), vol. 1, 50 (emphasis mine).  Castro, A questão social, 40.  Ramn, “Labor Courts,” 86.  Romita, “Justiça do Trabalho,” 97.  Rosenstock-Franc, L’économie corporative, 57.

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

79

was the same, although the initiative would fall to the trade unions, not federations and confederations, except on a sporadic basis. However, the basic difference between the two national cases must be sought in the workings of the justice system. This analysis must also consider other time periods than those marked by the presence of dictatorial regimes, in addition to going beyond the formal limits of the legal structure. Between 1926 and 1937, the Magistratura del Lavoro only judged 41 collective disputes, of which 22 were reconciled, three dropped and just 16 ended in a judicial decision.⁴² The disputes related to the application or breach of contracts were broken up into a myriad of individual disputes. The reason for this poor functioning of the Magistratura del Lavoro is linked to the fact that Italian fascism did not permit any kind of class conflict, which had supposedly been overcome by the new corporatist order. Thus, the party and the Executive Branch, through provincial councils, the discretionary action of the Ministry of Corporations and, above all, the Public Prosecutor’s Office, preferred to intervene in such disputes, vacating the judicial arena. The Public Prosecutor’s Office was one of the main instruments of intervention for the Executive branch in the operations of the fascist Labor Courts.⁴³ The Italian judiciary therefore became an appendage of the government’s wage policy. Even so, its existence was enough to prove inopportune in a regime in which class conflict tended to be covered up and avoided at all costs. Mussolini himself warned that recourse to the Magistratura del Lavoro should not become a habit, avoiding the involvement of judges at all costs.⁴⁴ Fascist regimes were in fact strongly committed to abolishing the jurisdiction of labor courts in conflicts and collective bargaining, as was the case in Germany during the Third Reich, which only maintained their jurisdiction for individual disputes.⁴⁵ Despite the differences in size and population between Brazil and Italy, when it came to collective disputes, the Brazilian Labor Courts were far from inoperative, unlike their counterparts in Fascist Italy. Between the mid-1940s and 1980, the Regional Labor Court of the Second Region alone, in São Paulo, produced over 20,000 labor court records based on collective disputes. Between May 1941 and December 1949, for example, the nation’s eight regional courts re-

   

Jocteau, “L’ordinamento corporativo,” 204– 205. Lanna Júnior, Duas histórias, 201. Jocteau, La magistratura e i conflitti, 46 and 99. Ramn, “Labor Courts,” 86 – 87.

80

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

solved 1,232 collective disputes, of which 573 were reconciled and 516 ended in a judicial decision.⁴⁶ Thus, the effectiveness of rights may depend on both the institutional design of labor courts and political regimes. The greater or lesser weight of either factor should be viewed from an historical perspective.

VI The Italian Alfredo Rocco criticized the countries that adopted conflict arbitration through special courts. In his view, an arbitrator is not a judge, so it was not necessary to turn to a “special court” that is tripartite and egalitarian in nature. All that was necessary was to use the ordinary tribunals, which were accustomed to making decisions and judgments independently from the Executive branch and free of political pressure. At the same time, Rocco was driven by the desire to make everything gravitate around the Executive branch. The paradox in his argument lay in the fact that the decisions taken in the terrain of labor relations had political and economic implications, which jeopardized the fiction of the courts’ impartiality. The solution found was to subordinate the labor courts’ jurisdiction to the Court of Appeal, thereby avoiding the creation of a special jurisdiction, such as the former Collegi di Probiviri, which, according to Savelino Battente, Rocco’s biographer, put the institution in a critical situation.⁴⁷ Therefore, the “special” nature repeatedly attributed to the Magistratura del Lavoro merits another look, insofar as it became part of the ordinary courts. Incidentally, an Italian jurist observed in 1934 that the matter was controversial and there was no “predominant opinion” among various authors.⁴⁸ Thus, by linking the judicial bodies to the courts of appeal, Italian fascism opted for a middle ground between special and ordinary jurisdictions to guarantee a form of political and hierarchical control over the Magistratura del Lavoro.⁴⁹ It is interesting to note that, in Brazil, the voices raised against Oliveira Vianna’s proposed draft bill in the Chamber of Deputies between the 1934 Consti-

 Geraldo Bezerra de Menezes, Dissídios coletivos do trabalho (Rio de Janeiro: Departamento de Imprensa Nacional, 1950), 203.  Severino Battente, Alfredo Rocco: dal nazionalismo al fascismo, 1907 – 1935 (Milão: Franco Angeli, n.d), 430.  Alessandro Raselli, La Magistratura del Lavoro: giurisdizione ed azione (Padova: CEDAM, 1934), 48.  Jocteau, La magistratura e i conflitti, 362– 365.

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

81

tution and the establishment of the Estado Novo in 1937 did not realize that the Labor Courts were also different from the Italian model with regard to the place of the institution in the distribution of the Executive and Judicial branches.⁵⁰ The Brazilian institution neither originated from nor was organically linked to the ordinary courts, as in Italy. The lacunar Article no. 139 of the 1937 Constitution determined that “the provisions of this Constitution concerning the competence, recruitment and prerogatives of the ordinary courts” did not apply to the Labor Courts. It is often said that the institution was conceived as an agency of the Executive branch, an arm of the Ministry of Labor.⁵¹ The decree-law of 1939 that created the Labor Courts did not give them any administrative functions. The general consultant of the Republic considered this to be “a court coordinated with the Ministry of Labor.”⁵² It had been formally established as a special body, so the execution of its judgments was now the responsibility of its own courts, and the Federal Supreme Court further recognized the judicial nature of the Labor Courts.⁵³ It was only through the Constitution of 1946 that the Labor Courts were incorporated into the Judicial branch as an autonomous and special institution. According to a study by Salete Maccaloz, the Labor Courts’ transition to the judiciary gave them “relative independence” without a “political agenda.”⁵⁴ During the period between the end of the Estado Novo (1945) and the civilian-military coup of 1964, when it was possible for corporatism and democratic institutions to coexist during a strong upsurge in the labor movement, the Labor Courts took on a life of their own. Finally, the organization of the Magistratura del Lavoro was simpler, since the courts of appeal in each region were its only agencies, and the local public administration exerted a major influence. In Brazil, the hierarchical separation between the Boards, Regional Councils and National Labor Council indicates a greater centralization of the courts at the federal level.⁵⁵

 Ver Ligia Lopes Fornazieri, Entre conflitos e debates: a construção dos direitos trabalhistas no Brasil (1934 – 1945). Thesis (masters in History) – IFCH-Unicamp, Campinas, 2014.  Romita, O fascismo no direito do trabalho, 102.  Ibid., 80.  Orlando Gomes and Elton F. Gottschalk. Curso de direito do trabalho (São Paulo: Forense, 1971, 25) (emphasis in original).  Salete Maria Polita Maccalóz. Representação classista na Justiça do Trabalho (Rio de Janeiro: Forense, 1984), 88.  Lanna Júnior, Duas histórias, 201– 202.

82

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

VII “Always taking the place of strikes and lockouts whenever possible: this is the primary function of the Labor Courts.”⁵⁶ These words could have come from the pen of an Italian magistrate, but are rather from the Brazilian jurist Dorval Lacerda, one of the authors of the Consolidation of Labor Laws (CLT), written in 1945. In his view, the most appropriate instrument for that “replacement” should be a “collective judgment” in the form of obligatory arbitration of collective disputes. When the parties failed to reach an agreement, the unions had the prerogative of taking their disputes to the regional courts to overcome the impasse. In the case of strikes, the president of the Court or the Labor Court Prosecutor could have the prerogative. The court’s decision should be normative, that is, it would have the power to create norms and stipulate working conditions based on the solutions to the collective disputes. Those normative powers were regulated by the 1946 Constitution, which unequivocally extended them to all workers in a given category or branch of production, whether or not they were unionized. Prior to 1946, however, the Consolidation of Labor laws did not permit the unions to enter into collective bargaining agreements as the legal representatives of an entire professional category – they could only represent union members. This, too, distinguished it from Italian law.⁵⁷ The origins of normative power may lie in the compulsory State arbitration that Australia and New Zealand introduced in the early twentieth century. Brazilian jurists were aware of that system long before the 1930s. For example, based on amply cited sources, Viveiros de Castro discussed the conciliation and arbitration bodies of over a dozen countries, giving a detailed examination of Australia and New Zealand.⁵⁸ In the assessment of Orlando Gomes and Elson Gottschalk, the compulsory arbitration of collective disputes did not originate, as is mistakenly supposed, from the “magistratura del lavoro” of Italian fascism; as far back as 1904, in Australia and New Zealand, [obligatory arbitration] was practiced through industrial tribunals, both administrative and judicial in nature, since they determined arbitration awards with effective decisions.⁵⁹

 Dorval Lacreda, “Sentença Coletiva.” Boletim do Ministério do Trabalho, Indústria e Comércio, Rio de Janeiro, 135 (1945), 95.  Elton F. Gottschalk. Norma pública e privada no direito do trabalho (São Paulo: Livraria Acadêmica Saraiva & Cia., 1944), 359.  Castro, A questão social, 148 – 163.  Gomes e Gottschalk, Curso de direito, 924.

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

83

According to a study by Raymond Markey, the Australian system was unique in several respects, as well as surprising for not following the “voluntarist” British way. Therefore, it merits a quick introduction, particularly because it may have inspired much of what other countries such as Brazil (perhaps, in part, Italy as well) have adopted. Firstly, well before fascist corporatism, the central aim of compulsory arbitration was more to reduce or nullify labor disputes and less to regulate collective agreements.⁶⁰ Second, State interference was widely practiced, with Supreme Court justices heading conciliation and arbitration commissions. Third, the decisions handed down by such committees had the force of law. Agreements freely reached between the parties through collective bargaining were “certified” by the courts and gained the status of judicial decisions. Fourth, a single party could go to court over collective disputes, obliging the other party to participate in the judicial process, and both litigants had to obey the decision or face penalties. Fifth, individual workers could only be represented by “registered trade unions,” whose rules of operation had to undergo the scrutiny of an Industrial Registrar.⁶¹ At least from the formal standpoint, the similarities with Brazilian Labor Courts are striking. What is more surprising is that the institution of compulsory arbitration by the State in Australia was not the work of bourgeois reformers but devised and enthusiastically defended by the Australian Labour Party with the express backing of most of the labor movement. The strength of that movement between 1900 and 1914 greatly impressed activists and politicians from other countries, who were mainly fascinated by the “social experiment” of a “collectivist State” that could ally social welfare with democracy, thereby prolonging and reinforcing the myth that Australia was a “worker’s paradise.”⁶² As Raymond Markey concluded, “State arbitration has created its own clients in unions and employers’ associations. Largely for this reason, it survived intact for almost a century”⁶³

 Also in the early twentieth century, reformist governments in Canada legislated systems of conciliation and arbitration in order to avoid class conflicts. Dale Gibson, “Collective Labour Law in Canada, 1812– 1892.” In The Rise and Development of Collective Labour Law, edited by Marcel van der Linden and Richard Price (Bern; Brussels; Frankfurt; New York; Vienna: Lang, 2000).  Raymond Markey, “The Development of Collective Labour Law in Australia, 1788 – 1914.” In: Ibid., 58 – 77.  Neville Kirk, Comrades and Cousins: Globalization, Workers and Labour Movements in Britain, the USA and Australia from the 1880s to 1914 (London: The Merlin Press, 2003), chapter 2.  Markey, “The Development,” 77.

84

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

(perhaps this will help us think again about the longevity of the Brazilian Labor Courts). Other countries, whether corporatist or otherwise, would later adopt important parts of the Australian model of compulsory arbitration and the institute of normative power, which Leon Fink called the “Australasian road.”⁶⁴ When considering the system then in force in Australia, as early as 1919 Viveiros de Castro warned that special labor courts “should be obligatory, not only for conflicting parties but also for all stakeholders in the same branch of industry.” Thus, he underscored the principle that judicial decisions should be extended to all workers in the same economic activity, just as Oliveira Vianna would advocate a few years later.⁶⁵ The normative power of collective agreements was also established in other countries, such as Weimar Germany, Mexico, Belgium and Portugal. Perhaps Oliveira Vianna was right to say that there was not necessarily any relationship between normative powers and corporative regimes.⁶⁶ Finally, instead of voluntary collective agreements in the contractualist tradition, the concept of a legal apparatus capable of arbitrating the conflicts was a late nineteenth-century invention that predated the typically corporatist judicial systems by many years.⁶⁷

VIII The law governing collective agreements in Italy stated that, in order to establish new working conditions, the Magistratura del Lavoro had to judge each case “fairly, seeking to reconcile the interests of the employers and workers, and in all cases, safeguarding the overarching interests of production.”⁶⁸ In this regard, undoubtedly, Italian lawmakers clearly influenced the terms adopted in Brazil in relation to this matter. According to Decree-law no. 1,237 of 1939, which regulated the Labor Courts, “fairness” (equidade), in its technical-legal sense, is the norm

 Leon Fink, “Where the Grass is Greener: International Influences on the Formation of National Labor Laws.” Paper presented at the II Seminário Internacional Mundos do Trabalho, Rio de Janeiro, 30th November 2012, 3.  Castro, A questão social, 148.  Vianna, Problemas de direito corporativo, 78 – 85. In France, the Conseils de prud’homme, through their jurisprudence, also created laws. Monique Kieffer, “La législation prud′hommale de 1806 à 1907.” Le Mouvement Social, Paris, 141 (1987), 20.  Marcel van der Linden and Richard Price, “Introduction.” In Idem, The Rise and Development, 12.  Rocco d′Alffonso, Construire lo stato forte (Milan: FrancoAngeli, 2004), 199.

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

85

that harmonizes “the interests of litigants with collective interests, so that no class or private interest prevails over the public interest.” Thus, in Brazil and Italy, the strict legal rule was relaxed in the name of agreement between the parties and, above all, the “overarching interests of production” or, more generally in Brazil, the “public interest.” Under the sacred mantle of “national interests,” judicial decisions in Italy suffered from the overwhelming weight of the Executive branch’s power. The contractual activities of the Italian labor courts closely followed the regime’s wage policy, making the productivist principle of legal-economic nationalism that Rocco advocated predominate over the distributionist principle.⁶⁹ Paolo Ungari goes even further: Fascist Italy did not have an authentic Labor Court, but instead “a government tool aimed at controlling the labor market in keeping with economic policy.”⁷⁰ Collective agreements were obligatory and covered all members of a given category of workers, subject to government authorization. “Contractual freedom” faced numerous limitations and the obligation to judge them according to the “overarching interests of production” led to repeated wage reductions for workers in the 1920s and 1930s. This was done with the collaboration of the union leaders themselves, under pressure from industrialists, clearly with the approval of the Fascist regime.⁷¹ In short, the unions “were no longer the protectors of the workers’ interests but organizations necessary to control production.”⁷² Without a doubt, Italian lawmakers had a major influence on the normative nature of the Brazilian Labor Courts, which should not be minimized. However, as Fabio Gentile has aptly demonstrated, it seems that Brazilian jurists appropriated the Italian corporatist model and modified and adapted it, stripping it of its totalitarian roots. Avoiding an explanation of the reproduction of foreign models and emphasizing the importance of studies of the process of circulating ideas, Gentile observes that there was “a creative appropriation of a repertoire, as well as a language, within a historical context different from that of Fascist Italy at the time.” Brazilian jurists, such as Oliveira Vianna, adopted the authoritarian principle of the State as judge and regulator of class conflicts, “but not of a State that wants to subordinate the social dimension through totalitarian control” or the elimination of the boundary between the public and private spheres.

 Battente, Alfredo Rocco, 424.  Paolo Ungari, Alfredo Rocco e l’ideologia giuridica del fascismo (Brescia: Morcelliana, 1974), 94.  Ibid., 200; Rosenstock-Franc, L’économie corporative, 180 – 181, 200.  Goffredo Adinolfi. “O corporativismo na ditadura fascista italiana.” In Pinto and Martinho, A vaga corporativa, 45.

86

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

This was due to an intellectual operation that was based on supposedly neutral technical-legal terms, attempting to separate legal norms from the political context in which they were developed.⁷³ Furthermore, we should not abruptly and automatically conclude that the Labor Courts in Brazil were modeled on their Italian counterparts without taking into account that institution’s different functions in a range of political contexts and regimes. It should be recalled that, unlike Italy, Spain and Portugal, Brazil’s corporatist system survived the dictatorship that gave rise to it.⁷⁴ Despite the similarities, inspirations and influences, this comparison cannot be limited to “the ghosts of the New State” to which we are still supposedly bound.⁷⁵ Arion Romita makes no bones about pontificating that “the passing of time means nothing to the Labor Courts.”⁷⁶ Based on the sole (but no less important) argument that normative power was inconsistent with the democratic order introduced by the 1946 Constitution, Romita has built a long bridge between the Estado Novo, which ended in 1945, and the military dictatorship established in 1964. In so doing, he overlooks 20 years of intense activity by the Labor Courts in collective disputes. Thus, we must unpack the identity of the Labor Courts that we have already discussed, which was established at their inception and supposedly went unchanged in the following decades (in the second part of this book, I will give a more detailed analysis of the possibilities and limitations of normative power prior to 1964).

IX We still lack detailed studies of the ways in which the juridical ideas of Italy and other countries were “transferred” to Brazil, but Oliveira Vianna provides intriguing clues. Despite his insistence that Brazilian labor laws were not a copy of the Carta del Lavoro, he recognized the “inclination towards fascism” on the part of the “technicians” charged with drafting laws on unions and labor, who were familiar with the “Italian writers of treatises on Social Law and Corporative Law.” According to Vianna,

  79.  

Gentile, “O corporativismo fascista,” 24– 25. Michael Hall, “Labor and the Law in Brazil.” In Linden and Price, The Rise and Development, This was Romita’s conclusion in O fascismo no direito, 101. Romita, “Justiça do Trabalho,” 95.

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

87

their works arrived here in abundance; and reams and reams of them accumulated in the booksellers’ windows. There were even shops specializing in that sort of material, such as the Livraria Boffoni, which became a Mecca for all those interested in these new and fascinating subjects. The works of Barassi, Zanobini, Costamagna, Cioffi, Palopoli, Carnelutti, and the luminous plethora of jurists of Mussolini’s corporatism arrived there and soon disappeared from the shelves, absorbed by the thirst for knowledge of the scholars of the new doctrine.

For the avoidance of doubt about that influence, he added: “in the lectures of improvised technicians and specialists… Italian was spoken almost as often as Portuguese.”⁷⁷ However, as Vianna himself emphasized, his writings contain several references to other international experiences, including mentions to French solidarism, which had a strong influence on his intellectual output.⁷⁸ In the debates regarding the proposed organization of the Labor Courts in 1935, Vianna rejected accusations of fascist influences on the document. Instead, he preferred to bring it closer to the principles of American constitutional law, where, according to him, the US Supreme Court recognized the constitutionality of delegating normative powers, referring to the regulatory agencies of the New Deal.⁷⁹ For that voracious reader of American jurists, the decline of liberal democracy was expressed in the march towards corporatism in the United States.⁸⁰ Invoking the model of the New Deal may have given Vianna the alibi he needed to defend himself against the charge of giving birth to a fascist monster. This is because the American experience inspired him to justify the “delegation of powers” that gave priority to the Executive branch in the creation of the Labor Courts and made them, according to some interpretations, an authority with the legislative power to “create the law” instead of to “apply it.” In-depth research on the subject may be more conclusive about Vianna’s appropriations of the legal innovations of the New Deal, but I would venture to say that he developed the interpretation that best fit his authoritarian thinking.⁸¹ This Brazilian intellectual was not alone in making that interpretation. As we have seen in the previous chapter, the perception that the New Deal was a

 Oliveira Vianna, “Razões da originalidade do sistema sindical brasileiro.” In Idem, Ensaios inéditos (Campinas: Editora da Unicamp, 1991), 278 – 279.  Bresciani, O charme da ciência, chapter 6.  Vianna, Problemas de direito corporativo, 48 and 57.  Bresciani, O charme da ciência, 422, 434– 436 and 439.  For an interpretation of the New Deal by Oliveira Vianna, see Melissa Teixeira, “Making a Brazilian New Deal: Oliveira Vianna and the Transnational Sources of Brazil’s Corporatist Experiment.” Journal of Latin American Studies 3 (50) (August 2018).

88

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

corporatist experiment was also in vogue in the United States in the 1930s. Furthermore, the sacrifice, even if temporary, of some democratic principles, such as the separation of powers, was seen as justifiable to save the country from the clutches of the economic crisis, communism, fascism and, during World War II, the Axis powers. Even the greatest advocates of American democracy seemed to harbor serious doubts that liberal-democratic institutions would be capable of taking on such enormous challenges. A “temporary” or “constitutional dictatorship” would relieve the government of the obligation to respect the traditional separation of powers. However, as Ira Katznelson has aptly demonstrated, except for the early months of the New Deal, when lawmakers delegated powers to the president, the fact is that Congress fully regained its legislative prerogatives, so that “America’s separation of powers and democratic lawmaking [were sustained] as core features of the rule of law.”⁸² In any case, according to Oliveira Vianna, the “abundance of foreign citations” in the writings of the jurists of his time was “a means of comparison, as information on what has been done before or of what exists in other peoples.”⁸³ In conclusion, he exhorted: “Anyone who makes a comparative study in this regard will see that… there are many points, albeit secondary, that distinguish our social legislation from the social legislation of other peoples.”⁸⁴ It is interesting to note, as careful as he was to defend his nationalism and the originality of his corporatist project, Vianna allowed, possibly in a Freudian slip, that the Brazilian labor relations system was only different from those of other countries in “secondary points.” Put another way, essentially, the labor laws built up under the Vargas government were not unique to Brazil. By accepting Vianna’s exhortation to make a comparison, this chapter has sought to demonstrate that, “in many points,” the Brazilian Labor Courts and the Magistratura del Lavoro did differ greatly, despite their similarities. However, we must attribute to Oliveira Vianna’s nationalism his repeated and resounding declarations about the originality of the trade union system and the judiciary structure of labor in Brazil. Anyone who takes the trouble to compare the labor courts of several countries will quite possibly discover that no formal element of the structure of the Brazilian labor Courts fully originated from Brazilian corporatism, if we are looking for our own nation’s innovations. By extending the comparison to other nations, we will see that there are many differences be-

 Ira Katznelson, Fear Itself: The New Deal and the Origins of our Time (New York: Liveright Publishing Corporation; London: W. W. Norton & Company, 2013), 125.  Vianna, Problemas de direito sindical, XIV.  Vianna, Direito do trabalho e democracia social (São Paulo: José Olympio, 1951), 14.

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

89

tween the labor courts of countries with similar political systems, as well as juridical similarities between countries with very different forms of government.⁸⁵ There must have been a large number of creative appropriations and adaptations of foreign models to specific realities in different national experiences. It is difficult, if not impossible, to determine who would have copied exactly what from whom, for “Italian fascism itself originally appropriated the question of “social democracy” and the legal theory of collective labor agreements from the French and German debate on the social State.”⁸⁶ Turning once again to the Conseils de Prud’hommes in France, since the beginning of the twentieth century, the State was increasingly active in the world of work. We will find – as Brazilian jurists had already discovered in the 1920s and 1930s – that in France, as in Brazil, they sought the prior recourse of conciliation; labor courts with judicial characteristics and equal and elected members were institutionalized, according to the principle of proportional representation; relations between employers and employees were judicialized, due, in part, to the fragility of collective bargaining; the organization of workers and the judicialization of their conflicts were rooted locally; the courts were used as a way of filling a void left by scanty union membership, since the courts and trade unions could defend the interests of non-union members.⁸⁷ In France, the term “juridical unionism” was even used to refer to the heavy involvement of the trade union movement with the Conseils de Prud’hommes.⁸⁸ Philippe Couton has posited the suggestive theory that the Conseils would have disappeared if a solid form of corporatism, cooperative socialism or contractualism based on free collective bargaining had flourished in France.⁸⁹ Neither of those alternatives gained solid ground in Brazil either. In Germany’s Weimar Republic, we have found that the legal organization of labor was more similar to the Brazilian model, albeit with the major difference that the German trade union structure was independent, whereas in Brazil the unions were directly linked to the State. German labor law influenced Brazilian jurists such as Pontes de Miranda, Waldir Niemeyer, Evaristo de Moraes Filho

 Ralf Dahendorf, As classes e seus conflitos na sociedade industrial (Brasília: Editora da UNB, 1982), 202.  Gentile, “O corporativismo fascista,” 16 (emphasis mine).  Kieffer, “La législation prud’hommale”; Cottereau, “Cent quatr-vingts annés d′activité”; Couton, “A Labor of Laws.”  Laurent Willemez, Le droit du travail en danger: une resource collective pour des combats individuels (Broissieux: Éditions du Croquant, 2006).  Couton, “A Labor of Laws,” 354.

90

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

and Egon Gottschalk, all leading lights of the nation’s judicial Olympus.⁹⁰ According to Geraldo Bezerra de Menezes, the president of the Superior Labor Court for several years, the Weimar Constitution, “which devoted a section to economic life and contains several provisions concerning labor law,” strongly influenced the Brazilian constitutional assembly of 1934.⁹¹ As we have seen, the Weimar Labor Court⁹² had a tripartite structure, unlike its French counterpart, and its operations were much less formalistic than the Common Courts, with high rates of individual litigation, conciliation and success. The procedural aspect also bore several similarities to our Labor Courts: the parties presented their arguments, class representatives or lay judges had seats in the hearings, an agreement between the litigants was initially attempted, but the judge had the initiative and the power to structure the proceedings and, finally, to exercise greater weight in the trial, because, as in Brazil, class representatives had less power to intervene.⁹³ Organizationally speaking, the lower courts were independent from the common courts, acting as special courts, although the judges – once again, like their Brazilian counterparts – were career professionals. Another similarity with the Brazilian version that is even more clear is the makeup and election of the members of the local courts and the higher courts. They were both represented by a career judge and lay judges, each of whom was chosen from a list of candidates compiled by the labor unions and employers’ associations. The Weimar Republic also adopted the tripartite model in local tribunals, regional courts (which acted as courts of appeal, along the same lines as the regional courts in Brazil) and the Federal Labor Court.⁹⁴ This may be why, in Germany, some historians have criticized the labor courts, alleging that they exercised the power of co-optation among workers’

 Regina M. Morel; Ângela de Castro Gomes; Elina G. de Fonte Pessanha. Sem medo da utopia. Evaristo de Moraes Filho: arquiteto da sociologia e do direito do trabalho no Brasil (São Paulo: LTr, 2007), 50 and 72; Gottschalk, Norma pública, 20 – 22.  Menezes, Dissídios coletivos, 31. See also Gilberto Bercovici, “Tentativa de instituição da democracia de massas no Brasil: responsabilidade constitucional e direitos sociais na Era Vargas (1930 – 1964).” In Ricardo Marcelo Fonseca e Airton Cerqueira Leite Saelaender (eds.), História do direito em perspectiva: do Antigo Regime à modernidade (Curitiba: Juruá Editora, 2010), 381. For a comparison of the two constitutions’ approaches to “social questions,” see Marco Aurelio P. Guedes, Estado e ordem econômica e social: a experiência constitucional da república de Weimar e a Constituição brasileira de 1934 (Rio de Janeiro: Renovar, 1998).  The information on Germany is particularly based on Wunderlich, German Labor, 59 – 133.  Blankenburg and Rogowski, “German Labour Courts,” 83.  The role of judges was more passive in the UK, giving greater freedom of action to solicitors and lay representatives. Ibid.

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

91

representatives, who were seen as agents of the State.⁹⁵ This can be compared to Brazilian sociologists’ criticism of the Labor Courts, but there is a crucial difference: the Weimar Constitution gave workers the right to representation within the company, with the powers of “decision, control and administration.” Brazil’s labor laws barred Brazilian workers from doing so.⁹⁶ If we look at the footnotes in the books by several jurists quoted throughout this chapter, most of which specialize in comparative international law, we will find countless references to labor laws and courts in other countries, with abundant and learned references to works published in several foreign languages. However, this is not the place to provide numerous international comparisons; for one thing, along with similarities, we can find many profound differences. The idea is to point out that the supposed uniqueness of the Brazilian Labor Courts still requires further study. I have also tried to argue that the assumption that the Labor Court was a carbon copy of the Magistratura del Lavoro is a fallacy, mainly because the comparison should not be limited to the formal aspects of the institutions of the two countries, but must also consider the historical contexts in which they emerged. Brazil also lacks an extensive study of the Labor Courts along the lines of that by Gian Carlo Jocteau. He engaged in an in-depth analysis of the workings of the Magistratura del Lavoro during the fascist era: its doctrinal formulations, the activities of legal professionals, collective and individual bargaining processes, the position of workers, employers and unions in lawsuits, different views on the efficacy and legitimacy of the courts, as well as particularly the complex links between the judiciary and the Fascist government. This wide range of perspectives enabled the author to sum up succinctly what I have tried to say thus far about the Magistratura del Lavoro: The abolition of the “private” representatives of the parties in the judicial colleges; the presence of the employers’ representatives within them; the accentuation of elements of control by the executive and the judiciary; consolidated jurisdiction: these are the salient features of the fascist reform in the field of labor conflicts, which attributes to the new ‘special’ sections established in conjunction with the ordinary courts an institutionally indispensable role in disciplining social conflict.⁹⁷

 Aaron, “The NLRB,” 44.  Lionel Richard, A República de Weimar (São Paulo: Companhia das Letras, 1988), 54; Dahrendorf, As classes e seus conflitos, 232.  Jocteau, La magistratura e i conflitti, 109.

92

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

This restrictive experience for Italian workers must be at the root of the abolition of subjecting collective conflicts to compulsory arbitration in 1948, an institute considered contradictory to the principles of collective bargaining, but also useless during the Fascist regime.⁹⁸ The longevity of the Brazilian Labor Courts, which for many decades have undergone few formal changes since their incorporation into the Judiciary in 1946, may be a sign that the experiences of the labor courts in both countries have been very different. Brazil’s Labor Courts undoubtedly sprang up from the authoritarian soil of the Vargas government’s corporatist project. However, their institutional organization seems to have been more flexible and adaptable to different political regimes, becoming, in practice, an arena for both conflicts and the representation of interests, as well as a space in which laws are subject to different interpretations and appropriations by the representatives of employers and workers.

X One of the most serious problems that Brazil’s vast academic and legal tradition has faced is taking literally the high-sounding declarations of the formulators of corporatism. If the Fascist regime in Italy did not take the corporatist State to its ultimate consequences in practice, we have even more reason to suspect the relentless force of Brazilian corporatism.⁹⁹ The corporatism of the Estado Novo was much less integrative and communitarian, at least along Oliveira Vianna’s lines, and much more repressive and exclusive, placing too many restrictions on the unions. Control of trade unions prevailed, along with the concept that strikes were illegitimate and “anti-social” and the ideology of the State’s anticipation of workers’ demands.¹⁰⁰ When writing in 1944 “against certain concepts of Italian corporate law” and against the corporatism = fascism equation, jurist Egon Gottschalk shrewdly observed that “corporate organization, however, is not yet definitive in Brazil.” He went on to state that the comparison of Italian and Brazilian corporatism “cannot force us to accept more than mere inspiration.”¹⁰¹ This assertion is certainly

 Gino Giugni, “The Settlement of Labor Disputes in Italy.” In Aaron, Labor Courts, 257.  Hall, “Labor and the Law,” 89.  Adalberto Moreira Cardoso, “Direito do trabalho e relações de classe no Brasil contemporâneo,” In A democracia e os três poderes no Brasil, edited by Luiz Werneck Vianna (Belo Horizonte: Rio de Janeiro, 2002), 498 – 503.  Gottschalk, Norma pública e privada, 12, 16 and 38.

3 The Labor Courts and the Magistratura del Lavoro: Comparative Notes

93

less true for corporatist trade union organization as a whole and more for the Labor Courts in Brazil in particular. Without a doubt, the place for which the Labor Courts was conceived in the Brazilian corporatist structure was similar to the role of the Magistratura del Lavoro in the Italian corporatist arrangement. However, the assembly of its parts and its workings in Brazil were different in several aspects. This is due, first, to a wider international repertoire of similar experiences, familiar to Brazilian lawmakers and jurists. Secondly, many of the characteristics of the Labor Courts adopted in Brazil were already an integral part of similar institutions established in the country since the 1920s, which gave rise to practices, doctrines and jurisprudence that influenced the establishment of the judicial system for labor during the Estado Novo.¹⁰² Third, corporatism survived the Vargas dictatorship, after which the workers adapted and appropriated its components, such as the Labor Courts, for purposes that were not always identical to those for which they were created. A better inventory remains to be conducted of the situations and expectations that motivated workers, businessmen and trade unions in Brazil, Italy and other countries to mobilize the labor courts, confronting and challenging the apparent rigidity and autonomy of the law and the legal sphere. The following chapters will take some steps in that direction.

 Souza, “Coagidos ou subordinados”; Marcelo Antonio Chaves, A trajetória do Departamento Estadual do Trabalho e mediação das relações de trabalho (1911 – 1937) (São Paulo: LTr, 2012); Magda Biavaschi, O direito do trabalho no Brasil, 1930 – 1942 (São Paulo: LTr, 2007).

PART II: Normative Powers and Urban and Rural Workers

97

When examining approximately 500 collective cases from the Regional Labor Court of the Second Region (TRT, SP),¹ I analyzed how that tribunal dealt with workers’ demands between January 1963 and March 1964, when a deluge of political conflicts overwhelmed Brazil. First, however, I will quickly contextualize relations between the left-wing labor and trade union movement and the João Goulart administration so as better to situate the experiences of workers and their unions in their struggles within and with the Labor Courts.² Since the mid-1950s, “development with nationalism” had been the main watchwords of the Left and the trade union movement, which advocated strengthening the national bourgeoisie and the State in the productive sector, controlling foreign capital and social justice. The Communist Party (PCB), which was to become the undisputed leader of the workers, consolidated in its “Declaration on Policy” of March 1958 a change in the political-ideological course it had been following in practice since the mid-1950s. The document reiterated its vision of the Brazilian revolution in two stages (national-democratic or “reformist,” and socialist); pointed out the way forward for the struggle for socalled structural reforms (“basic reforms”) as a way of intensifying capitalist development and precipitating the first phase of the revolution; described the administration of Juscelino Kubitschek, elected with the support of the PCB, as a conglomeration where the president wavered between the “nationalist” group, to which the Communists should lend their support, and the “capitulating” group; finally, it indicated the peaceful course of the revolution. Thus, the party abandoned the watchword of insurrection and took the path of reform. From then on, the Communists began to work in a kind of “de-facto legality”: they became part of the political and institutional scene, increasingly associating themselves with the “programmatic” workers.³

 The TRT of the Second Region covered the states of São Paulo, Paraná and Mato Grosso, but most cases (94 percent) originated from cities in São Paulo state.  The following is a synthesis of Fernando Teixeira da Silva and Marco Aurélio Santana, “O equilibrista e a política: o ‘Partido da Classe Operária” (PCB) na democratização (1945 – 1964)”. In As esquerdas no Brasil. Na-cionalismo e reformismo radical, 1945 – 1964, edited by Jorge Ferreira and Daniel Aarão Reis (Rio de Janeiro: Civilização Brasileira, 2007).  There is copious literature regarding these issues associated with the 1950s, such as Antonio Luigi Negro, Linhas de montagem: o industrialismo nacio-nal-desenvolvimentista e a sindicalização dos trabalhadores (São Paulo, Boitempo, 200); Hélio da Costa, Em busca da memória: Comissão de fábrica, partido e sindicato no pós-guerra (São Paulo, Scritta, 1995); Marco Aurélio Santana, Homens partidos: comunistas e sindicatos no Brasil (São Paulo, Boitempo, 2001); José Antonio Segatto, Reforma e revolução: as vicissitudes políticas do PCB, 1954 – 1964 (Rio de Janeiro: Civilização Brasileira, 1995); Paulo Fontes. Trabalhadores e cidadãos – Nitro Química: a fábrica e as lutas operárias nos anos 50 (São Paulo: AnnaBlume – Sindicato dos Trabalhadores

98

PART II: Normative Powers and Urban and Rural Workers

Jânio Quadros’s overwhelming victory at the polls in 1961, having beaten the PCB-backed candidate, General Henrique Lott, was seen as a temporary setback, with it now considered that the priority should be the struggle for a nationalist and democratic government. To support the labor movement, it was necessary to advocate, among other points, wage increases, the freedom and autonomy of the trade unions, measures to contain the cost of living and the expansion of labor legislation, items that will be analyzed in detail in the following chapters. After Quadros’s resignation in 1961, Communists, workers and an important part of the labor movement were closely involved in the cause of constitutional legality, as Goulart was threatened by the coup d’état of not being passed the presidential sash. It was a time of intense rallies, marches and strikes, such as the industrial action that paralyzed the nation’s ports, with a total of 300,000 workers downing tools for five days in September of that year. Its participants celebrated the victory of the rule of law, albeit under the constitutional reform that established parliamentary government.⁴ The fight to uphold the rule of law led to the mobilization of workers in several parts of the country and the strengthening of Communists and the so-called “PTB left” in the trade unions, to the detriment of other rival forces. It was widely thought that Goulart, however, should undertake to be the main guarantor of an independent foreign policy and a domestic policy that could give a nationalist and reformist direction to the solutions to the nation’s problems. Thus, the Left and the “nationalist-reformist” trade union movement launched their campaigns for basic reforms, supporting the government when its measures seemed to be in tune with the “people’s interests.”⁵ Despite countless opposing forces, Goulart would attempt to reach a conciliation with the conservative groups. However, in June 1962, the Communists led a campaign backing a “nationalist and democratic ministry” amid which the trade union movement showed its independence by rejecting Goulart’s insistent appeals to cancel the general strike scheduled for 5th July, 1962 to put pressure on Congress. Indeed, the workers staged several walkouts, particularly the gen-

Químicos e Plásticos de São Paulo, 1997). Regarding workers’ movements, see Lucília de Almeida Neves Delgado. PTB: do getulismo ao reformismo (1945 – 1964) (Rio de Janeiro: Marco Zero, 1989); Idem, Trabalhismo, nacionalismo e desenvolvimentismo: um projeto para o Brasil. In O populismo e sua história, edited by Jorge Ferreira (Rio de Janeiro: Civilização Brasileira, 2001).  Jorge Ferreira (ed.), O imaginário trabalhista. Getulismo, PTB e cultura popular (1945 – 1964) (Rio de Janeiro: Civilização Brasileira, 2005).  Fernando Teixeira da Silva and Antonio Luigi Negro, “Trabalhadores, sindicatos e política”. In História do Brasil Republicano, edited Jorge Ferreira and Lucília de Almeida Neves Delgado (Rio de Janeiro: Civilização Brasileira, 2003), vol. 3.

PART II: Normative Powers and Urban and Rural Workers

99

eral strike in the city of Santos. The political outcome of that movement was the creation of a cabinet that favored basic reforms.⁶ Among the trade unions, the Comando Geral da Greve (Strike General Command) would be transformed in August into Comando Geral dos Trabalhadores (Workers’ General Command; CGT). Largely responsible for the dynamism of the labor movement until March 1964, it violated the Consolidation of Labor Laws (CLT), which banned centralized trade unions. The CGT established strong ties with the PCB, the PTB and the Frente Parlamentar Nacionalista (Nationalist Parliamentary Front; FPN), which not only acted within the framework of Congress but worked alongside business leaders, workers, students and intellectuals involved in reformist platforms.⁷ Within the union structure, Communist and labor activists led four of the six confederations then in existence.⁸ Confident of their achievements and their power, the Left embarked on a struggle for a “plebiscite with reforms” in September of 1962, which would result in the return of the presidential system. The CGT called a general strike and, in many states, several professional categories downed tools. For the PCB, presidentialism would offer effective tools for counterbalancing the conservative forces in parliament and intensify the struggle for reforms, forcing the Brazilian president to move in that direction. The return to the presidential system of government at the beginning of 1963 seemed to indicate the power the social movements had acquired, fuelling hopes that a politically strengthened João Goulart could finally implement basic reforms. However, independent support for the president of Brazil, expressed by trade union leadership during 1963, brought about acute tensions between the government and the labor movement. After all, the president was still wavering on his institutional and political course, often leaning towards a conciliation with the conservative forces that, especially at the end of 1963, called for a “break with institutions,” a euphemism for a coup.⁹

 Fernando Teixeira da Silva, A carga e a culpa. Os operários das docas de Santos: direitos e cultura de solidariedade, 1937 – 1968 (São Paulo: Hucitec; Santos: Prefeitura Municipal de Santos, 1995).  Lucília de Almeida Neves Delgado, O Comando Geral dos Trabalhadores no Brasil: 1961 – 1964 (Petrópolis: Vozes, 1986).  Confederação Nacional dos Trabalhadores na Indústria (CNTI), Confederação Nacional dos Trabalhadores em Estabelecimentos de Crédito (CONTEC), Confederação Nacional dos Trabalhadores Marítimos, Fluviais e Aeronáuticos (CNTMFA) and Confederação Nacional dos Trabalhadores na Agricultura (CONTAG).  Silva and Santana, “O equilibrista e a política.”

100

PART II: Normative Powers and Urban and Rural Workers

In early 1964, there was in fact a rapprochement between Goulart and several leftist groups. Seeing himself politically weakened, with little support, even from within his own party, the PTB, the president embarked on yet another political maneuver, calling for popular support. The last great act of Goulart and the nationalist forces was the famous and controversial 13th March rally at the Central do Brazil railway station in Rio de Janeiro, when the president announced measures that would become part of a wide-ranging reform bill sent to Congress two days later. The reaction was swift; the CGT threatened a general strike if there was an attempted coup, while more conservative groups demanded the president’s impeachment, taking part in mass demonstrations such as the March of the Family with God for Freedom.¹⁰ The events that followed until March 1964 are well known. With the support of union leaders, sailors and marines occupied the headquarters of the Metalworkers’ Union of Rio de Janeiro to celebrate the second year of the founding of their association. The sailors were even backed by a detachment of marines who, at the express order of the Minister of the Navy, went there to break up the demonstration. As a result, the minister resigned and the ceremony became a rebellion. At the height of the crisis, Goulart intervened, and the appointee to head the Ministry of the Navy was chosen from the CGT’s triple list, enraging their adversaries. The new minister revoked the punishments and the rebels left the union building after being placed under arrest by the Army Police, but they would soon be granted an official pardon.¹¹ It was all that was enough for the opposition to refer to the “Cubanization” of the country, a trade union republic and Communist atheism. “Enough!” the newspaper headlines blared. On 1st April, João Goulart was overthrown by a civilian-military coup. In the wake of the regime change, the new government intervened in trade unions, removed leaders, arrested activists (some of whom would end up being tortured and killed) and began putting strict controls on the trade union movement. The 1964 coup was the culmination of an orchestrated campaign against the leftists and workers’ organizations and movements in the city and the countryside. In short, in the early 1960s, workers demonstrated unprecedented mobilization, challenging analyses that still insist that the 1964 coup was inescapable proof that social movements during the Goulart administration were nothing more than a house of cards. It has also been fully established by vast recent aca See Lucília de Almeida Neves Delgado, “Trabalhadores na crise do populismo: utopia e reformismo.” In 1964: visões críticas do golpe: democracia e reformas no populismo, edited by Caio Navarro de Toledo (Campinas: Editora da Unicamp, 1997).  Ferreira, O imaginário trabalhista.

PART II: Normative Powers and Urban and Rural Workers

101

demic works that the so-called “politicization” of the trade union movement did not signify that workers were unconditionally attached to the government. The Left and urban and rural workers’ movements not only engaged in “political strikes” but also, and above all, in demands and struggles for better living and working conditions, as well as the participation of workers in the decision-making processes of the movements with the greatest visibility.¹² The “long year of 1963” was especially prodigious in this regard, as escalating inflation corroded workers’ buying power while energizing their protests, particularly against the economic policy then in effect (see chapter 4). It also saw the height of the workers’ challenge to the limits imposed by laws that curtailed the right to strike through the normative powers of the Labor Courts, which were always seen as an antidote to the endless strikes, and through the union structure which was responsible for the significant fragmentation of the workers’ organization and achievements (see Chapters 5 and 6). The period was equally fertile for the movement of rural workers to expand rights guaranteed by law and disputed in the Labor Courts. This was a time when the colonato system was in crisis, partly because public intervention in the private powers of large landowners was strongly felt due to the pressure of the trade union movement, which increasingly sought to bring down the wall that divided urban and rural workers (see chapter 7). All this has only become better known through the investigation of hundreds of labor lawsuits, which makes it hard to understand why the history of Labor Courts has been subjected to a long silence in such a decisive context of relations between workers, employers and the State. Furthermore, a close examination of collective disputes opens up new prospects for interpreting the relationship between the labor movement and the 1964 coup. The following chapters are a step towards closing this strange gap, which I have sought to explain in the first part of this book.

 I have analyzed this issue in detail in Fernando T. Silva, “Direitos, política e trabalho no porto de Santos”. In Na luta por direitos. Estudos recentes em história social do trabalho, edited by Alexandre Fortes et al. (Campinas: Editora da Unicamp, 1999).

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”¹ We must be prepared to confront the bosses, the Courts and the Labor Office. Tarcísio Rodrigues² The wisdom of civilized peoples says: “between individual will and the law, the law must prevail.” José Pereira dos Santos³

This chapter develops the arguments presented in the two previous chapters by empirically addressing the “bicephalous” nature of the Labor Courts, inasmuch as normative powers were not necessarily or entirely incompatible with “free and direct” negotiations between employers and workers. The following are some quantitative exercises and qualitative arguments in order to discuss some points of view elicited by the endless controversy over whether negotiation or legislation reigns supreme in the execution of labor contracts.

I In 1963, Labor Courts faced the greatest responsibility they had ever shouldered by addressing the increasingly thorny and dangerous question of wage increases, because inflation had reached record levels. Between the post-war period and the mid-1950s, the annual inflation rate was between 15 and 30 percent. At the beginning of the following decade, it rose to around 60 percent, reaching roughly the astronomical rate of 80 percent between the end of 1963 and the 1964 coup. It should also be noted that wage indexation was not practiced, making it difficult for workers to build up savings because their wages could not keep

 This chapter is an adapted version of Fernando Teixeira da Silva, “Entre o acordo e o acórdão: a Justiça do Trabalho paulista na antevéspera do golpe de 1964.” In A Justiça do Trabalho e sua história: os direitos dos trabalhadores no Brasil, edited by Ângela de Castro Gomes and Fernando Teixeira da Silva (Campinas: Editora da Unicamp, 2013).  Construction worker from São Paulo, at a union meeting held on 19th April 1963 (TRT2, Processo 130, 1963).  President of the River Workers’ Union of Presidente Epitácio (Prata Basin) (TRT2, Processo 63, 1963). https://doi.org/10.1515/9783110638844-010

104

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

pace with the soaring cost of living.⁴ According to public opinion, inflation was, in fact, a very sensitive problem. A poll conducted in Rio de Janeiro between January and March 1964 showed that 55 percent of respondents considered it to be the main problem facing the country.⁵ According to the principle of “equity” – preventing “the interests of any class or individual from prevailing over the public interest,” as determined by article 8 of the Consolidation of Labor Laws – it was up to the Labor Courts to resolve a highly embarrassing dilemma: whether to cooperate with government plans to contain inflation by controlling wage increases, or to guarantee workers’ purchasing power, yielding to their pressure to keep wages in line with rising prices. In juridical, political and economic terms, this dilemma opens other impasses: were the courts responsible for maintaining certain standards of economic development and capital accumulation, “for the good of the nation,” or should they distribute income for the benefit of the “economically weaker” party? Article 766 of the CLT made the judges’ lives even harder: “in agreements on the stipulation of wages, conditions will be established which, by ensuring a fair wage for workers, will also allow a fair return to the companies concerned.” How to solve such a difficult conundrum? Judicial decisions had obvious economic and political-institutional ramifications. Employers and workers invoked that article of the CLT in their lawsuits and appeals, obviously emphasizing on one part of the sentence over the other (fair pay or fair profits). The businessmen put strong and orchestrated pressure on the judges, all the while chanting the mantra of social peace and national development, accompanied by the chorus of anti-communism. On the other hand, the trade union movement demanded that the Labor Courts take a firm stand in defense of those who, after all, were truly responsible for the national wealth, so that the workers’ share was not devoured by inflation. Thus, the judges faced new challenges, demands and pressures from all sides, which required taking a fresh look at old positions and different forms of argumentation to confer legitimacy on their actions. As shall be seen throughout this chapter, the essential question for the Labor Courts could have been maintaining their most important instrument of power, that is, normative power itself.

 Paul Singer, “O significado do conflito distributivo no golpe de 64.” In 1964: visões crítica do golpe, edited by Caio Navarro de Toledo (Campinas: Editora da Unicamp, 1997).  Gláucio Ary Dillon Soares. “O golpe de 1964.” In 21 anos de regime militar, edited by Cláudio Ary D. Soares and Maria Celina d’ Araujo (Rio de Janeiro: Editora da FGV, 1994), 17.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

105

II As I pointed out in the second chapter, a duality had been established between the corporatist and contractualist systems of labor relations, which were distinguished, respectively, by compulsory arbitration of conflicts and direct negotiations between employers and workers. As a corollary, this disjunction operates with rigid concepts of class autonomy and heteronomy. In Brazil, the courts would have overwhelming weight in conflict resolution, seeking to minimize social tensions and block any agreements reached without government intervention. However, if we followed this dichotomy to its logical conclusion, we would find the Labor Courts arbitrating the disputes between capital and labor from one extreme to the other, particularly in a highly polarized political and social climate. However, the courts only partially followed the interventionist route and did not completely block access to direct negotiations. Throughout this chapter, my analysis of the place of the TRT’s normative power will always be accompanied by the contrast between labor cases in which the courts intervened and those which resulted from agreements reached directly between the parties. This approach, which is new to the academic literature on this subject, may be the only empirical way of coming close to a comparison of the process of direct collective bargaining, on one hand, and the interference of normative judgments, on the other, among the possibilities and limitations of the legislated system of labor relations in Brazil.⁶ I presume that this comparison of two possible routes – agreements between the parties and court rulings – is the best way to understand the performance of the Labor Courts in that situation of clear collusion between the forces behind the coup and the business leaders in center stage. For them, the Labor Courts were also responsible for the collapse described by the powerful Federation of Industries of the state of São Paulo (FIESP): But what to say of a society, of a regime, of a political system that reverses the situation, that is, which allows those who have the greatest right to enjoy of these benefits [high wages] to see themselves vanquished by wage categories whose occupants are required to have only the rudiments of education, basic knowledge!⁷

 Regarding the description of the legislated system in Brazil, see Eduardo Noronha, Entre a lei e a arbitrariedade: mercado e relações de trabalho no Brasil (São Paulo: LTr, 1999).  FIESP, Boletim informativo 704, 1963, 4. I would like to thank Elisa Pomari for providing me with this source.

106

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

These words were addressed to workers in the Port of Santos (São Paulo state), but at the same time, to the government’s call for business leaders to do their bit for the country’s economic stability. Their cooperation would depend on a wage policy “free of demagogic pressures, especially in the port and maritime sectors,”⁸ which were among the main targets of FIESP’s attack, mainly because of their strong mobilizing power and propensity for organizing strikes.⁹ The business counterpart to the government’s plans would depend on controlling the “democratic-nationalist” trade union movement, that is, guided by communists and labor activists. FIESP blamed high inflation on wage increases, which were thereby jeopardizing the country’s economic dynamism.¹⁰ It said that it was up to the Labor Courts, which were susceptible to the pressure of strikes and unions, to regain control of the runaway economy. However, until “measures that are, so to speak, revolutionary”¹¹ (that is, a coup) could take effect – a solution recommended by a business newspaper in an article entitled “Santos, porto mal comportado” (“Santos, Badly Behaved Port”) – employers made a concerted effort to undermine the workers’ bargaining power in the Labor Courts. However, instead of establishing class collaboration, the purpose for which it was created, that institution generated innumerable conflicts. Nevertheless, the clashes between employers and employees were not limited to the judicial arena and its internal dynamics, bureaucratic formalities and conflicting jurisdictions. On the contrary, the Labor Courts were constantly questioned by the clashing social groups, particularly by strike movements, which were hammering on their doors. Unlike what is often supposed, going to court involved more than shifting the struggles begun in the workplace to the abstract world of laws and legal norms. In other words, the original meanings of the conflicts would not be exhausted in judicial skirmishes that were supposedly understandable only to the cognoscenti. Furthermore, going to court did not obviate alternative forms of action. Having said that, let us follow the dilemmas of workers faced with the three options available in the process of dealing with their demands: direct negotiation with their employers, the normative intervention of the courts or going on strike. I should emphasize that these three alternatives were part of the same juridical order that largely sought to regulate the forms of free negotiation, judicial

 FIESP, Boletim informativo 106, 13th March 1963, 16.  See Fernando Teixeira da Silva, A carga e a culpa. Os operários das docas de Santos: direitos e cultura de solidariedade, 1937 – 1968 (São Paulo: Hucitec; Santos: Prefeitura Municipal de Santos, 1995), chapter 6.  FIESP, Boletim informativo 731, 9th October 1963, 6.  Transporte Moderno, 1, (6), January 1964.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

107

interference and strikes. As Tamara Lothian has aptly observed, collective bargaining in Brazil was not a reality denied by corporatism but a possibility, albeit part of an institutional framework that suffered strong State intervention.¹² However, a wide range of juridical uncertainties appeared in the gaps between the laws and rights – terms that are often wrongly thought to be synonymous. There is, therefore, a great deal of uncertainty at the beginning of a court case, with its outcome usually unpredictable. If many of the rules of the game within the courts are laid down in stone, the same cannot be said of the various ways of playing by them.

III Negotiations begun in June 1963 aptly express the complexity of that game and the alternatives to which it gave rise. Nine thousand drivers were about to go on strike, according to the Companhia Municipal de Transportes Coletivos (CMTC), the public transport company of the city of São Paulo, in a statement sent to the Regional Labor Court. To avoid “inconveniencing the residents of São Paulo,” the president of the court, Décio de Toledo Leite, did not hesitate: he immediately initiated ex-officio collective bargaining, as provided by law in the event of a strike or the imminent threat of one.¹³ As it is inherent to the law to seek to transform the relations of force into legal relations in which the litigants have the prerogative to challenge judicial decisions, the drivers’ union claimed that the court did not have the power to reach an agreement. The TRT had allegedly interrupted “the course of the friendly settlements that were taking place” between the workers and the company. The strike, said the union, was “merely a remote possibility.” The parties could have resolved the dispute without undesirable court intervention and the TRT would only have to ratify an agreement reached through the concerted action of the parties involved. Free negotiations were being overrun by a court that was anxious to restore social peace, which was its reason for being. To make things worse, the court ordered a 63 percent wage increase when, according to the union’s attorney, drivers in the city of Santos had managed to obtain a 70 percent increase for the same period “through a simple collective agreement”. Therefore, the TRT had not only violated the principle of isonomy but was accused of ordering a lower wage increase than that which could have been

 Tamara Lothian, “The Political Consequences of Labor Law Regimes: The Contractualist and Corporatist Models Compared.” Cardozo Law Review 4 (7) (1986), 1003.  TRT2, Processo 176, 1963.

108

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

reached through free collective bargaining. On another occasion, a member of the São Paulo shop workers’ union, the Sindicato dos Empregados do Comércio de São Paulo, supported the same argument: to those who suppose that the best course is collective bargaining, remembered the past disaster, when they resorted to bargaining and obtained less than was originally proposed by the employers, in addition to putting off the date when the increase went into effect.¹⁴

This demonstrates that the unions had two options: homologation (homologação) and collective disputes (dissídio coletivo), just as the Labor Courts themselves denominate and distinguish between two specific types of legal proceedings that follow different juridical paths. For readers who are not familiar with these terms, which will accompany us until the last page of this chapter, it is essential to remember them to have a better understanding of the arguments that will be developed here. Homologations are proceedings involving labor unions on one side and associations representing the company or companies and employer(s) on the other. If they choose this option, both parties will freely reach an agreement between themselves (in general, through entities representing the union or the companies) or engage in conciliation through the “round table” of the Regional Labor Office (DRT), an eminently administrative agency of the Labor Ministry. Whichever sphere is used, the agreements are called “out-of-court settlements,” although the courts must ratify them, giving legal approval to the agreement reached by the parties. In several cases, the attorney representing the Labor Ministry considered such agreements to “constitute typical collective conventions.” That is, they pertained to the contractualist sphere of labor relations, engendered within corporatism itself.¹⁵ “Collective disputes” (“dissídios coletivos”) are proceedings in which any party can turn to the Labor Courts, generally when attempts to reach an agreement have failed, both within the private sphere and the DRT.¹⁶ When a strike is imminent, the DRT seeks to reach conciliation among the parties involved. Failing that, it submits the dispute to the Labor Courts in accordance with the “strike law” of 1946.¹⁷ Once a strike has begun without filing a collective dispute, such a

 TRT2, Processo 430, 1963.  See, for example, TRT2, Processos 245 and 248, 1963.  One function of the DRT is to refer disputes to the court when it considers itself “incompetent” to evaluate different claims resulting from the application of or failure to observe collective contracts. TRT2, Processo 282, 1963.  Decree-Law no. 9.070, 15th March 1946.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

109

dispute may be initiated ex-officio by the President of the Court or the Public Prosecutor’s Office. Most of the disputes occurred in situations that did not involve strikes, imminent or otherwise, because the union assembly could resolve to go to court.¹⁸ Therefore, in the case of collective disputes, judges directly intervened in the conflict, ordering wage increases and/or changes in working conditions in normative decisions (judgments). Both options – collective disputes and homologation – were always present in the workers’ calculations, as they are in the arithmetical exercises in this chapter. The following are a few numbers and a broad range of analytical possibilities opened up by the use of a database developed and powered by the ludic but at the same time frustratingly slow and painstaking method of reading of hundreds of labor lawsuits. Of the 485 cases filed between January 1963 and March 1964, only a little more than half (55 percent) consists of collective disputes (Figure 1). This finding is surprising, because it would be expected that, in a corporatist system of labor relations, the courts would exert overwhelming weight, either minimizing “friendly arrangements” expressed in homologations or making them unfeasible.

Figure : Types of proceedings (January  – March )¹⁹ Source: Tribunal Regional do Trabalho ª Região/SP

 Attorney Roberto R. Puech estimated that, in 1957, 80 percent of appeals occurred in this way. Direito individual e coletivo do trabalho (São Paulo: Revista dos Tribunais, 1960), 371.  All figures in this chapter deal with the universe of 485 proceedings.

110

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

Let us then begin with the “out-of court” agreements, which accounted for almost half of all cases. Figure 2 shows that employers and workers decided almost everything on their own, without any official intervention. This does not mean that, during the homologation process, the Court could not interfere in agreements when, for example, it regarded a clause as being unlawful or harmful to the workers. However, the TRT rarely interfered in homologation agreements: it approved 83 percent of them in full and only rejected 1.8 percent. In both possible forms of agreement (private and direct or established at the round tables of the DRTs), we can conclude that the Labor Courts did not interfere in these negotiations and made virtually no decisions on the items agreed by the parties. However, it should be noted that the negotiations conducted in the DRTs were not exactly “free,” as they were also part of the corporatist scheme, while representatives of the Labor Office played an important role in the conciliation process. As we have seen, before a dispute was taken to court, the Labor Office had to attempt to reach an agreement between the parties, thus avoiding the path of judicial settlement.

Figure 2: “Extrajudicial” agreements (homologations). (January 1963 – March 1964) Source: Tribunal Regional do Trabalho 2ª Região/SP

When examining the disputes themselves, it could be expected that the TRT would have fully intervened in the cases it received. However, 30 percent resulted in agreements reached between the parties during the judicial process. The court therefore merely ratified them, although judges also played an active role in the conciliation process, both at the Conciliation and Judgment Boards (first instance), as well as at court hearings.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

111

In the end, after viewing collective disputes and homologations jointly, we have reached the following conclusion: the judges explicitly determined the clauses of the judgments, which became the equivalent of “contracts of employment” in 46 percent of the cases they received.²⁰ This figure is not insignificant, but is less than half of the total number of cases. This consideration is necessary because we are dealing with a legal system in which the assumption is that the Judiciary intervened in all aspects of labor relations. Furthermore, we are considering a historic juncture in which many wanted the courts to have full powers to confront the Trade Union Republic that was believed to have taken over the country. But during the “long year of 1963,” the Labor Courts were increasingly sensitive to the workers’ demands.

IV So far, we have seen that although the rules of the game call for the heavy hand of the State to be involved in collective bargaining, out-of-court settlements were the end of the line for a considerable number of professional categories. It seems that analyses of the subject overlook an important principle that a former TST president sets forth as follows: “going to the Labor Courts must be the last recourse, the final appeal, for the settlement of disputes.”²¹ However, we are still halfway to the answers to the problem posed by the Janus-like nature of collective hiring in Brazil. Thus, we should raise two fundamental questions: what were the demands of the workers and their unions in homologations and disputes? In what sort of proceedings – judicial or “out of court” – do we find more favorable results for the unions’ demands? In other words, to what extent did they want the courts to intervene and, even if they did not, was such intervention more beneficial than “out-of-court” agreements? First, let us see what the workers tended to demand and in what proportion. In the above-mentioned data base, we distributed their demands into six main groups of demands and rights: – wage increase: percentage of periodic (mainly annual) increases of wages; – remuneration: setting standards that directly regulate or affect wages, such as extra pay for working nights, dangerous and unhealthy working condi In this case, “contract of employment” does not mean the agreement reached between employers and employees in a “free hiring” system such as is the case in the US, but the legal terms that determine the amount of wages, working hours and ways to execute them.  Geraldo Bezerra de Menezes, Dissídios coletivos do trabalho e direito de greve (Rio de Janeiro: Borsoi, 1957), 37.

112

–

–

–

–

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

tions, vacation pay and weekly rest, remuneration according to wage brackets, early wage increases, wage ceilings/floors, proportional increases in time of hiring and compensation for previous increases; benefits: any form of incentive or bonus that is not included in the salary, such as food aid and transportation, profit sharing, additional pay for length of service, gratuities and bonus leave; working conditions: workplace rights which affect material working conditions and professional practice, such as uniforms, vacation time and working hours; career/employment relationship: employment relationship, demands regarding the employment contract and workers’ careers, such as job stability, notes on working papers, fixed-term employment and rehiring in the event of a strike; collective representation: types of action, organization and resources pertaining to the unions, such as recognition of factory union delegates and partial transfer of wages to the unions.

In total, there were 1,041 lawsuits, naturally considering that most proceedings contained several demands. The overwhelming presence of demands regarding wage increases and forms of remuneration (Figure 3) is easy to explain. First, the abundant and meticulous legislation embodied in the CLT is “the Brazilian equivalent of private collective contracts.”²² It is as if, by publicly defining rights, the CLT had “anticipated” the demands and clauses in agreements. Second, inflation eroded workers’ buying power, almost invariably leading them to put clauses regarding wage increases on the agenda. Third, normative power was limited, among other factors because the courts generally considered the interference of the judiciary in businesses’ “private matters” to be an extrapolation of their powers. We can suppose that direct negotiations included more clauses besides those on wages and remuneration, in addition to those which were not set down in positive laws and went beyond the boundaries the judges dared not cross. Free of the legal and political bonds that restricted normative powers, it could be conjectured that the unions managed to extend the arc of labor rights through direct agreements with employers. In fact, Figure 4 shows the exact opposite. The workers demanded much higher wage increases and remuneration in

 Michael M. Hall, “Labor and the Law in Brazil.” In The Rise and Development of Collective Labour Law, edited by Marcel van der Linden and Richard Price (Bern; Brussels; Frankfurt; New York; Vienna: Lang, 2009), 24.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

113

Figure 3: Demands (January 1963 – March 1964) Source: Tribunal Regional do Trabalho 2ª Região/SP

out-of-court agreements than in disputes. In other words, in direct negotiations, they were more cautious, making a smaller range of demands for benefits, working conditions, professional careers and union representation. In short, this unequal distribution shows that, in negotiations conducted without the direct intervention of the Courts, the range of demands is always smaller than in the disputes. It is easy to speculate why out-of-court settlements tended to involve less audacious and controversial demands. We cannot rule out the possibility that some of the workers’ representatives were inclined to collaborate with the companies. It should be added that many unions and professional groups had little bargaining power and were more susceptible to intimidation by the Labor Courts. Many were aware of the wide range of strategies that employers used in the course of proceedings and in negotiations with the Labor Courts, such as firing strikers and union leaders, as well as refusing to pay for days not worked.²³ The most common expedients were those used to drag out the court proceedings as long as possible: a request for experts to determine cost of living indexes; allegations that certain trade unions were not legitimately representing workers; fail-

 TRT2, Processos 112, 1963; 308, 1963; 394, 1963; 416, 1963.

114

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

Figure 4: Demands per type of proceedings (January 1963 – March 1964) Source: Tribunal Regional do Trabalho 2ª Região/SP

ure of employers or their representatives to appear at DRT or TRT hearings; declaration of lack of the financial means to increase wages; accusations of irregularities in the proceedings and the courts’ lack of jurisdiction to judge certain claims; requests to declare strikes illegal; refusal to comply with agreements.²⁴ During a period of high inflation, such stratagems resulted in considerable wage losses. Certainly, numerous doubts assailed the workers when, at a union meeting, they were faced with the responsibility of filing a dispute. Indeed, would it be worth the risk of seeing their expectations dashed in court proceedings, obtaining a highly favorable outcome that would later be quashed by a higher court, feeling vindicated in the courts only for their employers not to comply with a judicial decision, or awaiting the outcome of a long-drawn-out lawsuit when time and inflation had a serious impact on their purchasing power? While 69 percent of the “out-of-court” agreements (simple homologations) were reached within 30 days, only 21 percent of the court cases (disputes) were settled within that timeframe. It follows that, to avoid procedural measures and possible appeals in the higher courts (Superior Labor Court and Federal Supreme Court), many workers and their unions would certainly prefer to conclude agreements with shorter clauses and accept counterproposals lower than those  TRT2, Processos 274, 1963; 112, 1963; 234, 1963; 238, 1963; 382, 1963; 15, 1964; 213, 1963; 238, 1963; 246, 1963; 267, 1963; 280, 1963; 213, 1963; 99, 1963; 209, 1963; 308, 1963; 325, 1963; 371, 1963; 373, 1963; 411, 1963; 11, 1963; 12, 1963; 128, 1963; 130, 1963; 168, 1963; 205, 1963; 233, 1963; 244, 1963; 251, 1963; 278, 1963; 274, 1963; 295, 1963; 370, 1963; 394, 1963; 405, 1963; 411, 1963; 425, 1963; 29, 1964; 70, 1964; 237, 1963; 240, 1963; 304, 1963; 133, 1963; 264, 1963.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

115

they could obtain in court. At an assembly of the São Paulo Trade Union of Hotel Workers and Similar Workers, which wanted a 75 percent salary increase, a member said that once a dispute had been filed, the employers would appeal the TRT’s decision. Thus, the ideal scenario would be to accept the Regional Labor Department officer’s proposal of a 65 percent increase or even less, because “as we have seen, the bosses have every interest in taking us to the Labor Court, which became clear in the round tables.”²⁵ In other words, under certain circumstances, the Labor Courts were also a good deal for employers. Time was certainly on the employers’ side. Of all the cases filed with the TST, the fastest was settled in 152 days, that is, the same length of time that 180 disputes could be settled in the TRT. However, the employers were not the only ones to file appeals. They appealed to the higher courts 49 times, while the workers’ unions filed 45 appeals. Therefore, many categories of workers felt it was not worth their while to file a dispute, as they would risk having to appeal the decision. It does not seem insignificant that 27.5 percent of disputes involved appeals. This was a discouraging figure for a considerable number of workers who did not want to bear the cost of a long wait to get wage increases amid rampant inflation.

V The documentary mass of nearly 500 cases covers a wide and varied range of situations: companies of different sizes and types of capital, professional categories and unions with different levels of bargaining power, regional distinctions, political and economic changes and numerous other variables that certainly affected the decisions of employers, workers and their respective unions when they had to choose between direct negotiations and the settlement of unresolved matters through conciliation. It would be necessary to mobilize all these aspects to try to find logics, patterns and rationalities that made one choice preferable to another. Here, I will conduct an analysis that considers the specificities of different periods, places and professional categories. There were more disputes in São Paulo and Santos, cities where the struggle for rights and the politicization of the labor movement were intense and enjoyed high visibility, while in the interior of the state, out-of-court agreements predominated (Figure 5). When we focus on large professional groups, we can see that there was a greater tendency to go to court among the categories that had

 TRT2, Processo 282, 1963.

116

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

Figure 5: Regional percentages of disputes and homologations (January 1963 – March 1964) Source: Tribunal Regional do Trabalho 2ª Região/SP

more bargaining power at that juncture (metal, port, chemical industry and bank workers). Although they were not necessarily less capable of organization and mobilization, as in the case of textile workers, the sectors with less bargaining power (workers in the food, retail and spinning and weaving sectors, among others) were more inclined to reach direct agreements with the employers, although the differences are proportionally small (Figure 6).²⁶ As for the period, the number of disputes rose sharply in the second half of 1963 (Figure 7), when the labor movement became a major player in the intensification of national political-ideological polarization. The number of strikes also increased dramatically, particularly in the last quarter of the year.²⁷ The following proposition is embedded in arguments for a labor system in which unconditional free negotiation should reign supreme, without the normative interference of the Judiciary: when the working class has greater bargaining  To define categories with greater or lesser bargaining power, I have relied on the specialized literature on the period. See Antonio Luigi Negro, Linhas de montagem: o industrialismo nacional-desenvolvimentista e a sindicalização dos trabalhadores (São Paulo: Boitempo, 2004); Paulo Fontes, Um Nordeste em São Paulo: trabalhadores migrantes em São Miguel Paulista (1945 – 1966) (Rio de Janeiro: Editora da FGV, 2008); Larissa Corrêa, A tessitura dos direitos: patrões e empregados na Justiça do Trabalho, 1953 – 1964 (São Paulo: LTr, 2010); Murilo Leal, A reinvenção da classe trabalhadora (1953 – 1964) (Campinas: Editora da Unicamp, 2012); Fernando Teixeira da Silva, A carga e a culpa; Joel Wolf, Working Women, Working Men. São Paulo and the Rise of Brazil’s Industrial Working Class, 1900 – 1955 (Durham: Duke University Press, 1993).  Felipe Pereira Loureiro, “Strikes in Brazil During the Governments of Jânio Quadros and João Goulart (1961– 1964),” 2010, 19 (typed document).

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

117

Figure 6: Percentage of disputes and homologations according to bargaining power (January 1963 – March 1964) Source: Tribunal Regional do Trabalho 2ª Região/SP

Figure 7: Comparison of disputes and homologations per six–month period (1963) Source: Tribunal Regional do Trabalho 2ª Região/SP

power, it would be in a better position to enter into direct negotiations with employers, through which it would be able to impose a wider range of demands and obtain positive results, thereby dispensing with judicial intermediation. Another line of reasoning advocates the primacy of the negotiated over the legislated as a

118

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

sine qua non factor for strengthening the unions and making them more combative, so they can directly confront the employers at the negotiating tables. However, we have observed the opposite: there was more TRT intervention precisely during the six-month period in the cities and in the categories that enjoyed better conditions for mobilizing and achieving their rights. This demonstrates that employers were inflexible in the negotiations, forcing workers to go to court, even when they were bolstered by greater bargaining power and unity in their struggles. The opposite equation – the correspondence between more mobilization of workers and less judicialization of conflicts – is favored, at least in theory, by the liberal-voluntarist system of labor relations, in which free negotiation is the rule and the negotiated prevails over the legislated. Strikes are part of the parties’ self-mediation, without requiring the intermediation of the courts and their normative decisions. The work of the Labor Courts could get in the way of completely free negotiations.²⁸ Caution is required when we depart from the models and try to get closer to what transpired. It would be a mistake to conclude that the categories with the greatest bargaining power did not engage in negotiations leading to “out-ofcourt” agreements. Let us consider, for example, disputes filed by metal workers with no record of staging strikes, since, as a rule, such measures triggered the intervention of the Labor Court. We have found that this category took part in seven homologations and seven disputes. This shows that metal workers were also often open to reaching a direct agreement. However, based on the total number of cases that did not involve strikes, homologations were much more common among the groups with less bargaining power, as we can see in Figure 8, which adds weight to the conclusion that there was less judicialization of conflicts among those groups, and not the other way around. So far, we have found that, although the rules of the game impose court intervention in many cases, especially among the more organized workers with greater negotiating capacity, particularly because strikes provide for a judicial solution, homologations were undoubtedly the endgame for a considerable portion of professional categories. But we are still looking for answers to the problem of the dual nature of collective bargaining in Brazil. This begs the following question: were the workers’ demands received more favorably in homologations or disputes?  I emphasize this theoretical, since in the United States, even after the legal innovations of the New Deal regarding collective bargaining, the exercise of the right to strike was often subordinated to the decisions of the courts, which guaranteed “business prerogatives.” See James Atleson, Values and Assumptions in American Labor Law (Amherst: The University of Massachusetts Press, 1983).

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

119

Figure 8: Percentage of disputes and homologations per group with less bargaining power (January 1963 – March 1964) Source: Tribunal Regional do Trabalho 2ª Região/SP

VI We have seen that, in the homologations, the workers shortened the amount of time it could take to reach an agreement if they entered into prolonged proceedings. However, the negative effect was the filing of a smaller range of demands. It remains to be seen how the courts responded to the workers’ demands in the 268 disputes filed (Figure 9). The Labor Courts guaranteed some rights to the workers in 62.5 percent of all disputes, allowing their “vocation for conciliation” to predominate (see “agreements” in Figure 10). Fully favorable decisions regarding the workers’ demands were relatively few among the judges, who tended to follow the Solomonic principle for the matter in dispute. Thus, partial approvals prevailed, although the number of rejections was quite low. Cases were quashed in 25 percent of the disputes, certainly a very high percentage, but this does not mean that the claims were completely shelved, since many of the matters, such as compliance with prior agreements, were considered to be individual claims. In addition, there were cases in which the parties withdrew from the proceedings on the grounds that they had reached an out-of-court settlement, in addition to those which had “procedural defects,” in which case the parties could bring another case to court. Of the 55 disputes filed, at least 29 could result in some gains for the workers, either through an agreement, filing new collective disputes or individual disputes filed with the Conciliation and Judgment Boards.

120

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

The latter could be plural, encompassing a range of workers in a branch of the economy, professional category or company.

Figure : Outcomes of disputes (January –March ) Source: Tribunal Regional do Trabalho ª Região/SP

When we only consider the disputes that resulted in a ruling, the rate of rights guaranteed by the courts (conciliation, full approval and partial approval) rises to 93 percent, although the rate granted is almost always lower than the number requested. In the case of appeals, when we compared the results obtained in the TRT and in the TST, we found that in the lower court, where the clear majority of the cases ended, the results were more favorable for the workers, having a higher total approval rate and a much smaller rate of rejection (Figure 10). The partial approvals were noticeably more significant in the TST, but that tribunal generally ratified the partial approvals of the TRT. It should be clarified that the overwhelming majority of appeals occurred precisely in cases where the first instance (TRT) only approved one or another demand in the list of claims.²⁹ A detailed examination of the proceedings reveals that the TST took a more conservative approach towards workers’ rights, appearing to “advise” the employers to take their complaints to the highest level. Employers, however, only made up 17 percent of appeals, while employees appealed in almost the

 There is no record of agreements reached in the TST, since, of course, appeals were only filed when one or both parties did not agree with a particular TRT decision.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

121

Figure 10: Outcomes of disputes in TRT and TST (January 1963 – March 1964) Source: Tribunal Regional do Trabalho 2ª Região/SP

same proportion. We can interpret this relatively low percentage as demonstrating that neither party was sure of obtaining a priori change in the judgments handed down in the lower court, which, once again, puts us on the alert, given the theory that the game was played with marked cards. All these reasonings, theories and results regarding disputes cannot be tested in analyses of homologations, since the TRT basically signed off on the agreement reached between the parties, so it does not make sense to calculate the percentage of approvals, rejections, etc. To pursue a more accurate analysis of the effectiveness of disputes and “out-of-court” agreements, such a comparison requires a more qualitative treatment with some quantitative approaches. To that end, I have examined the most controversial issues and demands that exacerbated the feelings among the parties. They were the ones that determined, in most cases, whether workers would go to court or merely seek homologation. It was also towards them that the courts had to act with increased caution, mobilizing doctrinal issues and legal traditions, which involved changes in judges’ decisions and in their stance on labor rights. This was because there were still clauses that required a political position from the judges in the context of the advance of the forces behind the coup and the workers’ movement’s redoubled struggle for rights and participation in the political scene. After all, the question is the place of the Labor Courts’ normative power at a time when some demanded that they take a stance “in defense of the Nation”

122

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

and against the supposed Trade Union Republic, while others insisted on defending the “weakest link” in labor relations. Labor courts have always had to deal with their congenital ambiguity: making decisions based on the public interest and protecting workers. In the months leading up to the 1964 coup, that ambiguity had become a veritable crossroads.

VII Let us now follow a repertoire of the matters that came before the judges when they were called on to exercise normative power, seeking to put an end to the uncertainty that arose from the conflict and expressing the force of law when handing down decisions.

Wage increases At that juncture, given the rapidly increasing cost of living, the Three-Year Plan drafted by the prestigious economist Celso Furtado was implemented in January 1963 with the aim of stabilizing the economy. At the same time, it sought to maintain the country’s economic development, associated with the implementation of a basic reform program, especially agrarian reform, although inflation control was the main short-term goal.³⁰ In the field of wage policy, the plan was basically limited to setting a 40 percent ceiling or cap for the civilian and military civil services. However, there was no mention of the private sector, which greatly displeased the National Confederation of Industry and FIESP. At least initially, the government seemed to heed the employers’ demand for a “demagogy-free” wage policy, as it needed their support for the Three-Year Plan. The message went even further: it was up to the government to control the leftist unions and strikes. Increasingly questioned by the “productive classes” about the lack of any references to private-sector wage increases, according to Felipe Loureiro, Celso Furtado implied that the ceiling for civil servants “would be used as a parameter for “all demands for wage increases.” For political reasons, the government was not in a position to say this outright to the public,” because it also depended on the sup-

 The considerations in this paragraph are primarily based on Felipe Pereira Loureiro, Empresários, trabalhadores e grupos de interesse: a política econômica nos governos Jânio Quadros e João Goulart, 19 – 1964. Dissertation (PhD in Economics) – PPGHE-USP, São Paulo, 2012, 321– 348.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

123

port of the trade union movement.³¹ Nevertheless, Loureiro reveals that, in the view of the union leaders, the wage cap for civil servants set a dangerous precedent. Unlike the employers, the labor movement organized by the Left took a decisive stand against the Three-Year Plan. The fact is that, in practice, the unions wanted to control wage increases and workers’ demands, and the relationship between President Goulart and nationalist trade union leaders gradually deteriorated.³² More than being just a sounding board for the national debate and the interplay of interests surrounding the plan, the Labor Courts were the arena where wage policy conflicts mainly developed. The following are just a few examples of debates on the subject in the TRT. The São Paulo drivers’ union claimed that the plan was not only “an official confession of the fabulous cost of living” but was itself an “inflation factor.” Meanwhile, Companhia de Transportes Metropolitanos Coletivos, the mass transport company in São Paulo, refused to advance the wage increase “because it would cause inflation at a time when the government wants to control it.”³³ The judges had to take a stand. In a case filed by the Santos metal workers’ union, the rapporteur of the decision, Hélio Tupinambá Fonseca, observed, even though… the cost of living in this country has been increasing every month, it is also true that government leaders have been taking drastic measures to try to contain this increase. We thus have the praiseworthy measures that have been taken with a view to the execution of our government’s Three-Year Plan. A measure of sacrifice, perhaps, that should include all classes, with the salutary aim of solving, and putting an end to, a calamitous situation. Hence, the inadmissibility and even impossibility of facilitating the granting of liberalities for the visible purpose of simply making one’s self agreeable.³⁴

Therefore, he decided to authorize a disagreeable wage increase that was 15 percent lower than the raise the workers had demanded. It is imperative to state that, faced with a huge demand for wage increases, the Labor Courts were shouldering unprecedented political responsibility due to the high inflation rate. Significant numbers of employers, such as São Paulo hotel owners,³⁵ considered it an “advantageous route” to break off direct negotiations and take their disputes to the TRT. They believed that, as they were unit-

 Ibid., 349.  Márcia de Paula Leite, Sindicatos e trabalhadores na crise o populismo. Thesis (mastres in Social Science) – IFCH-UNICAMP, Campinas, 1983, p. 158.  TRT2, Processo 91, 1963.  TRT2, Processo 102, 1963.  TRT2, Processo 282, 1963.

124

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

ed in the fight against inflation, the judges would decide on lower wage increases than those which the workers demanded. After all, Celso Furtado and Finance Minister San Tiago Dantas agreed with Labor Minister Almino Affonso that he would not allow wage increases to become an inflation factor.³⁶ It was not by chance that the regional officer responsible for the Santos Labor Department, “on behalf of the Federal Government,” asked for mutual sacrifices: companies should absorb wage increases “in their profit margins,” without passing them on to the prices of their products, while the city’s metal workers should never miss a day’s work and increase “national production.”³⁷ Along the same lines, the judge-rapporteur of an agreement, perhaps already seeing the signs that workers and employers would soon implode the plan, pondered: “We are convinced that it will not be the working classes who will seek to make a spurious alliance with the powerful classes to overthrow this plan.”³⁸ In disputes, at least during the first half of 1963, employers and the authorities echoed the government’s calls to form a social pact between the State, workers and business leaders to make the Three-Year Plan feasible. However, case analysis reveals that the TRT, which was aware of its independence in the separation of powers, did not make things so easy for the employers. Excluding the cases in which there was no request for a salary increase or judicial decision, the average wage increase in the disputes was 70 percent, compared to 55 percent in the homologations. At a time of soaring inflation, going to court was the most advantageous route for workers. However, such indicators are imprecise, since many variables are in play between the initial negotiations and the end of the proceedings, mainly the differences in base-dates, with different inflation rates. Therefore, I have restricted the comparison of data to the proceedings begun in November, which represent 35 percent of the total, since a large number of employment contracts ended that month. The results are now very similar: an average 83 percent wage increase in disputes and 78 percent in out-of-court agreements. The immediate but hasty conclusion – as I have come to think of it – is that it would have been better for the workers to settle directly with the employers without incurring the burden of strikes, procedural delays and possible appeals, which would compensate for the small difference in the wage increases obtained in disputes.

 Luiz Alberto Moniz Bandeira, O governo João Goulart: as lutas sociais no Brasil, 1961 – 1964 (São Paulo: Editora da Unesp, 2010), 216 – 217. However, the minister would soon oppose Joao Goulart’s economic policy; see Kenneth Paul Erickson, Sindicalismo no processo político no Brasil (São Paulo: Brasiliense, 1979), 119.  TRT2, Processo 102, 1963.  TRT2, Processo 91, 1963.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

125

However, it should be remembered that a dispute is, in general, a failed agreement, or begins due to a strike. Besides, the decision to go to court was not just a matter of small differences between what the workers demanded and the employers offered. Out of a sample of 70 disputes, I have found 14 in which it was possible to find the difference between the average increase requested (80 percent) and the employer’s counterproposal (44 percent); that is, the workers received 55 percent of what they requested. This discrepancy seemed to be sufficient reason for many categories to prefer to file a dispute. Let us then consider the cases that were judged and in which we can clearly distinguish between the average percentages requested (88 percent) and those granted by the courts (72 percent). In this case, we find that the workers received 82 percent of the amount they initially demanded, which leaves no doubt that it was advantageous to await a judge’s normative decision. This difference was, in fact, higher because, as a bargaining tactic, some categories tended to request a percentage that was higher than the cost-of-living indices. For example, footwear industry workers in Cuiabá, the state capital of Mato Grosso, asked for a 160 percent increase “to get at least 100 percent.”³⁹ However, based on a certain realism, wage demands and the TRTs’ decisions were generally very close to cost-of-living indices. Employers, on the other hand, complained endlessly that the Labor Courts granted increases higher than amounted demanded by the unions, which was a confession that they had not offered higher wages in direct negotiations. I have found nine disputes in which the TRT granted pay raises that were slightly higher than the initial sum demanded. This may not seem to amount to much, but alongside the tendency to increase workers’ wages according to cost-of-living indices, even official ones, it was enough for the employers to be defensive about the courts. The latter were adopting the practice of condemning companies whose representatives, refusing to negotiate, failed to attend hearings, which is legally interpreted as a confession of guilt. When there were different settlements or judgments within the same case for those companies, judges handed down decisions that offered more favorable terms for the workers, or simply applied a higher percentage to the wage increase as a clearly punitive measure.⁴⁰ The problem lay in how cost-of-living indices were calculated, and the social arithmetic on which the courts based their calculations was clearly precarious. Employers clung to data provided by the Labor and Social Security Statistics Service (SEPT), a body linked to the Ministry of Labor, whose percentages of ris-

 TRT2, Processo 437, 1963; see also Processo 20, 1964.  See, for example, TRT2, Processo 138, 1963.

126

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

ing living costs were almost always rejected by the unions. This was because its indices were invariably lower than those presented by the Inter-Union Department of Socioeconomic Statistics and Studies (DIEESE), an institution created in 1955 and maintained by the contributions of the trade unions affiliated with it, whose “judicious and painstaking work has already been repeatedly approved by this Noble Tribunal,” as the São Paulo bank workers’ union asserted. Although traditionally based on SEPT studies, the TRT changed its position to the point that some judges began taking a dim view of the SEPT. The president of the court, Décio de Toledo Leite, expressed himself as follows in a ruling: this presidency understands that the SEPT is an eminently political body, which varies according to the political conveniences of the moment…. It is up to class associations, especially the associations that represent the working class of Brazil, to reform certain customs that exist in this great nation and to turn black into white or vice versa.⁴¹

A TST minister (lay judge representing the workers), Luiz Menossi, went even further: the courts are not required to grant exactly the same increases as those found by bodies studying the rise in the cost of living. In fact, it is reasonable always to determine an increase higher than that found by such bodies, since they always find increases that are widely known to be lower than the real increase in the cost of living. Moreover, when judging collective disputes as a rule, some time has already passed after the calculation of the cost of living, so the additional five percent granted by the Praetorium must be maintained.⁴²

Such statements make it clear that the TRT was raising the wage indices. Indeed, by the end of 1963, a critical period in inflation and Brazilian politics, including major strikes, the court had begun to distance itself from the SEPT indices and raise the wages of professional categories by 80 percent with a deadline between the end of October and the beginning of November. In fact, that was the main achievement of the famous “Strike of the 700,000”, held from 29th October to 2nd November. Led by leftist activists at a time of acute tension with the government, the strike that paralyzed the city of São Paulo fought to consolidate all the disputes that ended in late October, involving 15 professional categories, 80 un-

 TRT2, Processo 295, 1963 (emphasis mine).  TRT2, Processo 224, 1963. This issue was addressed by Andrei Felipe Campanini in his final report on Undergraduate Science, sent to Fapesp: “A greve (en)contra a Justiça: trabalhadores, ação direta e cortes trabalhistas, 1954– 1963”, Campinas, 2012.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

127

ions and 4 federations.⁴³ Although it did not achieve this objective, the TRT decided after the strike to standardize some wage increases, doing so in 50 percent of disputes. That figure is not higher because in some cases the workers requested a smaller percentage. However, of the 13 cases in which the increase demanded was 80 percent, the court granted them in full, so that this standardization became jurisprudence, to the general disgust of most companies. The solution that some employers found was to cling to the data provided by the SEPT, which was always lower than the 80 percent increase ordered by the TRT. The companies active in the São Paulo rubber artifacts industry claimed that there was no evidence of a rise in the cost of living in the proceedings, to which the prosecutor simply replied: “It is certain, however, that the estimate of the High Court prevails,” referring to the 80 percent increase. Shortly before the 31st March coup, the TRT ordered a 100 percent wage increase for teachers in Curitiba. The more conservative TST might have ceded to the demands of school owners and overturned the lower court’s decision. However, it maintained the increase ordered by the TRT with this bombastic argument: The courts are not concerned with expert pronouncements and information from administrative bodies, so they should grant the increase they deem fair. In this case, the court that is closest to the category that requested it deemed the one hundred percent increase was necessary and there is nothing in the court records that allows us to conclude otherwise.⁴⁴

The emphatic nature of the TST rapporteur’s vote, drafted on 18th November, 1964, can only be understood in the context of the confrontations between the judiciary and the government shortly after the civilian-military coup. The Executive branch introduced its famous policy of wage tightening, forcing the Labor Courts to comply by exerting strict control over their normative power, especially with regard to wage increases. The regime that had just taken power intended to give a new direction to an institution which, from the perspective of the new rulers, had lost its authority in the face of the febrile strike movement and social and political chaos that was said to have taken hold during the Goulart administration. The argument of the TST judge, declaring independence from administrative bodies (that is, the Executive branch), can be understood as a response to laws that, since mid-1964, had increasingly limited the judges’ prerogative of increasing wages.

 Márcia de Paula Leite and Sidney Sólis, “O último vendaval: a greve dos 700 mil.” Cara a Cara, 2 (1978); Larissa R. Correa, “A ‘greve dos 700 mil’: negociações e conflitos na Justiça do Trabalho. São Paulo, 1963.” História Social, Campinas, 14– 15 (2008).  TRT2, Processo 375, 1963 (emphasis mine).

128

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

The principle that “the Judge functions as a legislator and has ample freedom to create the laws,” as declared by another magistrate,⁴⁵ had to be mutilated in the name of economic stability. The control of wages through control of the courts contained formulas considered indispensable for the success of the government’s anti-inflationary policy, “especially the Labor Courts,” a jurist later recalled, “retained in practice of granting wage hikes based on the increase in the cost of living and, in some cases, even higher.”⁴⁶ The empirical confirmation of this statement was only recently made and well presented,⁴⁷ so immediately after the coup, several judges maintained the practice adopted before 1964 of granting wage increases based on inflation rates, at a minimum, or at levels above what the employers wanted to cede, ignoring the formulas determined by the government. Proof of this is the series of laws passed after 1965, abrogating the courts’ freedom to increase wages. In short, in the months preceding the coup, arguments for a social pact in which the workers should tighten their belts on behalf of economic stability and the success of the Three-Year Plan fell by the wayside. It was up to the TRT to respect the following principle: collective disputes “aim to leave in terms of real value, the expression of nominal value, as found in individual employment contracts concluded by members of the categories concerned,” according to the rapporteur of another judgment.⁴⁸ In a high-profile case involving the male nurses of the Casa Santa charity hospital in Santos, which had disastrous political consequences,⁴⁹ the Judge-Rapporteur gave the following justification for granting them an 80 percent increase: Everyone is aware that there is currently a significant imbalance in the remuneration of labor in general as a direct and immediate consequence of the inflationary spiral to which [Brazil’s] currency is subjected by the financial policy the nation has adopted. Therefore, the wage increase demanded must be granted.

The struggle that the workers’ movement and leftist organizations waged against the Three-Year Plan is a well-known historical fact. As a result, the plan barely

 TRT2, Processo 91, 1963.  Cid José Sitrângulo, Conteúdo dos dissídios coletivos de trabalho (1947 a 1976) (São Paulo: LTr, 1978), 35.  Larissa R. Corrêa, “A ‘rebelião dos índices’: política salarial e Justiça do Trabalho na ditadura civil-militar (1964– 1968).” In A Justiça do Trabalho e sua história: os direitos dos trabalhadores no Brasil, edited by Ângela de Castro Gomes and Fernando Teixeira da Silva (Campinas: Editora da Unicamp, 2013).  TRT2, Processo 327, 1963.  Silva, A carga e a culpa, 182– 184.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

129

lasted six months and was abandoned before the end of the second quarter of 1963.⁵⁰ However, the work of the Labor Courts in that regard is still completely unknown. They were called to control the inflationary process by keeping a firm hand on wages. As workers’ organizations gained strength, many of their arguments came to influence judges, who were increasingly inclined towards a distributive policy rather than calculations intended to penalize workers. This contradiction between the imperative of capital accumulation and the containment of inflation not only led to the Three-Year Plan but daily battles in the courts through hundreds of lawsuits involving thousands of workers. Paul Singer was one of the few observers to point out that, “after a great deal of struggle, the Labor Courts began systematically increasing wages to keep pace with inflation,” in a way imposing the practice of indexing prices and wages.⁵¹ A recent study has shown that in 1963 there was a significant real increase in wages in industry, a remarkable finding, “in view of the accelerating pace of inflation and the slowdown in economic growth at the time.”⁵² This feat is attributed to the growing strength of the labor movement,⁵³ but we must also consider the somewhat distributive role of the judiciary, because, in out-of-court negotiations, the increases granted tended to be lower. However, the clauses that regulated workers’ pay were just as or more important than wage increases and sparked ferocious disputes inside and outside the Labor Courts. A close look at them brings us even closer to the exercise of normative power, comparing it with “amicable” agreements.

Wage advances Wage increases at shorter intervals were another significant advance that the workers achieved in the courts. To cope with the constant increase in the cost of living, since early 1963 they had demanded that raises be granted six months in advance. The TRT initially rejected their demand, with the justification, along the same lines as the employers, of the fight against inflation and legal constraints, since the CLT only allowed a wage increase one year after the previous judgment, thereby avoiding “breach of contract.”⁵⁴ However, the court began to

 Felipe Loureiro, Empresários, 319.  Singer, “O significado do conflito,” 19.  Renato P. Colistete, “Salários, produtividade e lucros na indústria brasileira, 1945 – 1978.” Revista de Economia Política, 29 (2009), 392 and 399.  Loureiro, “Strikes in Brasil,” 29.  TRT2, Processo 176, 1963.

130

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

hesitate in their decisions, sometimes yielding to the pressure for advance pay raises.⁵⁵ The unions demanded that the Labor Courts take a consistent stance, as a union appeal to the TST stated: given these dubious proceedings, we citizens, we workers, want to know when a legal clause is in force… so that we can be sure that the law exists, and the ironic saying “The law… Well now, the law” does not prevail, and social anarchy does not reign supreme, where only the opinions of some prevail.⁵⁶

Similar observations seem to have echoed in court. Depending on the makeup of the judges, the advance was approved in some decisions, with an argument that the unions prized: the law allowed a review of a dispute when there was “a fundamental change in economic conditions.”⁵⁷ At first, this line of reasoning convinced a few judges, who generally looked more favorably on the workers’ demands,⁵⁸ followed by the prosecutor, who issued the following opinion in November: “allow the wage review, within six months of validity. The alarming rate of the increase in the cost of living at the present time justifies this clause, which allows the workers an advance, appropriate and provisional, before the future increase.” Convinced of the fairness of this formulation, the TRT decided to allow the six-month advance. The only dissenting vote was cast by Wilson de Souza Batalha, a renowned magistrate, author of several books and lay judge representing the employers.⁵⁹ In fact, such advances became firmly entrenched in the course of the trials, because the judges no longer seemed to believe that the government could put a stop to inflation. Judge Gilberto Barroso, the rapporteur for an important TRT judgment regarding the Santa Casa nurses’ strike in Santos, raised very interesting arguments about the Goulart administrations’ policies: the galloping pace of inflation, in addition to being public knowledge, certified in other disputes of the same nature, makes it possible to apply the same basis in the present case. It is lawful and just that the same indices and principles set for similar cases should apply. We have consistently granted an 80-percent increase of the wages in force on October 31, 1962, to go into effect on November 31, 1963. Rampant inflation is not stopping or slowing down, and there is no sign that an end is in sight. On the contrary, His Excellency the President of the Republic, in a courageous interview, has shown that it is going to get worse until the so-

 TRT2, Processo 186, 1963.  TRT2, Processo 176, 1963.  TRT2, Processo 133, 1963.  This was the case with Carlos de Figueiredo de Sá, Antonio José Fava and Carlos Bandeira Lins. TRT2, Processos 136, 1963; 140, 1963.  TRT2, Processo 274, 1963.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

131

called basic reforms are carried out. They will certainly not come any time soon, as might be expected. Perhaps they will never come. On the other hand, we must avoid strikes that erupt mysteriously and end even more mysteriously. We hereby determine that an advance is granted within six months.⁶⁰

The judges unanimously approved this decision, made on 25th November, 1963, so the judge-rapporteur’s justification indicates that the TRT – or at least part of it – backed the reform policy that was so dear to the Left and increasingly supported by the João Goulart administration – particularly in its final days. On one hand, the Labor Courts were responsible for showing that one of their duties was to “prevent strikes,” expressing a critical position against the strike movement. On the other hand, since the implementation of the basic reforms considered to be the solution for controlling inflation seemed an increasingly remote prospect, advancing wages was a palliative measure adopted to compensate for wages eroded by inflation. This tendency was, in fact, firmly established by the end of 1963. Of the 179 disputes that came to trial, 50 percent included a clause on wage reviews. Only 11 percent of the proceedings that ended in decisions that favored reviews took place before that judgment, most of which were reached through free agreement between the parties, while 88 percent included the clause after the judgment, that is, as of November. This month is mentioned because another demand of the “Strike of the 700,000” was a wage review every four months. The demand was only partially achieved, but it was still very important for protecting workers’ incomes. In any case, the judiciary was not unanimous on this issue. Judge Roberto Prado stated that, if inflation persisted, “wages increases could be agreed directly by the employees together with their employers… without there being any need for the compulsory raise previously ordered.”⁶¹ That call for out-of-court settlements was well founded, in that, out of 216 homologations, 47 percent included a half-year review clause. When they were involved in a dispute, the companies rightly demanded that the matter be established “by means of free friendly stipulation,” when employers would be better able to impose their will.⁶² However, since employers were somewhat acquiescent to the new voting pattern of most judges, the battle would evoke other nuances. Initially, the advance was in the range of a 25 to 30 percent raise as of the second six months of the period during which the judgment went into effect. However, as inflation in-

 TRT2, Processo 370, 1963 (emphasis mine).  TRT2, Processo 295, 1963.  TRT2, Processo 276, 1963.

132

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

creased, workers began to demand a six-monthly raise “according to the cost of living,” because those percentages had become obsolete.⁶³ Once again, to the employers’ dismay, the TRT adopted this norm, which led some companies to appeal to the TST. The employers’ argument warned that it would be foolish to turn to the courts again six months after they had declared the rate of readjustment, so it would be more rational to set that percentage in advance.⁶⁴ The TST considered such advances to be illegal, since every dispute resolution had to stay in effect for at least one year, without its clauses being altered. Knowing this position, some employers appealed to the TST, which invariably rejected advances, further reinforcing the need to contain the inflationary spiral and observe the CLT,⁶⁵ although the TRT’s decision was only overturned in half a dozen disputes. In short, by increasing wages in advance without previously setting a percentage, the TRT was once again ignoring official indices. However, it could no longer do so after the wage tightening imposed by the military government.

The percentage clause controversy The “percentage clause” (claúsula dos avos) was enshrined in the Labor Courts, consisting of granting a smaller increase to employees hired after the base date, that is, they would receive a proportional increase on the basis of a twelfth (1/ 12 avos). A worker hired, for example, six months after the last agreement or dispute, would only be entitled to a wage increase in the proportion of 6/12 (half the amount set in the new judgment).⁶⁶ The clause simply filched a not inconsiderable share of the raise from a large contingent of workers in an unstable labor market with high turnover rates. The employers, of course, backed the need to preserve this tradition, the wage hierarchy and “the incentive to stay employed.”⁶⁷ For their part, the clear majority of the unions agreed that the clause generated wage inequality and encouraged layoffs before workers completed a year of service at a company. As the Campos de Jordão, São Paulo, construction workers’ union questioned, “where is [the longest-serving worker] in the construction industry if the majority, almost all of them, are laid off after with eleven months?”     

TRT2, Processo 333, 1963. TRT2, Processos 375, 1963 and 363, 1963. TRT2, Processo 295, 1963. See Campanini, “A greve (en)contra a Justiça.” TRT2, Processo 130, 1963.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

133

In this case, for the newly hired workers who took the place of those who had been laid off, the increase would be in the proportion of 1/12, a blatant maneuver through which the employers avoided increasing wages on an annual basis. The prosecution followed the union’s line of argument and instructed in its opinion to the TST that clause was inadvisable “because in the civil construction industry, there is very high turnover and the replacement of more senior workers could even be very accentuated and it could even accentuate the exchange of the older workers.”⁶⁸ Once again, the TRT changed its decisions, keenly aware of the debates on the subject and the constitutional precept always evoked by the workers: “the principle of equal pay for equal work.” After November, the only defeated vote in this respect was that of the jurist and representative of the employers (lay judge) Wilson Batalha. Of the total number of disputes judged, 34 percent contained the percentage clause; among those introduced before November, 56 percent included it, whereas after that month only 21 percent maintained it, because of the conservative bent of the TST and agreements between the parties in the judicial sphere. It is important to emphasize that the clause was a bargaining chip in negotiations, especially in agreements reached directly between the parties, when some categories gave up the equal raise for all in exchange for small benefits or slightly higher wage increases.⁶⁹ In fact, 50 percent of the homologations included a percentage clause, a much higher percentage than that found in the disputes. While in more than half a dozen cases the TST adhered to jurisprudential tradition, the TRT changed its former tendency to maintain the clause. A decision to that effect was upheld by the President of the Court on the basis of Case No. 320/63,⁷⁰ the same one that resulted from a decision of the “Strike of the 700,000” to file a single dispute for all categories with the same base date. Again, the labor movement had a decisive influence on TRT judgments, overturning the false argument that more junior employees in a firm did not deserve wages equivalent to those paid to their more senior co-workers.

 TRT2, Processo 130, 1963.  Examples of this can be found in TRT2, Processos 271, 1963 and 276, 1963.  TRT2, Processo 285, 1963.

134

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

Floors and ceilings Something strange seems to happen when another version of the “ideology of the justification of the wage hierarchy”⁷¹ is attacked by employers but supported by workers. Speaking on behalf of less skilled workers, the companies insisted on not including a “ceiling clause,” a formula that, since 1953, consisted of setting a cap for wage increases.⁷² For the employers, this measure was justified because of the “astronomical increases” in the wages of “engineers, technicians and specialized personnel.”⁷³ They also claimed that the ceiling, a “clause that is already customary,” “had always figured in the agreements reached.”⁷⁴ Indeed, 65 percent of the homologations included a ceiling clause, which, like the “percentage formula,” was used as a bargaining chip in negotiations.⁷⁵ The employers rose in defense of free will: “it is an informant principle of contractual law that will makes law between the parties. In fact, the will to maintain the ceiling is fully proven by previous agreements.”⁷⁶ In addition to violating this principle, which was traditionally dear to liberalcontractualist precepts, what most exasperated the employers was that the TRT used the clause to punish recalcitrant employers who were reluctant to negotiate, as a company’s appeal made clear: “First and foremost, the function of the Labor Courts is to resolve disputes within the legal framework, which does not contain any provisions authorizing the Judging Body to punish disputing parties that fail to reach an agreement.”⁷⁷ The argument was justified, since the judges did not impose the cap for companies that did not attend negotiations.⁷⁸ They even followed this procedure when the matter was not subject to dispute between the parties, constituting, in the Latin of the employers’ lawyers, an “ultra petita decision,” that is, it went beyond what the workers themselves demanded.⁷⁹ Perhaps the most annoying thing for employers who favored the “interpretative rule of contracts”⁸⁰ was for the court to fail to set the ceiling because, for employers, to establish it in a normative sentence “implied disregard  Cornelius Castoriadis, A experiência do movimento operário (São Paulo: Brasiliense, 1985), 255.  Sitrângulo, Conteúdo dos dissídios coletivos, 72.  TRT2, Processo 102, 1963.  TRT2, Processo 188, 1963.  TRT2, Processos 337, 1963; 367, 1963.  TRT2, Processo 188, 1963. The same arguments appears in Processos 240, 1963 and 354, 1963.  TRT2, Processo 188, 1963.  TRT2, Processo 367, 1963.  TRT2, Processo 188, 1963.  TRT2, Processo 354, 1963.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

135

for the contractual nature of wages.”⁸¹ That allegation is ironic, especially when the courts directly interfered in wage increases and the clauses governing their application. The TRT, and this time the TST as well, seemed to reinstate the principle of wage hierarchy in different terms: the ceiling would cause “harmful wage leveling,” directly “hurting the interests of the middle class.”⁸² Although the judges favored that principle, there was one more reason to stop setting a ceiling: how could it be justified when the majority of a firm’s employees were “low-paid” workers?⁸³ Thus, a judgment concluded: “As the salaries of the category are low, it would be wholly inappropriate to maintain a ceiling, whatever it might be, to prevent making the [wage increase] to its full extent.”⁸⁴ In fact, this cap was a formula used by companies to limit raises for the less fortunate. When the ceiling was too low, unskilled employees could even lose part of their wage increase. The disputes show that the workers put up strong resistance to the inclusion of a ceiling. The possibility of its elimination was greater when the negotiations foundered and disputes were filed, mainly because the unions followed the judges’ moves and knew that there was a tendency for the TRT to stop including the clause. This is evident when we find that 31 percent of the disputes include it; that is, less than half, compared to the homologations. This figure is to a large extent determined by the agreements reached before judgments. In any event, it is worth quoting this excerpt from testimony from the president of the São Paulo Union of Paper and Cardboard Industry Workers, at a hearing in the Conciliation and Judgment Board. According to him, the exclusion of the ceiling was in no way a concession, since it was never accepted [by the workers] and was even one of the advantages that the category had obtained about five years ago. That proposal had even been rejected previously by the ASSEMBLY OF WORKERS [sic].

In the arguments submitted to the TST, that same union sought to demonstrate that “this is not a norm that was established by the judgment being appealed” but one of the gains “snatched up in battles waged in the streets and factories,” so the “return of the ceiling” that the employers demanded “constitutes a turnaround, going back to the previous, outmoded state of affairs.”⁸⁵ Challenging the

 TRT2, Processo 128, 1963.  TRT2, Processo 130, 1963.  TRT2, Processo 377, 1963. See also TRT2, Processo 394, 1963, in which the judgment virtually repeats these words verbatim.  TRT2, Processo 327, 1963.  TRT2, Processo 337, 1963.

136

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

magistrates, an appeal the union filed with the TST, which was always ready to include the clause, went further: “when you allow a maximum [ceiling], you have to allow a minimum [floor], so justice is done.”⁸⁶ The “floor clause” aimed to establish a minimum wage, primarily for illpaid, unskilled workers, who made up the clear majority of the working class. However, the courts rarely included it in disputes (26 percent), only accepting it when there was an agreement between the parties (a “floor” figured in 23 percent of homologations). The judges were clearly concerned with the measure’s impact on inflation and insisted on “contractual freedom.” However, at least one version of the “floor,” which the unions often demanded, was upheld in disputes with the backing of the TST. In January 1963, the minimum wage rose to 21 cruzeiros (Cr$ 21,00). However, employers wanted to increase wages for employees hired in the previous months on the basis of the minimum wage they had received prior to January, thereby robbing them of the compulsory increase the government had ordered. It should be stressed that the “Strike of the 700,000” also demanded “calculating percentages based on wages in effect as of January 1963.” The employers appealed the TRT’s decision, claiming that, according to it, every worker hired, for example, between May and 31st December, 1962, who received less than the minimum established on 1st January, 1963, would have a guaranteed 80 percent raise based on a minimum wage of Cr $ 21,000.⁸⁷ This was a means the TRT found to ensure that the employers did not gobble up a considerable part of the wage increases for those workers who were paid less than the current minimum wage. The employers’ main claim, as we can see in one of the appeals filed with the TST, was that such decisions were characterized as a “floor” and would make the minimum wage that went into effect in January retroactive. In so doing, “The Worthy Judges of the TRT would be invested with the powers of Legislators,” which the experienced Catholic lawyer Mário Carvalho de Jesus countered by saying the appellant “had forgotten the normative power conferred on the Labor Courts by the Federal Constitution.”⁸⁸ It was precisely on the basis of those powers that, following the military coup, the TRT put an end to the notorious “ceiling clause” in 1966 and began to mention the “floor clause” in rulings after 1965. Perhaps in a struggle against the straitjacket that the military government imposed on it, because there was a controversy about the constitutionality of the measure, to escape criticism the

 TRT2, Processo 375, 1963.  TRT2, Processo 333, 1963.  TRT2, Processo 325, 1963.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

137

TST itself called the floor a “normative wage,” making it a “professional salary” that became the “customary rule in disputes.”⁸⁹

Incompetence or risk? Since 1965, employers were also prevented from using a clause which the labor movement abhorred: “companies are reserved the possibility of being excluded from the present wage increase, due to economic and financial incapacity proven before the Labor Courts.” However, in 1963, that clause began to be bombarded by the TRT, which only approved it in 5 percent of disputes, while it appeared three times more often in homologations. Not content with that, the employers gave the clause a considerable boost by adding contractualist arguments: they could sign “with their respective employees, wage agreements on a basis lower than that established in the present agreement.” This infuriated the prosecutor, the above mentioned Roberto Puech, who raged: “the terms are absurd and it is a wonder that the employees’ union agreed to them… Therefore, the clause is not only strange but abusive and illegal, and cannot be a matter for judicial homologation.” Once again, following the guidance of the Prosecutor’s Office, except for Wilson Batalha, the judges made the law prevail over the negotiated agreement.⁹⁰ The employers usually appealed to the TST whenever the TRT rejected the financial incapacity clause. The TRT understood that the alleged “encumbrances”, such as shrinking bank credit, inflation and deficits, were part of the “risk that the employer takes on when running his business,”⁹¹ and “constitutes the company’s foreseeable risk of raising its employees’ wages.”⁹² On the eve of the 1964 coup, the rapporteur Hélio Tupinambá was even more incisive: [despite] the fact that the financial situation of the same [hospital institutions] is difficult, certainly… the situation of those who live exclusively on wages is even more so. The [employers] have the means to ameliorate the situation in which they find themselves.⁹³

    

Sitrângulo, Conteúdo dos dissídios coletivos, 77. TRT2, Processo 168, 1963. TRT2, Processo 128, 1963. TRT2, Processo 274, 1963. TRT2, Processo 29, 1964.

138

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

These conclusions were also due to pressure from the labor movement which, since the 1950s,⁹⁴ had sought to stop the “veritable wave of pretended financial incapacity aimed at splintering the effectiveness of the decision that raised wages” according to the findings an attorney produced for the TST,⁹⁵ which only overturned the TRT’s decision in three cases.

Juggling dates We have followed several of the employers’ strategies, based on case law, especially from the TST, to control all or part of wage increases through the percentage clause, the ceiling clause, claiming financial incapacity and the rejection of a minimum wage. Another strategy was demanding that the judgment go into effect as of the date of its publication and not the base date, which, depending on the amount of time that elapsed between one and the other, could eat up a few months of the wage increase. In a clear departure from the conservative TST, which considered the retro-ruling of a judicial decision to be unconstitutional, the TRT judges, with the once again opposing and again defeated vote of Wilson Batalha, insisted that, by failing to go into effect as from the base date, the judgment “would cause unfair and undue damage to employees, not fully correcting the gap between the nominal wage and the real wage.”⁹⁶ Therefore, in yet another respect, the TRT’s intervention was clearly favorable to the workers’ purchasing power.

VIII I believe I have demonstrated that, although out-of-court agreements had certain advantages, the use of normative powers was more beneficial for the workers. The clauses that reduced the employees’ purchasing power are always more consistently present in homologations, although generous ones are scarce. The ceiling and percentage formulas and financial incapacity clauses are clearly disproportionate. This explanation may sound tautological because, if the more organized and mobilized groups tended to file more appeals with the Labor Courts than their less orderly counterparts, it follows that they were in a better

 Corrêa, A tessitura dos direitos, chapter 2.  TRT2, Processo 130, 1963.  TRT2, Processo 128, 1963.

4 Agreements and Judgments: The Labor Courts in the “Long Year of 1963”

139

position to win more rights by going to court than simply through homologations. However, I would like to emphasize four aspects. First, this reasoning is not as obvious as it seems because we did not know which professional groups went to court more often. To determine that, it was necessary to divide the cases into homologations and collective disputes. Second, as I have explained, it could be conjectured that the categories with greater bargaining power preferred direct confrontations with employers without judicial intervention. Third, we must consider that several weaker unions also filed collective disputes with the TRT and certainly garnered more rights than they would have if they had limited themselves to direct negotiations. This is because the more organized professional categories with greater bargaining power tended to get more concessions in the courts, which, in their turn, sought to establish equal rights for all workers. The judges faced pressure from so-called national-reformist trade unionism, led by Communists and workers’ organizations. To a large extent, this resulted in a gradual shift of TRT judgments in favor of union demands. However, this study would be incomplete and highly partial if it did not consider the limitations and other possibilities of normative power, which are the subject of the following brief chapter.

5 The Act of Judging: Restrictions and Possibilities I Regarding the activities of the Labor Courts as a normative instance for raising wages, the main item on the agenda of collective disputes and other matters under negotiation, as I observed in the first chapter, it has been said that judicial arbitration supposedly turned negotiations and collective hiring into “veritable rituals devoid of any financial significance for the workers.”¹ However, in welldocumented research including a large number of cases from collective conflicts between 1953 and 1964, Larissa Corrêa has revealed much more complex “rituals.”² An important point of contention during that period was the calculation of the index used to determine the rate of inflation and, consequently, cost of living raises. In several campaigns for wage increases and mass strikes, such as the “Strike of the 400,000” in October 1957 in the city of São Paulo, after the collective disputes were filed, the labor movement exerted strong pressure on the courts. When that strike broke out, Judge Helio Guimarães, perhaps astonished, observed: in a time of agitation caused by the rising cost of living, by political passions, by agitators of every type and kind, even the cost-of-living indices have suffered, in our view, the influence of the opposing groups.

He went on to declare: we are witnessing the so-called phenomenon… of group pressure on the execution of government policy. This is because each party produces a certificate with the cost of living that suits them.³

Therefore, judging with a view to achieving “equity,” that is judgments that subordinated the interests of workers and employers “to the higher interests of production” did not mean subjecting the judges to the fixed rules of pre-1964 eco-

 Armando Boito Junior, O sindicalismo de Estado no Brasil: uma análise crítica da estrutura sindical (São Paulo: Hucitec, 1991), 49.  Larissa R. Corrêa, A tessitura dos direitos: patrões e empregados na Justiça do Trabalho, 1953 a 1964 (São Paulo: LTr, 2011).  In Luiz Roberto Puech, Direito individual e coletivo do trabalho (São Paulo: Revista dos Tribunais, 1960), 387– 388. https://doi.org/10.1515/9783110638844-011

5 The Act of Judging: Restrictions and Possibilities

141

nomic policies. On the contrary, the principle of equity is inherently ambivalent because, according to the jurist Luiz Roberto Puech, it is a “remarkably subjective standard through which the judge (when forming his conviction) is not limited to strict rules.”⁴ “Social interest” could benefit both employers and workers or generate a “duality of solutions.” This was because the decision entailed filing appeals, leading to disagreements among the judges in different instances of the courts, as was the case during the “Strike of the 400,000”.⁵ Therefore, this is not a ritual in which every step is pre-determined. For union leaders and lawyers, it was crucial to know which magistrates would judge a case, as their “profiles” strongly influenced the decisions.⁶ Depending on the situation, the workers applied pressures and used a range of maneuvers to confuse and hinder judgments that might go against them. In the words of one union leader, Afonso Delellis, it was necessary to “create the business in such a mixed-up way that the solution could not be given in a sentence [that went against the workers’ interests].”⁷ That is, they knew, or sought to find out, how the judges usually handled settlements. We can get a partial idea of this through their dissenting votes.

II It is otiose to say that there was no consensus among judges when reaching a decision, or that the majority were always favorable or unfavorable towards the workers’ demands. The lay judge representing the workers, Antonio José Fava, and his counterpart representing the employers, Wilson de Souza Campos Batalha, always voted in favor of the parties they represented. Nevertheless, we can see over the course of the period in question that the balance swung in favor of the workers, as the lay judge representing employers, Campos Batalha, was increasingly isolated in his dissenting opinions. Once, he was sternly admonished by the prosecutor, Roberto Puech, who took a highly unusual approach in a case for which Batalha was the rapporteur.⁸ Among other things, the case involved the application of a decree stipulating a professional salary for maritime workers. Batalha argued that, because it was a decree, the executive branch only had the authority to set wages for state and parastatal companies. Therefore, he     

Ibid., 390. Ibid. Larissa R. Corrêa, A tessitura dos direitos, 125. Ibid., 149. TRT2, Processo 63, 1963

142

5 The Act of Judging: Restrictions and Possibilities

denied the extension of such rights to the river transportation workers of Presidente Epitácio (state of São Paulo), who were employed by a private company. The majority of the judges voted the same way. However, the prosecutor disagreed with the decision and decided to appeal to the Superior Labor Court, as he believed that the application of the decree was based on doctrine and jurisprudence, in addition to the “imminence of a strike.” Although the TST rejected the appeal, considering that it could only be filed by the parties themselves (the workers’ union), it is important to note the unflattering terms in which Puech referred to the lay judge representing the employers: With the utmost respect and appreciation for the Honorable Judge Dr. Wilson de Souza Campos Batalha, we wish to point out the constant rejection that has isolated Your Excellency… While the noble Judge Batalha has rejected the application of the laws that set professional wages, not only for maritime workers but also for teachers, doctors, professional journalists, etc., he has repeatedly been defeated in the judgments of the Regional Labor Court [emphasis mine].

Puech went on to say that the TRT was mistaken in taking a decision that went against its previous judgments on that issue, because some of the Judges have clearly overlooked… the matter under discussion… as if it were something new and had never been discussed in so many successive cases every time the application of any type of professional wage has been invoked and that application has been granted… the decision is therefore not applicable, not even due to concerns about the consistency of the Honorable Court, which has been undermined. It is urgent to overturn it to ensure good social order.

Although suspect, the employers’ “counter-arguments” came out in defense of Wilson Batalha, accusing Puech of not even attending the session where the matter was discussed, in addition to expressing “a certain animosity against the illustrious Rapporteur of the judgment,” the “author of numerous monographs, constantly cited in works by renowned teachers, and arguably one of the greatest authorities on Labor Law and Labor Cases.” Therefore, the prosecutor was only seeking to “attack that worthy Judge, rather than the decision under appeal.” Indeed, in his allegations, the prosecutor sought to underscore Batalha’s isolation when voting on decisions, which, according to Puech, led to “constant rejection” by the judges. It is almost impossible to determine how much animosity he held against that erudite lay judge, but a quick tally of the results of the votes confirms his isolation. In the collective disputes judged during the 15-month period in question, the TRT voted 459 times. As we can see in Figure 11, Wilson de Souza Campos Batalha cast the most dissenting votes by far of all the 13 judges

5 The Act of Judging: Restrictions and Possibilities

143

who voted on decisions in such cases. Following a curious symmetry, he was followed by another lay judge, the representative of the workers, José Antonio Fava, and the magistrate Carlos Bandeira Lins, who invariably voted in favor of the workers, closely following Fava’s votes; both, taken together, total the same number reached by Batalha.

Figure : Dissenting votes per judge⁹ Source: Tribunal Regional do Trabalho ª Região/SP

The consistency in this regard is even more evident when we note that Judge Luiz Carlos de Figueiredo de Sá is a close third (9.5 percent of dissenting votes) – a magistrate who had joined the Communist Party and seemed to inspire a certain animosity in the courtroom. Based on an interview with the attorney and former Labor Minister Almir Pazzianoto, Larissa Corrêa observes that

 The full names of the judges are as follows: Wilson de Souza Campos Batalha, João Alberto Bressan, Fernando de Oliveira Coutinho, José Antonio Fava, Hélio Tupinambá Fonseca, Gilberto Barreto Fragoso, Homero Diniz Gonçalves, Hélio de Miranda Guimarães, Carlos Bandeira Lins, Marcelino Marques, José Teixeira Penteado, José Roberto Barreto Prado, Luiz Carlos de Figueiredo de Sá.

144

5 The Act of Judging: Restrictions and Possibilities

Sá’s judicial decisions even disturbed the professionals who identified with his ideals, going so far as to upset the labor lawyers representing the workers… By voting incontestably in favor of the workers, Sá frequently ended up “tipping the scales” of the decision.¹⁰

Figueiredo de Sá did not cast more dissenting votes because, out of a sample of 90 disputes judged (see Figure 12), he was only present at half the total number of sessions, while Batalha, Fava and Lins attended them more “assiduously.” The other nine judges’ dissenting votes ranged between just 1.5 and 7.5 percent (Figure 11). In any event, Wilson de Souza Campos Batalha was unique in his degree of isolation, as Roberto Puech made a point of observing in his appeal to the TST. He was on his own in 60 percent of the cases where he cast a dissenting vote, while the other lay judge, Antonio Fava, found himself in the same position in 13 percent of his dissenting votes and Figueiredo de Sá in just 7 percent. The other judges were rarely the only “losers.”

Figure : Judges’ attendance at court sessions Source: Tribunal Regional do Trabalho ª Região/SP

 Larissa R. Corrêa, “A ‘rebelião dos índices’: política salarial e Justiça do Trabalho na ditadura civil-militar (1964– 1968).” In A Justiça do Trabalho e sua história: os direitos dos Trabalhadores no Brasil, edited by Ângela de Castro Gomes e Fernando Teixeira da Silva (Campinas: Editora da Unicamp, 2013), 289.

5 The Act of Judging: Restrictions and Possibilities

145

An analysis of defeated votes reveals the judges’ positions on the workers’ demands and provides a very accurate idea of their alliances during the court sessions. Those votes sparked the main controversies. Thus, they are a better guide for research than the winning votes, which were much more varied. Figure 13 shows that the total number of dissenting votes cast by three judges (Wilson de Souza Batalha, Homero Diniz Gonçalves and Hélio de Miranda Guimarães) was always against the workers’ demands, regardless of the matter in question. Four others (João Bressan, Hélio Tupinambá Fonseca, Gilberto Fragoso and José Penteado) did not always vote the same way, but mostly were in favour of the employers. On the opposite side, we see once again that Antonio Fava, Carlos Bandeira Lins and Luiz Figueiredo de Sá, as well as Marcelino Marques, were completely on the side of the unions’ demands, while two others (Fernando Coutinho and Roberto Prado) always varied when casting their votes but tended to favour the workers’ interests

Figure 13: Dissenting votes for and against workers Source: Tribunal Regional do Trabalho 2ª Região/SP

When we analyze the overall tally, the number of dissenting votes that went against the workers’ demands (57 percent compared to 43 percent in favor) sheds light on some interesting aspects. First, despite these percentages, as we have seen in the previous chapter, the TRT’s decisions tended to go in favor of the workers’ demands. After all, we are considering the losing votes in decisions that tended to benefit the workers. Secondly, the position of the lay judge representing the employers and his increasingly “contrarian” vote were partially responsible for that total of dissenting votes. He was increasingly isolated, particularly between late 1963 and the first months of 1964, when the majority of

146

5 The Act of Judging: Restrictions and Possibilities

judges voted in favor of the workers on more controversial matters (advances on wage increases, caps and the minimum wage, the time frame for increases, the percentage clause and financial incapacity of companies), as we have seen. This also shows that we must relativize how much Figueiredo de Sá “upset” his colleagues. Thirdly, although the initial positions of judges like Sá, Antonio Fava, Bandeira Lins and Fernando Coutinho gained supporters, we can see that, over the course of those 15 months of constant social unrest, there was a veritable polarization along class and ideological lines among most of the judges, particularly if we consider those who most frequently attended court sessions. It is not by chance that those three magistrates were the targets of surveillance and persecution by the military regime that took power in 1964. Fourthly, at least regarding collective disputes, we should re-evaluate the theory that the lay judges representing workers were “docile” and tended to support the decisions of the career judges, even going against the interests of those they represented.

III We must also consider the moorings and limitations of normative power, that is, of the judges’ decisions, as Brazilian labor jurisprudence greatly reduces the range of negotiable items. It is enough to note that the “Strike of the 700,000” of 1963 added demands to the list that were seldom conceded in judicial decisions. Additional pay for length of service, double paid leave, and the guarantee of the free activity of trade union delegates in the workplace were some of the items that the magistrates solemnly disregarded in their agreements. The TRT was very parsimonious when granting rights that depended on specific legislation, such as the family salary, clauses related to working conditions, and those involving union activities in the workplace, a historically insurmountable limit in labor law. The judges argued that several demands, such as professional salaries, should be the subject of “labor contracts” or “collective agreements,” which amounted to including them in matters subject to “free and direct negotiations.”¹¹ Therefore, it is important to analyze the impact and scope of judicial decisions. The judges sought to set more or less consistent parameters for all work-

 See, for example, TRT2, Processo nº 259, 1963 (on professional salaries); Processo nº 103, 1963 (family salary); Processo nº 417, 1963 (profit sharing).

5 The Act of Judging: Restrictions and Possibilities

147

ers, as in the decision to increase wages by 80 percent as of November 1963. In one of the judgments on that matter,¹² the judge-rapporteur of the TRT observed: the present dispute gives rise to no further difficulties. In order to determine whether the increase is necessary, the same criterion will be adopted in the solution of other disputes in order to avoid creating a situation of inequality between the working classes, only establishing [different criteria] for matters unique to each category. The 80-percent index has been accepted in all other agreements with the same base date. This is, incidentally, the officially accepted cost of living increase.

In the appeal filed with the Superior Labor Court (TST), employers from the footwear industry responded with the argument that the reasoning set down in the judgment was “simple and simple-minded, overlooking local conditions and aspects relevant to the nature of the industrial activity in which the opposing parties are involved.” To demonstrate that their arguments were sound, they added: The industrial activity resulting in the production of footwear, like any other, is followed and depends on the sales of that production at a price capable of coping with the effects of the competition, which in this case is felt ever more keenly in the markets of the State of São Paulo due to the invasion of products from the States of Guanabara and Rio Grande do Sul.…Why, then, attempt to treat different situations equally?

However, the TST upheld the TRT’s decision, “firmly and securely shielded in the official indexes of the increased cost of living.” Judgments like this one attempted to mitigate the effects of a system of labor relations based on single unions. After all, the Labor Courts were just a small part in the broader system of Brazilian labor relations, following a vertically organized union structure that prioritized local agreements. Therefore, we must take into account the highly fragmented nature of collective disputes and negotiations in Brazil. The labor unions could file a dispute with the courts in two ways. One was to take to court a specific employer (usually the owner of a firm or business establishment) or several companies from the same industry. In this case, we have what I will call a “union-employer” dispute. Another way was to take an employers’ syndicate to court, which was a “union-syndicate” dispute. Knowing the outcomes of disputes in situations involving each type of relationship is essential if we want to speculate about the extent of the rights achieved. In other words, it is important to know if the achievements were limited to one or just a few companies or if they extended to an entire industry in a given municipality, or even a Brazilian state. Furthermore, the question is pertinent for determining in what

 TRT2, Processo nº 295, 1963.

148

5 The Act of Judging: Restrictions and Possibilities

situations and for what reasons the employers were more willing to engage in dialogue and the concession of rights. In disputes involving strikes, the union-employer relationship represents 53 percent of the case records, compared to 47 percent for the union-syndicate relationship. The slight prevalence of disputes in which the companies brought the case to court suggests that the employers’ syndicates were somewhat more inclined to enter into negotiations. This is because they were less frequently taken to court, whereas specific employers or groups of employers were more recalcitrant about engaging in dialogue. Furthermore, negotiations and rights achieved in disputes were more fragmented and decentralized when employers were involved, than when unions confronted syndicates. Thus, the larger number of court cases involving unions versus companies tends to harm the isonomy of workers in the same category, field or profession. The explanation for this phenomenon is that, in this case, the normative power of the courts reached fewer groups of workers than would be expected in union-syndicate disputes. It is hard to determine why the business or trade unions were the respondents, but in many parts of the country, employers in several industries were not organized or represented by class entities. As for the spatial scope, 62 percent of local disputes (municipalities) involved unions versus employers, compared with 38 percent of cases involving unions versus syndicates. Once again, fragmentation was found in most cases. In the opposite direction, of the 14 statewide disputes, all involved cases against the employers’ syndicates. This was partly due to the larger number of workers’ federations involved in these cases, giving more scope to negotiations and litigation. However, such disputes represent a small percentage of the total, since the representation of workers by federations was an exception provided for by law for some professional categories, such as those which were not organized in trade unions. Regarding the achievement of rights in a given case, there are no major discrepancies. In disputes with employers’ syndicates, the workers obtained some rights in 81 percent of the cases. The decision went against the company or companies in 76 percent of disputes. The percentages of full approval and dismissal were virtually the same; the greatest difference was found in partially favorable decisions (38 percent in the union-syndicate relationship versus 26 percent in the union-employer relationship). Therefore, the workers obtained better results from union-syndicate disputes when they were linked to strikes. This seems to demonstrate, once again, that specific employers (one or more companies) were less flexible than employers represented by their associations. Although the differences between the results are not great, we can speculate that the employers’ syndicates tended to offer the workers more satisfactory solutions. They

5 The Act of Judging: Restrictions and Possibilities

149

may have done so to reduce the discrepancies in the costs of the workforce for all employers in the same industry, somewhat regulating the employers’ competition in the labor market. As for specific companies that did not have a syndicate to represent them, they were stingier, probably exacerbating intra-employer competition. However, such theories require sound empirical testing. In any case, the main problem for workers seeking to achieve a better wage balance was the decentralization of negotiations and disputes, involving a myriad of companies and employers, individually or in groups. It should be noted that 85 percent of the cases were local in scope, which should not be surprising, since the corporatist system is based on one union per municipality, which contributes to the fragmentation of struggles and rights. When we look at disputes that were not linked to strike action, the decentralization is much more visible, reaching 75 percent of the cases against specific employers, who were involved in 82 percent of local cases. The fragmentation is all the more significant when we find that 14 percent of the disputes were dismembered, that is, the judgments established different clauses for the different employers or companies involved in the same case. Now let us go on to examine how the trade union movement positioned itself to confront this problem.

IV If they were not frequent, successful requests for the extension of a specific agreement or judgment to a broader group of workers of a given professional category were not uncommon. This occurred in a dispute filed against FIESP [the Federation of Industries of the State of São Paulo] by the Federation of Workers in the Metal and Mechanical Metallurgical Industries of the State of São Paulo.¹³ The dispute involved 21 labor unions and 14 employers’ syndicates, covering the state capital and several cities in the interior of the state except for Piracicaba and Santos, which had reached separate agreements. When assessing that the outcome of the negotiations between the parties had been advantageous, the workers’ union requested its extension to the “non-organized” workers in the interior of São Paulo, that is, to those who were not yet represented by unions. FIESP argued that the extension would be illegal and inappropriate “to what is already maximally extensive.” The employers’ organization went on to claim that the CLT required the “demonstration of the will” of those “marginalized”

 TRT2, Processo 132, 1963.

150

5 The Act of Judging: Restrictions and Possibilities

in the agreement and that there was still a need to prove their existence. However, the prosecutor and the TRT judges granted the requested extension. In this case, the presence of the workers’ federation as plaintiff is particularly noteworthy, encompassing several unions from different cities. Even more important, it should be noted that FIESP was the respondent, not a vast number of employers’ unions or employers. This was an orientation of trade unionism dominated by communists and activists of the Brazilian Labor Party, which will become clearer in the following pages. The loophole that allowed workers’ federations to file a dispute was precisely the fact that the CLT to allowed them to represent “non-organized workers,” as did the Federation of Garment Workers of São Paulo, representing all the non-organized – “without the respective trade unions” – as an immense professional group: workers who manufactured footwear, clogs, heels and wooden shoe stretchers; tailors and seamstresses; workers who made clothes, umbrellas, walking sticks, gloves, purses, “protective skins,” combs, buttons and the like, and “ladies’ clothes and hats.”¹⁴ Despite the industrialists’ protests, the court ruled in favor of such representation in the case, as it did in all the other cases in which workers’ federations were the plaintiffs. In a dispute filed by the employers’ syndicate against the Trade Union of Workers in the Dairy and Sugar Derived Products and Coffee Roasting and Grinding Industry of São Paulo, Mogi das Cruzes and São Roque, the Federation of Food Industry Workers was represented in one hearing by its president, the communist, Luiz Tenório de Lima, who appeared under the pretext of being an “auxiliary of the respondent.” Surprisingly, it was he who signed the agreement.¹⁵ In a lawsuit filed by the Sorocaba trade union for retail workers, the judges disagreed as to whether the federation for that professional category could participate in the agreement to provide “mere assistance”, but the decision prevailed that the union could not only attend the hearing but was a “legitimate party” in the dispute.¹⁶ Taking on FIESP was, in turn, a strategy for avoiding the tremendous fragmentation of negotiations and disputes. The Federation of Food Industry Workers put it this way: the entire professional category of workers in the meat, by-products, slaughterhouses and meatpacking industries would have to go from company to company to discuss its demands. They would overwhelm this DRT with lawsuits and, based on the rancid views of

 TRT2, Processo 288, 1963.  TRT2, Processo 285, 1963.  TRT2, Processo 56, 1964.

5 The Act of Judging: Restrictions and Possibilities

151

the powerful FIESP, this Honorable Court would have to deal with countless collective disputes.¹⁷

This statement is even more significant when we observe that 48 percent of the union-employer cases included more than one respondent, 27 percent of included a range of two to 10 employers and 10 percent ranged from 22 to 90. In contrast, the union-syndicate disputes show that 65 percent included just one employers’ association as the respondent, thereby reducing that extraordinary fragmentation. It was precisely with the aim of maintaining this fragmentation and disintegration that FIESP brandished its “rancid views.” In all the cases filed against it, FIESP claimed that it did not have the legal power to represent companies because it was a “Union” of 86 syndicates with the exclusive prerogative of coordinating them. This view dated back to the 1930s, when FIESP spared no effort to thwart the corporatist project with regard to the vertical organization of employers’ associations, a model that was also dear to Italian corporatism. It supported an eclectic federation encompassing several economic sectors in a single body, like itself, but outside the structure of syndicates linked to the State. São Paulo employers were victorious in their dispute with Oliveira Vianna regarding the Organic Law of Unionization of 1939. From that point on, the employers’ associations avoided the fragmentation of unions and syndicates by claiming that they did not identify with professional entities. In other words, the employers broke the symmetry with the workers’ organizations, because they could unite on the basis of general economic interests, of their class, and not as professionals, thereby preserving the federations’ variety and autonomy.¹⁸ On the eve of the 1964 coup, the Labor Courts understood the opposite. FIESP continued to assert that it was not authorized to represent a syndicate or delegate powers, so it could not take part in collective disputes. Thus, according to the rules governing the trade union/syndicate framework, FIESP should not be confused with the employers’ federations formed to bring together specif-

 TRT2, Processo 392, 1963.  Maria Antonieta Leopoldi, Política e interesses na industrialização brasileira (São Paulo: Paz e Terra, 2000); Idem, “A economia política do primeiro governo Vargas.” In Brasil republicano, edited by Jorge Ferreira and Lucilia de Almeida Neves Delgado (Rio de Janeiro: Civilização Brasileira, 2003), vol. 2; Barbara Weinstein, (Re)formação da classe trabalhadora no Brasil (1920 – 1964) (São Paulo: Cortez, 2000); Vanda Maria Costa, A Armadilha do Leviatã (Rio de Janeiro: Editora da UERJ, 1999); Angela de Castro Gomes, “A práxis corporativista de Oliveira Vianna.” In Élide Rugai Bastos et al (eds.), O pensamento de Oliveira Vianna (Campinas: Ed. da Unicamp, 1993).

152

5 The Act of Judging: Restrictions and Possibilities

ic groups of companies, such as the Federation of Chemical Industries, Federation of Metalworking Industries. Furthermore, FIESP stated that it was impossible to convene several individual firms to attend a general meeting to inform them of the workers’ demands. Clearly, FIESP intended to maintain the fragmentation of collective negotiations. As a result, it restricted the fragmented system of negotiations and disputes to the unions, federations and confederations of workers, reserving for itself the civil and therefore non-union character of the entity. However, in all cases, the TRT rejected the arguments of the industrial federation, following the opinions of prosecutor Roberto Puech, who, at one point, expressed his irritation with FIESP’s repeated arguments: “if [FIESP] were to abdicate the union tax, we could glimpse the sui generis entity that it pretends to be.”¹⁹ The TRT, for its part, ruled that “the case law is reiterated accordingly.”²⁰ The nationalist and “reformist” leaders were even more daring, forcing open the doors of DRTs and TRT to illegal organizations parallel to the official union structure. In one case, a “friendly climate but without any prospects of agreement,” the employers and the Santos Trade Union Forum, a powerful parallel entity of the Santos left, sat at the negotiating table, bringing together almost all the unions.²¹ In another case, the Federation of Tourism and Hospitality Employees in the State of São Paulo had to appeal against an agreement reached in the DRT by “elements foreign to the category present at the meetings,” referring to the Santos Trade Union Forum.²² The audacity of the trade union movement began to threaten the entire system that supported the union structure and regulated collective bargaining.

V The employers were taken by surprise during that turbulent month of November 1963, when they found Dante Pelacani, the director of the National Confederation of Industrial Workers (CNTI) sitting across from them at the DRT’s negotiating table. He was carrying a power of attorney from the São Paulo’s metalworkers’ union to negotiate with the Syndicate of the Electric, Electronic and Similar Ap-

 TRT2, Processo 90, 1963.  TRT2, Processo 392, 1963.  TRT2, Processo 253, 1963. Regarding the Forum, see Fernando Teixeira da Silva, A carga e a culpa. Os operários das docas de Santos: direitos e cultura de solidariedade, 1937 – 1968 (São Paulo: Hucitec; Santos: Prefeitura Municipal de Santos, 1995), chapters 5 and 6.  TRT2, Processo 293, 1963.

5 The Act of Judging: Restrictions and Possibilities

153

pliances Industry of the State of São Paulo.²³ Waldemar Gola, the attorney who always defended FIESP in court, then argued that the CNTI could only represent workers in disputes when there was no union or federation that could play that role. In addition, according to him, the case was not a litisconsórcio (“joinder”) – a legal loophole that the Confederation exploited. It would only be characterized as such when all parties shared a common interest, which he claimed was not evident there, “since each category has unique conditions and situations that [would] be better discussed among the corresponding entities.” Unsure how to deal with the controversy, the chairman referred the matter to the DRT’s legal counsel. It is worth analyzing his opinion because this reveals how legal pathways could be exploited for such different purposes, especially when there were two conflicting legal norms in play. According to the DRT’s advisor, Eduardo Carvalho Tess, disputes could follow two legal paths: the Consolidation of Labor Laws (CLT) and decree nº 9.070, the “infamous” law on strikes issued in 1946, whose impacts will be discussed in the following chapter. The decree provided for conducting the conciliatory phase at the DRT, while the CLT ordered that disputes should be handled directly by the Judiciary in urgent cases. In Carvalho Tess’s opinion, the dispute in question was covered by the decree, not the CLT. The “strike law” referred to “interested workers and employers or their representative associations,” a determination which, in the words of that opinion, is far more liberal than the formalism of the “prerogative of trade union associations” determined in art. 857 [of the CLT]. The section cited grants the possibility of the administrative phase of the dispute [ranging] from a small group of factory workers to its representative entity of the highest degree, failing to inquire whether or not there is any type of union association.

Therefore, in Carvalho Tess’s view, decree nº 9.070 had a broader scope regarding the entities that could represent workers, thereby legitimizing the federation’s involvement in this case. The interpretation in his opinion is so heterodox that, had it become well-established jurisprudence, it would eventually have imploded the model of collective bargaining based on restricted representation by trade unions. The legal advisor accurately observed the quasi-novelty of the matter, as “the subject has not been brought to court very often, especially to the extent to which it is being considered in this case.” Furthermore, his opinion adopted the “theory of the simplification of formalities,” more or less in the terms drawn up by the trade unions on “matters of procedural accumulation.” In

 TRT2, Processo 322, 1963.

154

5 The Act of Judging: Restrictions and Possibilities

other words, sole representation by the federation, “cuts down on procedure: instead of proposing as many cases as there are joinders, there is only one case for all of them.” Duly instructed, the regional Labor commissioner adopted the opinion of his legal advisor, but the employers refused to budge: they rejected the presence of the CNTI. The debates became so tense that the commissioner made a point of stating that, on that date, 25th October, at 2:00 a.m., there arrived in São Paulo His Excellency, the Minister of Labor, Senator Amauri de Oliveira Silva, to personally intervene in the negotiations underway with the firm aim of reconciling the parties’ interests so that the strike movement that was developing should not take shape, as that would have serious consequences due to the disquiet it could cause. From the beginning, that same night, His Excellency established contact with the workers’ representatives at this DRT’s headquarters in a meeting that went on until the early hours of the morning (emphasis mine).

The minister would not normally have sacrificed so much time, energy and sleep over one dispute, no matter how atypical it might have been, nor would he have interfered in matters pertaining to the Judiciary, no matter how noble the cause. The problem is that those negotiations were accompanied by others “next door.” All indications are that it was dispute nº 320, in which the CNTI once again had taken FIESP to court.²⁴ The context was the preparations for the movement that became known as the “Strike of the 700,000”, which paralyzed the City of São Paulo between 29th October and 2nd November. According to the union leader Afonso Delellis, negotiations at the Regional Labor Office were a veritable bureaucratic ritual, but, on the occasion of the “Strike of the 700,000”, it broke down when “the employers sat down at the table and had a surprise: instead of finding the directors of the labor union, they faced the representatives of the General Workers Command (CGT).”²⁵ The interviewee was certainly mistaken, because the organisation that was taking part in negotiations at the TRT (not the DRT) was the National Confederation of Industry Workers (CNTI). In any case, there was sizable astonishment among the industrialists at that entity’s presence at the negotiating table, which caused them to be extremely forceful in their dealings. It was in the context of this extraordinary movement that the CNTI, led by PCB and PTB activists representing 17 professional groups and dozens of catego-

 Unfortunately, this case was the only one that I did not find in the TRT’s archives, but the press and other disputes gave it ample coverage.  Larissa Corrêa, A tessitura dos direitos, 149.

5 The Act of Judging: Restrictions and Possibilities

155

ries, was responsible for holding a massive inter-union assembly at the São José Cinema, in the São Paulo district of Belém. Among other things, they decided to commit to a unified struggle “at one and the same time for identical conditions”: a 100 percent increase, salary reviews every four months, equal pay for people hired after the base date, the elimination of the percentage clause – issues that had mobilized judges over the course of those months and were already part of the history of the workers’ struggles, as we have seen in the previous chapter.²⁶ The unification of several categories in a single dispute was a bold demand, which had been gaining ground and calling into question the very raison d’être of the Labor Courts, as it was part of the corporatist system, which was based – it is worth repeating – on the fragmentation of negotiations with trade unions, who held the monopoly on representation at the municipal level. Thus, allowing the CNTI to take part in the dispute was a subversion of that system of representation of interests, making the vertical character of the Confederation horizontal. As we have seen in American diplomacy, if this had happened, it would have created an “excellent opportunity for the eruption of at least one [general] strike per year.”²⁷ However, led by FIESP, the employers would only agree to negotiate with each category individually, “in the old ways of the past, in a tedious effort to reach different and diverse agreements and conditions,” as a union leader shrewdly observed.²⁸ As for the DRT, where union leaders moved about “at will” – according to the president of FIESP – it allowed the consolidation organized by the CNTI, as did the prosecutor Roberto Puech. Once the strike had begun, the TRT agreed to hear the CNTI’s request for consolidation. Unfortunately, by four votes to three, it remained loyal to the corporatist tradition, adhering not to Decree nº 9.070, but to the already mentioned article nº 857 of the CLT, which was much more restrictive about the institutional arc of worker representation in disputes. The court therefore considered that the Confederation, as the highest body, “did not have the authority to establish local collective bargaining.”²⁹ US diplomats noted that anti-unification forces “put all

 For an excellent analysis of the strike, see Murilo Leal, A reinvenção da classe trabalhadora (1953 – 1964) (Campinas: Editora da Unicamp, 2011).  Fernando Teixeira da Silva and Antonio Luigi Negro, “Trabalhadores, sindicatos e política.” In História do Brasil Republicano, edited by Jorge Ferreira and Lucília de Almeida Neves Delgado (Rio de Janeiro: Civilização Brasileira, 2003), vol. 3, 83. The study of the diplomatic documents from the United States was done exclusively by Antonio Negro.  TRT2, Processo 356, 1963.  TRT, Processo 308, 1963. In this same case, referring to the “Strike of the 700,000,” the JudgeRapporteur pointed out that “with regard to the objectives of the strike, it may have been for so-

156

5 The Act of Judging: Restrictions and Possibilities

the pressure available on the TRT,” which was “susceptible to external influences.”³⁰ However, the vote, which was held under strong pressure from workers at the doors of the courthouse,³¹ was very close, and union leaders expressed their satisfaction with the outcome. The small difference fueled their hopes that the judges might vote in favor of the CNTI’s interests in other cases.³² As we have seen in the previous chapter, November was a pivotal month for the court’s judgments – previously heavily criticized by the union leaders³³ – and they strongly tended to favor of the demands of the “Strike of the 700,000”. What had not been possible to achieve in a single case involving several categories, as the strikers wanted, was somehow reached piecemeal, in a patient effort to make changes in the act of judging, when new arguments were tried in the confrontation with employers.

VI Thus, despite the importance of normative power and the benefits of the intervention of the Labor Courts, it is misleading to believe that the workers and their organizations were just waiting passively for the courts to solve their demands. Therefore, the next chapter will be dedicated to analyzing the impact of strikes on the proceedings and results of collective disputes.

cial and political purposes of a totalitarian nature. But there is no proof of this in the records. This issue, which is of great social interest, could be assessed in a criminal case of its own.”  Silva and Negro, “Trabalhadores, sindicatos e política,” 83 – 84.  See Larissa R. Correa, “A ‘greve dos 700 mil’: negociações e conflitos na Justiça do Trabalho. São Paulo, 1963.” História Social, Campinas 14– 15 (2008).  Kenneth Paul Erickson. Sindicalismo no processo político no Brasil (São Paulo: Brasiliense, 1979), 182.  Correa, “A ‘greve dos 700 mil’.”

6 The “Mystique of Strikes” and the “Sovereignty of the Courts” Nowadays, strikes are an art, a streamlined procedure. Jorge Miglioli¹ If we go to the Labor Courts and don’t go on strike, the dispute will molder on the judiciary’s back shelf. Osmar Venâncio de Melo²

I During the Constituent Assembly of 1946, following the demise of Getúlio Vargas’s Estado Novo dictatorship, former Labor Minister Agamemnon Magalhães (1934– 1937) and Federal Deputy João Café Filho (Partido Republicano Progressista; Republican Progressive Party) engaged in a curious debate on the right to strike. Magalhães wanted to “make it very clear” that, when it came to that right, “the government itself is often even led to advise [going on strike] to overcome the employers’ resistance.” He then offered dangerous testimony: “As Minister of Labor, I did it myself to overcome that resistance.” Café Filho was astounded: “Coming from a former Minister of State, that is serious.” Agamemnon Magalhães not only confirmed his admission but elaborated on it in very precise terms. It is worth noting how he viewed the relationship between the strike law and the Labor Courts: It is serious, but I repeat that I did it, and I would do it again if needs be. The social order is so precariously regulated, given the resilience of businesses and economic values, that, in order to defend that order, the government itself often has to protect, encourage and direct the exercise of that right… If the courts should maintain any interpretation against that right, the social issue is much more transcendent… The Labor Courts cannot establish fixed norms: they must act in accordance with the seriousness and justice of the conflict.³

 Jorge Miglioli. Como são feitas as greves no Brasil? (Rio de Janeiro: Civilização Brasileira, 1963), 47.  TRT2, Processo nº 282, 1963.  Diário da Assembleia Constituinte, 19th May 1946, apud Direito de greve, edited by Leyla Castelo Branco Rangel et al. (Brasília: Senado Federal/Serviço de informação Legislativa, 1964), 82– 85 (emphasis mine). https://doi.org/10.1515/9783110638844-012

158

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

Future research may confirm the veracity of that admission by the former minister and interventor (appointed governor) of Pernambuco during the Estado Novo. It is interesting here to underscore how he formulated the question about the interference of the Labor Courts in the right to strike. According to him, those tribunals were not governed by “fixed norms,” but they had to be aware of the “social question” that transcended it. The debate, therefore, was confined to the problem of the freedom to strike and the State’s power to restrain it, or, as Magalhães preferred, even to foster it to force inflexible employers to accede to the workers’ demands. Between the Constitution of 1946 and the civilian-military coup of 1964, there was a long and fierce legal quid pro quo on this issue.⁴ The Labor Courts were at the heart of the controversy, given that their origins were indelibly marked by the institute of conciliation and arbitration of collective conflicts, and their raison d’être was to get ahead of those disputes. The compatibility between industrial action and the normative powers of the Labor Courts caused a prolonged controversy. How did they deal with the “strike problem” in the 15 months prior to the coup? Had they managed and wanted to ally the right to strike with normative power? It was on their shoulders, after all, that the lawmakers had placed the legal responsibility for settling any work stoppage. It is also necessary to investigate how workers, employers and their respective organizations acted within the legal maze that was created around industrial action. Therefore, it is key to present a brief history of the jumble of laws that regulated the subject.

II Very succinctly, the Federal Constitution of 1946 stated: “The right to strike is recognized, the exercise of which will be regulated by law” (emphasis mine). It therefore recognized a right denied by several prior legal norms. However, those few words, considered by the jurist Pontes de Miranda to be “the result of the victory of the allied peoples,”⁵ were enough to spark an enormous controversy in juridical, political and union circles. Which laws could regulate that right? Would the

 The most complete and pertinent study of such debates in the 1946 Constituent Assembly is that by Andrei Felipe Campanini, Entre usos e abusos do direito de greve: Assembleia Constituinte de 1946 e paralisação do trabalho. Thesis (masters in History) – IFCH-Unicamp, Campinas, 2015.  Pontes de Miranda, Comentários à Constituição de 1946 (São Paulo: Max Limonad, 1993), vol. 5, 89.

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

159

legislation enacted prior to the new Constitution still be valid, or should other legal norms address the issue? The latter did not exist, even though their creation had long been demanded, but others that preceded the Constitution of 1946 merit a quick review, as many of their terms were in the middle of the path of that constitutional determination.⁶ The Constitution of 1934 was silent on the matter. However, amid the strikes taking place in the context of the country’s return to democracy, the mobilization of the “people’s front” led by the Aliança Nacional Libertadora (National Liberating Alliance; ALN) and the Communist revolts of November 1935, a brutal government crackdown put an end to that constitutional silence.⁷ The National Security Law (better known as the “Monster Law”) of April 1935 determined that it was a “crime against the social order” to “instigate or organize the paralysation of public services or the supply of the populace” and “induce employers or employees to cease or stop work for reasons extraneous to its inherent conditions.” ⁸ Because it was dubious and unclear, giving scope for interpretations that were different and opposite to the “intentions of the lawmakers,” the final section, emphasized above, was removed from Decree No. 431, of 1938, making the law even more inflexible.⁹ It was no wonder that, in the accurate assessment of Luiz Werneck Vianna, the Estado Novo began for the workers in 1935.¹⁰ The Constitution granted in 1937, in turn, determined that any attempt to stop work was an “antisocial measure,” included in the list of crimes “against the structure of institutions, the security of the State and of citizens,” being actionable in the Military Court or the Public Security Court.¹¹ To further strengthen the siege on workers in those years of the Estado Novo dictatorship, the Penal Code of 1940 called strikes “crimes against the organization of labor,” an offense punishable by imprisonment.¹²

 For a more detailed view of the law on the “right to strike,” see Alisson Droppa, “Tempos de mudanças: a lei de greve e suas implicações nos movimentos paredistas”. Porto Alegre, 2012 (typewritten text).  See capítulo 1.  Law 38, of 4 April 1935 (emphasis mine) – http://www2.camara.leg.br/ legin/fed/lei/1930 – 1939/lei-38 – 4-abril-1935 – 397878-republicacao-77367-pl.html  Geraldo Bezerra de Menezes, Dissídios coletivos do trabalho e direito de greve (Rio de Janeiro: Borsoi, 1957), 129.  Luiz Werneck Vianna. Liberalismo e sindicato no Brasil (Rio de Janeiro: Paz e Terra, 1976.)  CONSTITUIÇÃO dos Estados Unidos do Brasil, 10th November 1937, arts. 139 and 166, http:// www.planalto.gov.br/ccivil_03/constituicao/constituicao37.htm.  Menezes, Dissídios coletivos, 130 – 131, 220 – 222.

160

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

The Labor Courts were created by a decree-law in 1939 to settle “conflicts arising from relations between employees and employers, which are regulated in social legislation,” as its opening article hastened to establish. This meant that any collective work stoppage “without the prior authorization of the competent court” would be punished with six months’ suspension or firing, loss of professional representation for a period of two to five years, fines and cancellation of the union’s registration. For those “outside the [professional] class” who organized a strike, the penalty was six months to three years in jail, and foreigners would be deported.¹³ In 1943, the Consolidation of Labor Laws (CLT) left no doubt as to the place of the Labor Courts, reiterating their normative powers and the same penalties for industrial action without judicial authorization.¹⁴ Amid so many other legal norms, those which regulated the operations of the Courts Justice largely restricted the outbreak of strikes. On one hand, they left the possibility of striking open, provided that the stoppage was authorized by the Labor Courts. On the other, the laws did not specify under what conditions the courts could authorize such action. That is, there were no legal provisions on the right to strike. The liberalizing winds that blew during the post-war period seemed to be conducive to more flexible and favorable laws regarding mass industrial action. At the Inter-American Conference on Problems of War and Peace, held in Chapultepec, Mexico, from February 21 to 8th March, 1946, the nations of the Americas decided in favor of recognizing the right to strike.¹⁵ At the same time, since the end of World War II, an unprecedented wave of strikes had broken out in several Brazilian cities, driven by the post-war democratic climate and the explosion of social and political energy pent up during the Estado Novo regime. However, the Dutra administration did not wait for the Constituent Assembly to define the right to strike, perhaps intuiting that the lawmakers would hew closely to the constitutions of several other countries that granted it without serious constitutional restrictions. Thus, just days after the Chapultepec Conference, Decree-Law No. 9,070 was born, an edict that caused jurists and judges to consume a great deal of ink for the next 20 or so years.

 Decree-Law 1.237, of 2nd May 1939, arts. 81 to 84 – http://www2.camara.leg.br/legin/fed/ declei/1930 – 1939/Decree-Law-1237– 2-maio-1939 – 349344-publicacaooriginal-1-pe.html.  Decree-Law 5.452, of 1st May 1943. Articles 643 and 723 to 725.  There is disagreement as to whether Brazil was a signatory to the recommendation. See Rangel, Direito de greve, 76.

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

161

III The decree is highly detailed, including 16 articles. In the first, it determines that collective disputes between employers and employees “will be obligatorily subjected to prior conciliation or a decision by the Labor Courts.” Tolerance of work stoppages was very limited, dividing professional activities into “ancillary” and “essential.” It banned any possibility of strikes in the latter category, which covered a wide range of services and economic areas. It is worthwhile listing them: water services, energy, energy sources, lighting, gas, sewage, communications, transport, loading and unloading; establishments that sold basic necessities; slaughterhouses, farming and livestock husbandry; schools, banks, pharmacies, hospitals and funeral services, as well as “basic industries or those essential to national defense.” Needless to say, “ancillary” activities were all those not categorized as essential, but the Ministry of Labor had the authority to include other sectors in that vague classification. As the Constituent Assemblyman Hermes Lima, of the União Democrática Nacional (National Democratic Union; UDN), sardonically remarked, the minister reserved the right to strike “to manufacturers of popsicles and the like. But if that minister happens to enjoy popsicles, he can declare that industry to be of national interest and, therefore, declare a strike in progress to be illegal.”¹⁶ One of the most important determinations of the decree, which, as we shall see, opened an important loophole that the workers came to exploit, was the one concerning the imminence of a strike, that is, any mobilization “capable of determining a collective work stoppage.” In such a situation, the parties or their trade unions should notify the administrative authorities (National Labor Department or Regional Labor Offices), giving prior notice of the reasons for the dispute. The time factor was essential and will therefore receive the attention it merits in this chapter. The proceedings had to be very quick. In those bodies, conciliation was attempted first; when an agreement was reached, it was sent to the TRTs for homologation. If the dispute persisted, the case would be referred immediately to the courts, whose deadline was 20 working days if the litigants were involved in essential activities. Regarding ancillary services, the law permitted strikes, but only after filing a dispute, never before, and the category should be subject to the Court’s judgment, including “for the effects of lost wages.” If the conciliation and decision-making procedures and deadlines were not followed, or there were strikes in essential sectors, such acts would be considered “serious misconduct,” authorizing the termination of the employment contract.

 Diário da Assembleia Constituinte, 29th June 1946, apud Rangel, Direito de greve, 62.

162

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

To make it even harder for a strike to go forward, the law would only allow such action if the decision was made “by all or the majority of the workers of one of several companies.” Compared with previous legal provisions, Decree No. 9,070 recognized the right to strike, at least in part, although it invested heavily in regulating the way that right was exercised. If the law had been strictly observed by the workers and rigorously enforced by the courts, strikes would have been virtually eliminated in Brazil. However, that detailed and restrictive law contrasted with the decision that the Constituent Assembly made a few months after the presidential edict. It is worth reiterating the terms of article 158, which takes up less than one line of the Constitution: “The right to strike is recognized, the exercise of which shall be regulated by law.” Its approval by the Constituent Assembly does not express an irrepressible desire of deputies and senators to approve the right to strike, although none of them opposed recognizing it in the Constitution of 1946. The debates within the Constitutional Committee dealing with the matter, as well as in plenary sessions, support Deputy Adroaldo Mesquita, of the Partido Social Democrático (Social Democratic Party; PSD), who ironically stated: “anybody who opened their mouth to defend the right to strike would break down an open door.”¹⁷ Some Constituent assemblymen, mainly from the Communist Party of Brazil (PCB) and some members of the UDN, wanted to delete the clause “the exercise of which shall be regulated by law” and establish the unrestricted right to strike. Nevertheless, in the end, the argument espoused by many assemblymen prevailed that ordinary legislators should regulate that right. Communist deputy João Amazonas contributed to this by giving up on the amendment his party had backed, which simply recognized the right to strike, and going on to vote for the proposal that resulted in the final draft of article 158 of the Federal Constitution. In many of the interventions made in the course of the debates, the deputies saw the Labor Courts as a guarantee that the right to strike would not lead to the “abuse of strikes,” as Deputy Eloy Rocha’s argument aptly summarizes: “Where the Labor Courts have normative authority, that is, they can impose new working conditions on litigants and extend them to other people, strikes lose much of their reason for being.”¹⁸ What jurist Carreiro de Oliveira called “an error of legislative method” took hold, although there was certainly something much more complex involved, as it

 Diário da Assembleia Constituinte, 29th June 1946, apud Rangel, Direito de greve, 74.  Ibid., 96.

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

163

was eminently political.¹⁹ The problem gravitated for years on end around whether the laws enacted prior to the Constitution were still in effect, particularly the Penal Code of 1940 and Decree-Law No. 9,070. This is because, although several bills were drafted after the 1946 Constitution, Congress never regulated that constitutional provision.²⁰ Without the “correctives” viewed as necessary in 1946, what regulatory value would those laws of the past, elaborated before the Constitution, actually have? On one hand, a recurring allegation held that, in the absence of legislation regulating the matter after the Constitution was enacted, the earlier ordinary laws would remain in effect and would not allow the unrestricted right to strike. On the other hand, some jurists insisted that Decree No. 9,070 was doubly unconstitutional. First, it had been drafted under the Constitution of 1937, which did not recognize the right to strike. Secondly, as an ordinary law, it could not supersede the Constitution of 1946.²¹ Another argument in defense of this thesis was that Article 158 provided for the regulation of strikes but did not prohibit them. The renowned and acclaimed jurist Cesarino Junior was categorical in his clear formulation of the problem: “prohibiting is the exact opposite of recognizing and obviously more than regulating [the exercise of the right to strike].”²² The legal imbroglio surrounding the 1946 decree merited “prolonged debates in the courts, still being continued in studies of numerous jurists, some affirming their total revocation, others their partial revocation, and still others who pretend that they are perfect as they are.”²³ This last understanding prevailed in repeated decisions of the Federal Supreme Court (STF), which considered the provisions of the Criminal Code and Decree-Law No. 9,070 to be compatible with Article 158 of the Federal Constitution.²⁴

 Carreiro de Oliveira, O direito de greve, c.l.: n.ed., 1958, 183 – 192.  For the full text of the bills, see Rangel, Direito de greve, pp. 135 – 220.  Oliveira, O direito de greve, 173.  Cesarino Júnior, Direito social brasileiro (Rio de Janeiro: Freitas Bastos, 1953), 24. See also Aloysio da Costa Chaves, Direito de greve (Belém: Imprensa Universitária do Pará, 1963), 37– 38.  Luiz Roberto de R. Puech, Direito individual e coletivo do trabalho (São Paulo: Revista dos Tribunais, 1960), 377. The Communist Party members in the Constituent Assembly attempted to annul the decree but were defeated by the opinion of UDN member Gabriel Passos, who argued that, although the decree was harmful and even unconstitutional in light of the 1937 Constitution, the Constituent Assembly was not there to make laws but merely to approve a new Constitution. COMISSÃO de Estudos das Indicações em relação à Indicação número 29, de 1946. S. C., April 9, 1946, apud Rangel, Direito de greve, 35 – 40.  Alisson Droppa situates the moment the Supreme Court consolidated that understanding in 1953. Droppa, “Tempos de mudanças”.

164

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

But, instead of resolving such legal confusion once and for all, the STF’s decision led the courts and other authorities to a seemingly insoluble impasse: how could the Labor Courts, which were supposed to resolve disputes within their remit, guarantee the constitutional right to strike and, at the same time, limit it on the basis of Decree No. 9,070, which, after all, came to regulate that lacunar article of the Constitution? Skeptical and somewhat confused in the formulation of his argument, the jurist Carreiro de Oliveira stated that “it would be useless to try to reconcile these two absolutely irreconcilable situations: the arbitrary exercise of the workers’ right and the subjection of collective conflicts to the jurisprudence of the Labor Courts.”²⁵ According to Geraldo Bezerra de Menezes, former president of the Superior Labor Court, there was no contradiction, since the unrestricted right to strike was equivalent to the demoralization of the Labor Courts: The exercise of the right to strike, which is recognized by the Constitution (art. 158), would never have been regulated for the common good, because if it were allowed or encouraged as a normal (and not extreme) measure for [achieving] the demands of the working classes, it would, in itself, end up destroying the legitimacy of any restrictions that the State intended to oppose.

Aware that those restrictions had to be set by the Labor Courts, he concluded, using Shakespearean language, in a less tortuous way: That is the question… The constitutional lawmakers of 1946 found a good solution; because, although the right to strike was recognized, they did not fail to confirm the power or normative content of collective judgments… precisely because it is not incompatible with the modern democratic regime. ²⁶

Not satisfied with that solution, which gave the Labor Courts the power to limit the right to strike, the prosecutor for the Labor Courts of São Paulo, Roberto Puech, was, in my view, the one who formulated the problem in the most precise terms, albeit somewhat retrospectively: Under the Constitution of 1946, the normative powers of the Labor Courts (maintained along corporative lines) and the right to strike were placed side by side… Although both systems were incompatible, they managed to survive, giving rise to curious situations… One of

 Oliveira, O direito de greve, 180.  Menezes, Dissídios coletivos, 64– 65 and 89 (emphasis mine).

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

165

those situations included going on strike, not precisely against the employers, but against the Labor Courts, on which, after all, the solution depended. ²⁷

Therefore, for the prosecutor, the right to strike and normative powers were two incompatible legal institutes, but they managed to coexist. Furthermore, the main target of some strikes had shifted from the employers to the courts themselves, as they had the authority to engage in compulsory arbitration of conflicts that were not resolved through conciliation and, as a result, hand down decisions about wages and working conditions. Based on his long and daily experience behind the scenes at the Labor Courts, Puech added these further highly apt observations: Decree-Law No. 9,070 was “used or violated according to convenience.” Given the need for a decision regarding industrial action, he posed this question: “how can the Court play this role in collective disputes if the majority randomly upholds or rejects the subsistence of decree-law No. 9,070?” Whether the law was followed or not therefore depended on the magistrates present at the judgment of a given strike. The most sensitive point of this matter, however, lies in the following extract: political interests often act within or around strike movements. Depending on the moment or political convenience at election time, strikes seem useful or embarrassing to some or others. And the result has been this great variation of attitudes toward strikes, further increasing the confusion and often hindering the thankless mission of the Judiciary.²⁸

Therefore, according to the prosecutor, the Labor Courts changed their judgments in accordance with political considerations, diverging from their mission of applying the law on the basis of strictly legal precepts. Undoubtedly, we must consider the place where Roberto Puech stated his assessment on the subject, that is, the Ministry of Labor Prosecutor’s Office, which was responsible for ensuring the legality of the proceedings and disputes through opinions addressed to the courts. In any case, I have inflated the text of this book with quotations from his work because they all serve as an excellent guide for research and will be taken up again throughout this chapter, also emphasizing the “notorious” Decree No. 9,070.

 Luiz Roberto de R. Puech, Na vivência do direito social (São Paulo: Resenha Universitária, 1975), 96 (emphasis mine).  Ibid., Direito individual, 382– 384.

166

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

IV The period between January 1963 and March 1964 is, for various reasons, unique when dealing with the problem. At that juncture, the employers and several conservative sectors put tremendous pressure on the Labor Courts to faithfully carry out their mandate to end the “strike industry” that was plaguing the country, backed by a profligate government that was interested in “chaos,” as the various news bulletins published by the Federation of Industries of the State of São Paulo (FIESP) insisted.²⁹ In early 1964, during a coffee workers’ strike, the employers demanded that the TRT declare the industrial action illegal. According to them, the union would never advise its members to seek the course of justice; “it will advise them to go on strike, because that is their industry, disorder and tumult their law, the connivance of government authorities the only justice they know!” They placed their hopes in the firm action of the Labor Courts: “the non-compliance of this honorable court with the legality or not of the strike will immediately provoke new conflict.”³⁰ In fact, the employers put tremendous pressure on the TRT to follow the strike law to the letter. In the book Como são feitas as greves no Brasil? (How are Strikes Conducted in Brazil?), Jorge Miglioli observed that, despite being unconstitutional, DecreeLaw No. 9,070 “is still applied to characterize a strike as legal or illegal.”³¹ The well-known decree was generally quoted by the employers in collective disputes accompanied or preceded by industrial action. There were employers who demanded that a strike be declared illegal “for all legal purposes, including for the effect, if applicable, of annotation in the employees’ curriculum.”³² In other words, they claimed that it was up to the Labor Courts to institutionalize the employers’ “black lists.” One could ask how the magistrates responded to that pressure and what their positions were regarding strikes. In its judgments, the TRT did not fail to present conflicting arguments on the compatibility of the right to strike and the normative power of the Labor Court, as well as the boundaries between them. The TRT expressed itself in terms very similar to the debates presented earlier, which made going on strike a legal act; that is, subordinated to the Judiciary. In a judgment issued in 1963, the Judge-Rapporteur, Roberto Barreto Prado, was very clear about the boundaries between industrial action and the normative power of the Labor Court. It is worthwhile following his argument:    

See chapter 4. TRT2, Processo 14, 1964. Miglioli, Como são feitas as greves, 86. TRT2, Processo 371, 1963.

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

167

The right to strike is not an individual and unconditional right, but rather a process of collectively demanding new working conditions of a relative nature, only being understood and justified by legitimate objectives. The mystique of the strike does not and cannot have a greater basis, especially nowadays, when labor legislation is so widespread. In the present case, the objectives of the work stoppage were achieved, no longer justifying the continuation of the movement. The parties cannot impose the wage increases they want, but they must bow to the sovereignty of the courts. It is an undeniable requirement of the rule of law in society.³³

The rapporteur put collective industrial action in opposition with the expansion of the law on the mediation of such conflicts; the continuation of the strike with the court decision that had to be obeyed; the “mystique of strikes” with the “sovereignty of the Courts.” In another case, Mário Guimarães, a Supreme Court justice or minister, was even more emphatic: the matter at hand is the case of workers who, superseding the Labor Courts and before they manifest themselves, are attempting to carry out justice by their own hands. They cannot be worthy of protection. To satisfy the employees’ demands precisely, the Brazilian nation, at the expense of everyone’s contribution, maintains duly mandated Labor Courts.³⁴

In this statement, industrial action taken before the Labor Courts’ intervention is equivalent to a private instrument, to which the sovereignty of public power is opposed. In 1963, a record-breaking year for strikes and days of industrial action, the magistrates’ positions sent a clear message about the Labor Courts’ mission of preventing work stoppages by stating their raison d’être. In a case involving a river workers’ strike in the Port of Paranaguá, in the state of Paraná, the rapporteur of the ruling, Fernando Coutinho, expressed his opposition to “abusive strikes.” His powerful argument deserves to be read: We are not mechanical interpreters of the law. We are not oblivious to the real needs of those who go to court. We understand our obligation, to proclaim that in principle the strike does not generate rights for anyone. The fact that a certain category declares itself to be on strike does not necessarily mean that there is a demand to be met. It should be noted that such a powerful and sometimes effective weapon, an extreme remedy for an unbearable situation, cannot and should not be used with such alarming frequency when the situation and the facts do not always require it, otherwise it will become mere circus spectacle, or we will go back to the 1930s. We do not want the working and productive class to use strikes as

 TRT2, Processo 140, 1963 [emphasis mine].  TRT2, Processo 98, 1963 (emphasis mine). In the words of Judge Roberto Prado, “Article 9 of Decree-Law 9,070 of 1946 provides that, on a regular basis, the parties shall be subject to the judgment of the Court, both for the purposes of lost wages and for payment during the period of the strike.” TRT2, Processo 233, 1963.

168

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

a home remedy and panacea for all ills, because if they cry “strike” too often, they will have the same results as those in La Fontaine’s famous fable.³⁵

The judge may have been referring to Aesop’s fable, “The Boy who Cried Wolf,” but it is very hard to determine what he meant when he referred to “going back to the 1930s.” Did he believe that the abuse of the right to strike led to the Estado Novo dictatorship, sounding an alert about the dangers of a coup, presaging March 1964? In any case, yet again, strikes are represented as a private sphere of action (“home remedy”), albeit legitimate as a last resort. At the same time, the president of TRT/SP, Décio Toledo Leite, referred to the “right to strike” as follows: “It is the practice of almost four years of this presidency to avoid strikes because, although they are a constitutional right of the worker, in this country they have become a routine occurrence that does serious damage to the national economy.” In all these statements, therefore, what was at stake was the “routine” character, the “alarming frequency” and “mystique” of strikes, giving rise to rights. Such indignation can also be read between the lines in a confession that the Labor Courts – even when “duly equipped” – had failed to impose themselves on the real spread of industrial action movements. However, the problem resided less in the legal constraints of the courts and more in the political context. At a time in the nation’s political life when the Goulart administration was held responsible for the strikes, the president of the TRT, Décio Leite, also took the opportunity to needle the Executive branch, demarcating the boundaries between the Executive and the Judiciary: The abuse of the Right to Strike cannot be accepted by any authority in the country, although some of those authorities are making the workers a political instrument in regard to strikes…. When the nation’s largest port and the entire city of Santos are paralyzed… those authorities are silent, with the sole aim of discrediting one single judicial decision. It is an unfortunate country that immediately does away with its judiciary.

The judge must have been referring to the well-known strike in solidarity with the male nurses of the Santos Santa Casa charity hospital, held in September 1963, which nearly shut the city down. The movement even included gravediggers, workers engaged in an “essential” activity who refused to bury the dead. The work stoppage ratcheted up tensions to such a degree that the top military brass warned Goulart that they would show zero tolerance for the strike. General Pery Bevilacqua, the commander of the Second Army, declared that he was will-

 TRT2, Processo 91, 1963.

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

169

ing to intervene militarily in Santos. Faced with further pressure, originating primarily from the governor of São Paulo state, coup-supporter Ademar de Barros, President Goulart sent the Labor Minister, Amauri Silva, who, according to the president of the TRT, allegedly went on to quash a judicial decision. Two days after the strike ended under military pressure, the Supreme Court decreed any strike illegal if it was held without exhausting all appeals to the Labor Courts.³⁶ That measure was nothing more than attempt to enforce legal norms that already regulated industrial action. However, the statements presented thus far point to the existence of that which was intended to be extirpated. Events were much more nuanced than the laws and the judges’ decisions would have us believe. Going on strike, as was aptly expressed in one of the epigraphs in this chapter, was an art and a highly streamlined procedure. This is because collective disputes between workers and employers were heavily regulated, and in a few years both sides had learned to play the game in the legal and juridical arena. Therefore, we must look beyond what the magistrates solemnly declared in their judgments.

V If we look carefully at the jurisprudence, we will see that Decree-Law No. 9,070 imposed many restrictions and sacrifices on the workers. A significant number of employers filed individual disputes with the Labor Courts and appeals in to TST and STF to confront their employees with the provisions of the decree. They alleged “serious misconduct” to justify dismissal in situations involving incitement to or the outbreak of a strike before the Labor Courts had issued a decision on the dispute; industrial action taken without regard for conciliatory procedures and deadlines; and active participation in an “illegal strike,” among other aspects. The courts accepted many of the arguments and lawsuits filed by the employers in individual disputes, as well as rejecting some on the basis of Decree No. 9,070 itself, which in its own way, recognized the right to strike.³⁷ Nonetheless, it is striking for those who read the records of one collective dispute after another that the literature on strikes has hardly touched upon the number of times the judges ignored or rejected the insistent plea of employers to declare several stoppages illegal under Decree-Law No. 9,070. Without ex Fernando Teixeira da Silva, Silva, A carga e a culpa. Os operários das docas de Santos: direitos e cultura de solidariedade, 1937 – 1968 (São Paulo: Hucitec; Santos: Prefeitura Municipal de Santos, 1995), 182– 184.  There is copious jurisprudence in Rangel, Direito de greve, 225 – 303.

170

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

ception, in the 15-month period in question, the TRT never declared a strike illegal. The court stated that this was beyond its purview and delegated it to the lower courts, that is, the Conciliation and Judgment Boards, which were supposed to analyze individual disputes on a case by case basis.³⁸ When the explosive “Strike of the 700,000” paralyzed the city of São Paulo between late October and early November 1963, the employers demanded that the Labor Courts declare it illegal. The judge-rapporteur for a case in which the employees of the Companhia Nitro Química Brasileira were involved in that movement emphatically defended the rights of that powerful company’s workers. His words merit being quoted here: with regard to the objectives of the strike, it may have social and political aims of a totalitarian nature. But there is no proof of this in the records. This issue, which is of great social interest, could be assessed in a criminal case of its own. The Labor Courts, given the absolute precariousness of the existing evidence, can do nothing. They can only proclaim that in this movement, which has had nationwide repercussions, the workers who did not participate in its organization were not responsible for it.³⁹

However, the rapporteur took a harder line with the movement’s leaders: “In my understanding, the strike was illegal,” recognizing the legal responsibility of its leaders, without adding further explanations. However, he was outvoted, as three judges decided that it was not up to the court to rule on the issue and two others understood that “the strike was perfectly legal”. The company appealed and the Superior Labor Court (TST) overturned the TRT’s decision. According to the TST’s ruling, “in this case, the strike was manifestly illegal, and the Labor Court is undoubtedly responsible for declaring it illegal.” The decision was based precisely on “the deadlines and terms of DecreeLaw No. 9,070.”⁴⁰ In any event, despite explaining that “this High Court has repeatedly [issued this decision],” this outcome is the only exception in the total of

 There is copious jurisprudence in Ibid., 225 – 303. Alisson Droppa’s study of the TRT of the Fourth Region (the state of Rio Grande do Sul) shows that the TST ministers assessed whether a worker involved in the proceedings had participated actively in a strike and was aware that he had engaged in an illegal movement. Even in the latter case, those who were not members of the trade union’s leadership were acquitted, free of dismissals and other penalties as they were not required to know the application of a law. Out of 128 appeals filed with the TST between 1957 and 1964, the author found that half of the workers involved in the strike kept their jobs. Alisson Droppa, Direitos trabalhistas: legislação, Justiça do Trabalho e trabalhadores no Rio Grande do Sul, 1958 – 1964. Dissertation (PhD in History) – PPGH/UNICAMP, Campinas, 2015, 97.  TRT2, Processo 308, 1963.  TRT2, Processo 308, 1963 (emphasis mine).

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

171

286 cases investigated, although the decision was applied to a major conflict, which should not be overlooked. Systematic studies of the application of the decree are still lacking, but once again we can turn to prosecutor Roberto Puech, for whom the decree is derogated by usual and customary practice, without the legal structure seeing the possibility of using the means to enforce it… Strikes erupt in essential sectors, where they are prohibited by Decree-Law No. 9,070 – which has not prevented workers from being victorious.⁴¹

Following that same line of reasoning, referring to the workers’ movement on the eve of the coup, union leader Luiz Tenório de Lima observed, perhaps with some exaggeration, that “We were already winning the right to strike… Although there were almost 100 draft regulations on the right to strike, none had been approved because there was no climate [for it] and the trade union movement rejected them.”⁴² In fact, contradicting the legal principles and the “duly equipped” Labor Courts, of the total of 268 collective disputes, between January 1963 and March 1964, 93 (35 percent) showed that industrial action had taken place. There are reasons to believe that this number was actually greater, because the case records do not always tell us whether, in fact, a strike took place in the course of the judicial proceedings. In any case, that percentage must not be underestimated, since the Labor Courts and the legislation regulating the right to strike were created precisely to avoid or even prohibit industrial action. Therefore, when the military decided to crush high-profile strikes in the second half of 1963, João Goulart began to call on the workers to avoid provoking the Armed Forces and channel their dissatisfaction towards the Labor Courts.⁴³ The industrial sector recorded the highest number of strikes (73 percent), followed by retail (7.5 percent), services (6 percent) and agriculture (0.5 percent). By further refining the percentages per economic activity, we can see that the chemical and pharmaceutical sector led the ranking of cases in which there were strikes (22.5 percent), followed by construction and furniture (13 percent), metal working, mechanics and electrical materials (7.5 percent), transport (6.5 percent), spinning, weaving and clothing (5.5 percent), food, beverages and to-

 Puech, Direito individual, 377– 8 (emphasis mine).  Luiz Tenório de Lima, Movimento sindical e luta de classes (São Paulo: Oliveira Mendes, 1998), 93.  Kenneth Paul Erickson, Sindicalismo no processo político no Brasil (São Paulo: Brasiliense, 1979), 173.

172

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

bacco (8.5 percent), ports and storage (7.5 percent); the other branches, with less than five strikes reported, accounted for 27 percent of the total. We can safely state that 26 percent of the stoppages occurred in the so-called essential activities, as defined by Decree No. 9,070. This number would certainly be greater if we included, for example, strikes in companies linked to the “sale of utilities or goods essential to the life of the population” (article 13 of the decree), which were not classified in any branch in our electronic database. It is intriguing that, of the total of 224 homologations, that is, agreements between the parties with the approval of the Labor Court, but without the interference of the normative power, 12 (5.6 percent) reported the occurrence of a strike. Although they represent a small percentage, their existence reveals that the so-called conciliatory procedures and deadlines were not always respected, since the law stated that a strike could only be authorized after making attempts to reach an agreement and collective bargaining in the courts. In other words, some workers were using strikes to arrive at an agreement to completely dispense with the “services” of the Labor Courts, whose only role was to ratify the final decision established by the disputing parties themselves.⁴⁴

VI The most important thing to stress about “conciliatory or decision-making processes and deadlines,” according to the decree in question, is this apt statement by Jorge Miglioli: “workers go on strike when they think it is the best time to do so, whether before, during or after arbitration.”⁴⁵ In fact, according to the normative requirements, only 37 percent of strikes could be considered legal, since they occurred exclusively during the proceedings, that is, after the disputes were judged, according to the law. Of the total number of case records showing that industrial action was involved, we have the following results: 14 percent of the strikes occurred prior to filing the dispute; 46 percent before and during the proceedings and 3 percent before, during and after. Thus, in all three situations, 63 percent of the strikes were blatantly illegal. As an employers’ representative vociferously complained: “When exercising the right to strike, the workers cannot anticipate the Labor Courts’ decisions. That right is not absolute.”⁴⁶ We can

 Elisa Paletti Pomari, “Justiça do Trabalho e poder normativo: São Paulo, 1963 – 1964”. Campinas, ago., 2011, 11 (final report for PIBIC/CNPq Scientific Initiation grant).  Miglioli, Como são feitas as greves, 49.  TRT2, Processo 133, 1963.

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

173

increase that percentage because Labor Court records rarely included strikes held after the tribunal had issued its ruling, when the workers were supposed to accept the judicial decision and go back to work. Naturally, that was not always the case. As we have seen, a TRT judge expressed his vexation about a case that had already been judged: “the objectives of the work stoppage were achieved, no longer justifying the continuation of the movement.”⁴⁷ Some professional categories went on strike prior to the settlement of the dispute, especially when the employers refused to negotiate in advance. At the assembly of the Union of Drivers of Road Vehicles and the Like of Santo André, São Caetano do Sul and São Bernardo do Campo, in São Paulo state, the workers unanimously decided to start a strike “at zero hour.” They also decided that it was up to the union to file a collective dispute the following day, even though the union’s lawyer had asked them to exhaust the legal process first, according to the law.⁴⁸ That bold move led the Judge of the District of Pitangueiras, also in that state, to “regret that in Brazil today the demands of employees are made through strikes, threats, pressures, as if the courts only existed to meet any pretensions whatsoever,” surpassing “the bounds of disrespect and contempt of court.” Outraged, he continued: “This boldness is so revolting that we prefer to remain silent, in the certainty that this worthy Court will know how to repudiate it with equanimity, but with the hauteur of its dignity.”⁴⁹ Again, the sovereignty of the courts was called on to put an end to the mystique of the strike. Therefore, downing tools first and then going to court, or appealing to the tribunal and immediately going on strike was part of the strategy to hurry and pressure judges. The attorney for the Union of Wheat, Corn and Cassava Industry Workers of Antonina, Paraná, stated in a hearing at the DRT that the workers had begun the industrial action after filing the dispute with the TRT. The regional labor officer attempted to use conciliation to calm them down but the parties refused to budge. After the strike began, the labor officer asked for the case to be fast-tracked.⁵⁰ Given that one of the employers’ strategies was delaying the proceedings as much as possible, according to the records for another case, failing to appear at the DRT’s round table for the conciliation talks was an affront to the workers. Their response could come in the form of a strike to put pressure not only on

   

TRT2, TRT2, TRT2, TRT2,

Processo Processo Processo Processo

140, 1963. 133, 1963. The same occurred in Processo nº 138/63. 164, 1963. 240, 1963.

174

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

the employers but on the Labor Courts themselves.⁵¹ Precisely in this regard, the words of Agamemnon Magalhães at the Constituent Assembly of 1946 are curious, not to say, apt, when recalling his time in the Ministry of Labor (1934 – 1937). They merit close attention: To achieve conciliation, it was not unusual to require the right to strike, which cannot be made conditional on conciliation and arbitration, because conciliation depends on the stronger party, the employer. They [the employers] seek to take all disputes to arbitration, a lengthy process in which there is a defense, in which the State intervenes, and which wears down the resistance of the proletariat – better yet, exasperates them. Many times, the State itself, which intervenes in conciliation, requires the tactic of strikes because the employers only accept or move towards conciliation when threatened. As Labor Minister, I dealt with cases in which the employers only accepted conciliation when they were told that the workers could not wait.⁵²

Of course, such bravado merits empirical testing, but it pertinently and plausibly suggests that, in practice, the institute of conciliation engendered and anticipated conflicts, with the blessing of the State. To abbreviate the proceedings, the government even went so far as to skip the conciliation procedure, as we shall soon see. According to the employers, the Labor Courts went over their heads, promoting the outbreak of strikes, with the threat of one being enough to enable the settlement of dispute to become more expeditious and favorable to the workers’ interests. In fact, the threat of industrial action was often intended to provoke ex officio bargaining to force the courts to cede to the demands in labor lawsuits, as Edinaldo Souza points out in his study of workers during the post-war period in the state of Bahia.⁵³ Fast-tracking cases involving strikes or the imminence of one was, indeed, an important stratagem that the workers employed skilfully and consistently. It was, in fact, what led the judge of the Conciliation and Judgment Board of Curitiba to write to the TRT justifying the celerity of his proceedings in light of the bank workers’ strike, which began before the dispute was filed: “I am writing from my home, on a Sunday, in order to send it with the bearer who is going to São Paulo, given the urgency of the matter.” Furthermore, he did not fail to observe that he was feeling political pressure, which, in turn led to his pressure on the court itself: “I should point out that, since the bank-workers have announced

 TRT2, Processo 284, 1963.  Diário da Assembleia Constituinte, 29th June 1946, apud Rangel, Direito de greve, 84– 85.  Edinaldo Antonio Oliveira Souza, Trabalho, política e cidadania: trabalhadores, sindicatos e luta por direitos (Bahia, 1945 – 1950). Dissertation (PhD in History) – PPGH-UFBA, Salvador, 2015, 96.

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

175

a strike, I have received a request from the State Government through the Secretaries of Labor and Security, appealing to the honorable Alternate for the hearing to be held with the utmost urgency.”⁵⁴ It was no coincidence that 28 percent of the disputes involving strikes took less than 15 days to be resolved in the courts, and in nearly half of such cases, the decision was handed down in up to 30 days. In disputes that did not involve industrial action, just 4 percent were resolved within 15 days, 11 percent in a month and three-quarters dragged on for over two months.⁵⁵ Such speed – 75 percent greater in cases involving strikes – was due to the fact that, in the case of industrial action, the TRT reduced the procedural rite, skipping attempts at conciliation at the administrative levels. As for the cases that did not involve strikes, 36 percent were not handled by the DRT, whereas those involving work stoppages rise to 42 percent. The difference is much greater when we look at those which did not go through the Regional Prosecutor’s Office: 75 percent of disputes involving strikes were not handled at that level, compared with 56 percent of cases without strikes. This unseemly haste openly contradicted Decree No. 9,070, which required a case to be heard at the administrative instance for conciliation even when a strike was imminent. This was what the prosecutor Roberto Puech set down in the agreement in which the president of the TRT welcomed the referral from the president of the Conciliation and Judgment Board, which had passed over the DRT and the Prosecutor’s Office, referring the case directly to the Court. If such a procedure was in violation of Decree No. 9,070, it was based on article 857 of the CLT which, in fact, authorized the omission of administrative instances in urgent cases. Puech considered that, “with all due respect,” it seems to us that the solution given to the point of order by the presiding judge involves a possible nullity, even if the inquisitorial principle of the collective process is recognized. The point is that, as the law requires the conciliatory administrative instance when handling the dispute on the basis of decree-law 9,070 of 1946, it [the decree] should not be disobeyed.

There was, therefore, a clear contradiction between the two legal provisions (the CLT and the “strike law”), creating a rift between the judicial and administrative instances, both rivalling in legitimacy, jurisdiction and authority, although

 TRT2, Processo 56, 1963.  Pomari, “Justiça do Trabalho”, 9.

176

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

among TRT magistrates only Wilson de Souza Campos Batalha agreed with the prosecutor’s opinion.⁵⁶ The president of the TRT, Décio Leite, addressed Roberto Puech in unflattering terms: “this presidency understands that the Judiciary is not tied to any administrative authority and understands very well that the parties have more guarantees inside this house than in any department of the Ministry of Labor.”⁵⁷ Many workers and their unions were likely to endorse the judge’s view. In several homologation cases, the prosecutor, Roberto Puech, issued repeated opinions alleging that in the event of direct agreement between the parties, the appropriate instance to approve the contract was the Ministry of Labor, without which the case should go through the courts.⁵⁸ The TRT never approved opinions of this nature, which “would diminish the independence of the Judiciary.” Furthermore, I have found cases in which workers expressly demanded that the agreement with the employers be ratified by the Labor Courts, not by the administrative instances linked to the Labor Ministry.⁵⁹ This shows that they did seem to feel more protected by the Judiciary than by the Executive branch, represented by the Ministry of Labor and its bodies embedded in judicial proceduralism. We have seen that, on the one hand, the Judiciary fulfilled its role of speeding up the judicial process in the name of social peace. On the other hand, when they became aware of the Court’s practices and opposition to the prosecutor’s zeal in relation to Decree No. 9,070, the workers either organized strikes or an-

 TRT2, Processo 242, 11963. The case records cite Batalha’s book, Instituições (volume 2, 535), in which the jurist sought to reconcile the decree and the CLT, recognizing the need for the instance of administrative conciliation.  TRT2, Processo 242, 1963 (emphasis mine).  In a number of cases, the prosecutor repeated the following opinion with few variations: “Preliminarily, it seems to me that the jurisdiction of this honorable Court does not exist until the case is pending, so it does not therefore extend to extrajudicial agreements, as these are typical collective agreements expressly subordinated to the homologation of the Ministry of Labor. In this regard, this regional prosecutor has already manifested itself repeatedly.” TRT2, Processo 245, 1963 (emphasis mine). The only judge who agreed with Puech’s thesis was Carlos Bandeira Lins. TRT2, Processo 287, 1963.  See, for example, TRT2, Processo 421, 1963. I found one exception in TRT2, Processo 282, 1963, in which the union asked the DRT to ratify the agreement, claiming that the court would be delayed because of a major procedural step. The same case records explain that, since 1957, the agreements no longer had to wait for the homologation of the Ministry of Labor, a task that was passed on to the DRTs. However, the TRT went over the heads of the administrative court and found the agreement void on procedural grounds, such as lack of secret balloting and scant participation of workers in the assembly that decided to approve the agreement with employers.

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

177

nounced their imminence and filed disputes, an effective strategy for putting pressure on employers and the Judiciary. For that very reason, in a threatening tone, the president of the rubber workers’ union of São Paulo, São Caetano do Sul and Santo André expressed his outrage at a situation that seemed to him anomalous because it contradicted the purposes of the law. He was surprised that the disputes filed were judged quickly and the judgments published without delay, while “normal negotiations are delayed, making workers take extreme measures.”⁶⁰ The message had been sent: the Labor Courts and the laws underpinning their decisions were inciting workers to strike. This was precisely what many workers were doing. The Rio Grande do Sul lawyer Victor Nunes could not have been more precise about the difference between disputes involving strikes and “normal disputes” when he declared that the strategy was to turn to Decree-Law No. 9,070, the profession [would] go into action and propose their request and say that it would go on strike if it is not resolved by a given date. That was the possible rite at that time. The advantage was that the entire conciliatory machine of the TRT sought to do its part and the case was tried before the proposed date so as not to be blamed for the delay and have to face the guilt for a stoppage of essential services… Often they had no intention of going on strike, but they had to say a strike was imminent, through a decision taken by the assembly, following all the legal criteria, and the group has to prepare effectively, because if it goes home to rest, nobody will care, pay attention, much less the boss, much less the government.⁶¹

Therefore, following legal procedures was also a way of mobilizing workers while putting pressure on employers and the courts. As a result, Decree-Law No. 9,070 was used to create or justify an atmosphere conducive to the outbreak of strikes, since the imminence of industrial action accelerated the progress of the agreement. The Labor Courts supported this view and, to expedite the procedures, based themselves on the article of the CLT, which, in turn, contradicted the decree itself, as it eliminated the administrative stage of disputes. However, a scholar familiar with the proceedings of the Labor Courts could theorize that, in the case of a strike or the imminence of one, disputes would have been filed primarily by employers or the Courts – and not by the unions – in accordance with the law. This supposition would refute my argument that

 TRT2, Processo 231, 1963.  Interview with attorney Victor Nunes, available in the Memorial da Justiça do Trabalho no Rio Grande do Sul (emphasis mine), quoted in Alisson Droppa, “Justiça do Trabalho entre a greve, o julgar e o conciliar: as conquistas dos trabalhadores em tempos de greve”. Porto Alegre, April 2014 (typewritten text, 10).

178

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

workers sought to ally strikes and disputes. However, it is noteworthy that the TRT and the Prosecutor’s Office filed just two cases out of a total of 286, although the law gave them the right to file disputes ex officio whenever industrial action was underway or imminent. Furthermore, strikes were enough to make the employers go to court, generally demanding that they be declared illegal. However, the employers were responsible for filing just 21 percent of disputes involving strikes. In contrast, 76 percent of the disputes were filed by the workers’ unions. Thus, once again, several professional categories clearly linked two stratagems considered antagonistic to assert their rights: industrial action or the threat of a strike, and legal action. In fact, a law and tribunals that, among other objectives, were intended to prevent strikes became a factor in instigating them, an aspect that has gone completely unnoticed by the specialized literature. What is more, Roberto Puech had already observed that strikes were directed not only against employers but also against the Labor Courts. This was also expressed by the employers of sawmill workers in the state of Paraná who convened an assembly to decide whether to hold a strike if their demands were not met. The indignant response of the employers’ syndicate deserves to be quoted almost in its entirety because it clearly and shrewdly sums up much of what we have been addressing so far: the fact that the meeting was convened for the day following the date of the hearing [at the Conciliation and Judgment Board], together with the threat of a strike, if the union’s demands were not met, involves a typical maneuver that is being carried out all over the country, with a certain suspicious shading, in order to coerce the interested parties and especially the courts, into submitting to the “omnipotence” of the rights of the so-called workers, as if work were the privilege and monopoly of a class, when it is the obligation and destiny of all Brazilians, again, all circumstances bear the clear stamp of supposition that is not tolerable, when the matter is in the hands of the courts to decide according to the law. The threat creates a suspicion of exemption from justice, since it is clear that, if the case has been handed over to the Labor Courts, the parties should await, without threats and calmly, the final decision of the Labor Courts. Otherwise, going on strike beforehand, for whatever reason, perfectly demonstrates the sure and positive manifestation that they do not trust [the] Judiciary to make honest and fair decisions. Moreover, the maneuver, naive for those with an eye to social realities, is simply basic, for it is not credible that the Labor Courts could be frightened by a mere “strike,” which already has all the characteristics of illegal industrial action due to the procedures used to organize it, when here, in this plenary, it was affirmed that they relied on the courts to decide the case, with the commitment not to take to the ultimate consequences a situation they are seeking… to resolve in the best way possible…⁶²

 TRT2, Processo 43, 1963 (emphasis mine).

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

179

As this lengthy digression demonstrates, the workers were able to use DecreeLaw No. 9,070, especially the article stipulating the need for official notification of “the occurrence of a dispute capable of determining collective stoppage of work, stating its reasons and the aims sought” (Article 4). The mere rumor of a strike as a means frequently used to have disputes dealt with promptly, led the representatives of Filex S/A to declare that the imminence of industrial action by workers in the rubber artifacts industry of São Paulo, Santo André and São Caetano was a curious allegation, because there is nothing like a strike [going on], and to corroborate this, it is enough to read the convening notice and the minutes to verify the absence of such an “imminent threat,” when it is certain that it was the Union that took the initiative in everything and on its own account.

Based on the documents in the case records, the employer’s ire was not unfounded. In fact, there is no record of such a threat of a strike, except from the lips of the union president, in a hearing at the DRT, in an attempt to force the referral of the case to the TRT. This is because attempts at compromise could drag on endlessly in successive roundtables when employers refused to budge.⁶³ In addition, the employers and their representatives soon caught on to the game the unions were playing with the law, seeking to get the better of them with exhortations for the courts to take courage. To say that “is not credible that the Labor Courts could be frightened by a mere ‘strike,’” sounds like a possibly ironic way of provoking the judges, leaving the statement in the conditional, since it implies that the court was easily ceding to threats of industrial action. It is intriguing, however, that sometimes the workers also wanted the exact opposite: to delay the proceedings. This was done by the Trade Union of the Chemical Industry for Industrial Purposes of the State of São Paulo, which received this harsh and interesting admonition from the rapporteur of the judgment: We have seen on many occasions that employers do not heed the summons to go to court to decide collective disputes. We have often seen ridiculous proposals to meet the employees’ most pressing needs. We have seen employers use all possible means to obstruct the action of the courts. We have seen employers use merely protractive ploys. But in the present case the opposite is true. It is the employers who are demanding that the dispute be filed… And

 TRT2, Processo 64, 1964. In another case, in the face of a strike threatened at the DRT round table, the employers agreed to settle a dispute to prevent it from being resolved in the courts. TRT2, Processo 260, 1963.

180

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

it is the employees who allege preliminaries that are entirely irrelevant and typically protractive.

But why was it in the union’s interest to ensure that every step of court procedure be carried out to the letter, as, indeed, the case records reveal to be the case? The employers’ allegation puts forth an argument that clarifies the matter: the union’s “denials” were politically oriented in defense of the strike movement to put pressure on the government, so the union needed to be free to join the movement whenever it saw fit. If they had reached an agreement, they would no longer have the conditions and the same freedom to join any movement. So, the announced strike could be held at any moment and kept everyone on tenterhooks.⁶⁴

Their claim rings true. The 12th November 1963 issue of the newspaper O Estado de S. Paulo contained a report on preparations for a national strike by oil refinery workers to force the government to nationalize the Capuava Petrochemical Complex refinery in São Paulo state. Thus, the union did everything it could to delay the proceedings with contractual and wage-related matters in the administrative sphere. If the proceedings had been conducted swiftly, leading to a judgment by the TRT, there would be no justification for industrial action, especially because it was a “political strike.”⁶⁵ In another case, the employers made similar allegation: “the true objective of this dispute is, in fact, to make an illegal strike legal.”⁶⁶ Therefore, we can conclude that important sectors of the workers and the trade union movement learned to play with and against the weapons offered by Decree-Law No. 9,070, which has not received its due attention from scholars of this subject. We should take a better look at the employers’ claims, despite their occasional rhetorical exaggerations about their irresistible desire to uphold the law. FIESP lawyer Waldemar Gola was well aware of what he was saying when he referred to that decree: The urgent collective disputes, if we can put it that way, and whose outbreak would lead to the stoppage of work, were disciplined by a special law, the so-called strike law, that is, Decree-Law No. 9,070, usually denigrated and attacked by the trade unions, which neverthe-

 TRT2, Processo 373, 1963 (emphasis mine).  The same stratagem was used by the bank workers of São Paulo, whose union opposed the TRT’s decision to go over the heads of the conciliatory bodies. TRT2, Processo 242, 1963.  TRT2, Processo 112, 1963.

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

181

less rely on it whenever they aspire to legalize their strike movements. It is a nefarious but necessary document, paradoxically very useful to those who detest it.⁶⁷

I do not doubt that there were trade unionists who would agree with such statements, whose argumentative force sums up the entire premise of this chapter.

VII Now let us evaluate the results of disputes with and without strikes in relation to the workers’ demands and rights. They achieved some rights in 72 percent of the cases involving industrial action, compared with 65 percent in those which did not. However, they were fully approved in only 4.5 percent of the cases associated with strikes and 11.5 percent in the remainder. This result is not surprising, since strikes presented a longer list of demands and, therefore, those demands were more likely to be reduced by courts whose decisions were often based on Solomonic principles. This reasoning helps explain why the percentage of partial approvals was higher in cases with strikes (32 percent versus 27 percent). However, in those cases, the rejections were almost nil (1 percent), compared to a higher rate in the cases without strikes (7 percent). Workers managed to wrench more deals from the employers when they engaged in industrial action (36 percent versus 28 percent). By refining the research slightly, we find that the cases involving strikes obtained more favorable results for the workers. When we look at the proportion of items demanded and granted in the judgments, the data in Figure 14 show that it was through strikes that workers obtained rights in areas where normative power advanced very little, particularly with regard to items related to the workplace, with the numbers not allowing exaggeration. In any case, in the demands classified as “career/employment relationship” and “trade union representation,” the TRT was more generous in disputes associated with strikes. It included clauses about the non-punishment of strikers, which were always badly received by employers who wanted to reserve the right to hire and fire employees. Nevertheless, the Labor Courts did not withdraw such in three-quarters of the cases involving industrial action.⁶⁸

 TRT2, Processo 113, 1963 (emphasis mine).  Pomari, Justiça do Trabalho, 13. For decisions declaring strikes legal, ordering payment for days not worked and non-punishment of strikers, see, for example, TRT2, Processos 233/1963, 371/1963, 308/1963, 411/1963, 14/1964, 240/1963, 325/1963,

182

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

Figure : Percentage of rights obtained in disputes with and without strikes⁶⁹ Source: Tribuna Regional do Trabalho ª Região/SP

Therefore, we can see that the workers obtained more rights when they linked strikes with collective disputes.

VIII Thus, we can conclude that, between 1945 and 1964, the institute of collective disputes in Brazil was not inconsistent with the right to strike and the exercising of that right, or even with the direct action of unions and workers. Murilo Leal has shown that, in those years, seven of the São Paulo metal workers’ campaigns for wage increases were accompanied by strikes (four of them “general”); among the textile workers, five out of 12 campaigns included industrial action, all “general strikes.”⁷⁰ In 1953, the year of the famous “Strike of the 300,000”, which vir-

 373/1963, 390/63, 16/1964.  Murilo Leal, A reinvenção da classe trabalhadora (1953 – 1964) (Campinas: Editora da Unicamp, 2012), 158.

6 The “Mystique of Strikes” and the “Sovereignty of the Courts”

183

tually paralyzed the city of São Paulo in March and April, 72 collective disputes were filed with the Prosecutor’s Office of the Labor Courts.⁷¹ There were also several strikes, such as those in the immediate post-war period, in which many categories of workers skipped the mediation of the Labor Courts, overcoming the limits imposed by corporatism.⁷² This trend reached its climax in the 15 months prior to the 1964 civilian-military coup. After the coup, the government issued Law No. 4.330 of 1st June 1964, which imposed almost insurmountable obstacles to strikes.⁷³ The new regulation, which became known as the “anti-strike law,” revoked Decree No. 9,070, which was called the “strike law”, although, as we have seen, it was an instrument that limited more than recognized the right to engage in industrial action. However, the dictatorship’s law sought to close the loopholes that its predecessor had created. The obstacles to strikes, among others, lay in the following requirements: the need for authorization by a trade union assembly attended by twothirds of the workers, convened by publishing a notice in the newspapers at least ten days in advance; voting by secret ballot, with the participation of a representative of the Public Prosecutor’s Office at the counting table; notifying the employer of the strike, giving them five days to meet the workers’ demands, as well as informing them of the exact time the strike would begin; sending a certified copy of the assembly minutes to the DRT to enable it to attempt to reconcile the conflict; and a ban on “political” and “solidarity” strikes.⁷⁴ After years of “wage squeezing” and, to say the least, the suppression of the trade union movement, there was no good reason for workers in the late 1970s and early 1980s to be happy with the official system of labor relations adopted in Brazil.

 Larissa R. Corrêa, A tessitura dos direitos: patrões e empregados na Justiça do Trabalho, 1953 a 1964 (São Paulo: LTr, 2011), 56.  Hélio da Costa, Em busca da memória: Comissão de fábrica, partido e sindicato no pós-guerra (São Paulo: Scritta, 1995).  Alonso Droppa shows, however, that the rapporteur’s opinion of the bill was very close to positions previously taken by jurists regarding the need to regulate article 158 of the Constitution of 1946. Droppa, “Tempos de mudança”.  See comments on the law in Ibid., 27– 28.

7 “Class Justice” between “the fields and factory”¹ I’m all tangled up because a carpet is made of so many threads that I cannot resign myself to following a single thread; I’m all tangled up because a story is made up of many stories, not all of which can I tell… (Clarice Lispector)²

I Historians and social scientists seem to have encountered serious difficulties in evaluating workers’ views of the effectiveness and legitimacy of the Brazilian Labor Courts. Limited documentation is part of the problem. On the initiative and by order of the Judiciary itself, millions of case records periodically are destroyed around the country. The available sources include the memoirs and statements of workers, principally union activists. They have been one of the main guides for research, based on which scholars produce numerous ponderings about the role of the Labor Courts.³ Here, too, we will follow the clues left by a memorialist who came into close contact with the Labor Courts prior to 1964. The union leader and Communist Party deputy and activist Luiz Tenório de Lima will serve as a guide in this chapter, with the aim of analyzing a story of struggles to expand workers’ rights in the countryside, focusing primarily on the Labor Courts in São Paulo state. However, if we are interested in more than just the narrative act, wanting to turn it into reliable empirical input for our interpretations of the workings of the Labor Courts in Brazil, I think we should compare his oral testimony and autobiography with other accounts and sources. It is not simply a matter of confirming or

 This chapter is derived from Fernando Teixeira da Silva. “‘Justiça de classe’: tribunais, trabalhadores rurais e memória.” Mundos do Trabalho, Florianópolis, 8 (5), second half of 2012.  “Meu enleio vem de que um tapete é feito detantos fios que não posso me resignar a seguir um fio só; meu enredamento vem de que uma história é feita de muitas histórias. E nem todas posso contar… “ Clarice Lispector. Felicidade clandestina (Rio de Janeiro: Rocco, 1998), 99 – 100.  See John D. French, Afogados em leis: a CLT e a cultura política dos trabalhadores brasileiros (São Paulo: Editora da Fundação Perseu Abramo, 2001); Kenneth S. Mericle, In Authoritarianism and Corporativism in Latin America, edited by James M. Malloy (London: University of Pittsburgh Press, 1977). https://doi.org/10.1515/9783110638844-013

7 “Class Justice” between “the fields and factory”

185

refuting them but of gaining a better understanding. Collecting statements, opinions and facts at random to legitimize preconceived notions corresponds to treating empirical material as examples. Perhaps interpretations of the performance of the Labor Courts and their impact on workers’ lives should not be simply extracted from memoirs without other forms of mediation. Thus, I will interweave Tenório de Lima’s accounts with the records of lawsuits involving rural workers on a sugar plantation and mill in the town of Assis, in the interior of São Paulo state – legal action which our narrator directed, both inside and outside the Labor Courts. We will also follow legal events and acts that were certainly known to Tenório and carried out by him, but which are not included in his account. Of course, I do not attribute such omissions to lapses or failures of memory, but to selectivity based on a narrative performance in which individual deeds are identified with collective values shared by a certain “Communist memory,” a hypothesis to which I shall return in the final part of this chapter. Therefore, what follows establishes a link between two fundamental questions. First, I analyze the role of the Labor Courts and their normative powers in the expansion of labor laws and rights in the countryside, particularly in São Paulo state in the early 1960s. Secondly, but not least, I examine rural workers’ perceptions of the law and the performance of the courts at a time when profound changes were taking place in rural labor relations. These two questions will be connected through the analysis of the mechanisms for forming a communist memory of the Labor Courts. It is a phenomenon that has been overlooked in studies that transform mnemonic records into evidence for historical interpretation. Furthermore, in this chapter I return to my general hypothesis in this book about the relationship between workers and the 1964 coup.

II A native of the northeastern state of Pernambuco and better known as Tenorinho in union circles, Luiz Tenório de Lima was well aware of working conditions in sugar mills. When he was a child, one of his brothers worked in a mill and was paid in goods instead of money. Starting out by selling sugar in 1930, Tenorinho went on to work 12-hour shifts at a mill’s chemistry lab in 1938, after which he got involved in a strike in Palmares, his home town. The movement led to firings, with entire families evicted from their homes and “thrown into the cane fields.” He was then just 14 years old. He soon learned that the law “belonged to the mill owner” and got to know comrades from the Communist Party of Brazil (PCB). By the time he was 17, he was a union delegate and, during the death throes of the

186

7 “Class Justice” between “the fields and factory”

Estado Novo regime in 1944, co-founded the Sindicato dos Trabalhadores na Indústria do Açúcar e do Álcool do Estado de Pernambuco (Union of Sugar and Ethanol Industry Workers of the State of Pernambuco). Fleeing persecution, he went to the state of Sergipe, also in the Brazilian northeast, where he rose to become technical director of that state’s first distillery. Despite the responsibilities of his job and being considered a supervisor by his employer, he soon bonded with the workers. He wore a flat cap, much to the mill owner’s disapproval, as he was head of production. Lighting the workers’ cigarettes and patting them on the back did not go down well either. Confident that he would keep his job, particularly because his boss respected him for doubling the distillery’s production, the shrewd and elusive Tenorinho gave the following advice to workers who complained about conditions in the cane fields: “go on strike.” They retorted that their demands would not be met, but Tenório replied, “They will, because the law guarantees it, and if we don’t make things better, well….” Then, he negotiated a six-hour strike, the first ever at that sugar mill. Tenhorinho’s next steps would take him far. He rose from member to president of the Sindicato dos Trabalhadores do Açúcar do Estado de Sergipe (Union of Sugar Workers of the State of Sergipe) immediately after World War II, but when Brazilian president Eurico Gaspar Dutra (1946 – 1951) declared open season on Communists, that organization was “intervened” in May 1947. Thus ends the “Life of Tenório,” the first chapter of his memoir.⁴ The title of that chapter gives a good idea of the overall plan for his book. Everything that transpired after that had been foreshadowed in the events and experiences described in the opening chapter. What follows in his memoir is an account of his accomplishments as part of the so-called milestones in the country’s political and trade-union history. We follow a linear and consistent autobiography that, in a crescendo, links work, trade unionism and Communist activism, amid the chronology of Brazilian political-institutional life. For the purposes of this book, it is worthwhile to add that Tenorinho migrated to São Paulo state, where he continued to work in sugar factories and mills; organized and participated in several strikes, such as the famous “Strike of the 300,000” in 1953; helped found and consolidate major workers’ organizations, including the Pacto de Unidade Intersindical (Inter-Union Unity Pact; PUI), the União Geral dos Trabalhadores (General Workers’ Union; UGT) and the powerful Comando Geral dos Trabalhadores (Workers’ General Command; CGT); he was elected state deputy in 1962, representing the Partido Trabalhista Brasileiro (Bra-

 Luiz Tenório de Lima, Movimento sindical e luta de classes (São Paulo: Oliveira Mendes, 1998), 1– 6.

7 “Class Justice” between “the fields and factory”

187

zilian Labor Party; PTB), staying with that acronym because the Communist Party was still banned. As president of the Federação dos Trabalhadores na Indústria da Alimentação do Estado de São Paulo (Federation of Food Industry Workers of São Paulo State; FTIAESP), Tenorinho had the opportunity to gain first-hand knowledge of the workers’ experience with the Labor Courts between the late 1950s and the 1964 coup. More than that, he was able to pontificate about the place of that institution in the Brazilian workers’ movement, as he was a lay judge in the Labor Courts – that is, a judge representing the workers, appointed by them as part of a triple list of candidates and chosen by the president of the court.

III In 1962, a strike broke out at the Usina Nova América sugar mill in the town of Assis. This may have triggered Tenorinho’s memory of what took place at the mill where he worked in Palmares at the age of 14, because the mill worker reacted with the same fury: “They kicked the workers out, driving them from their homes. They were out in the open, in the rain. It was hell.” The workers wanted “solid rights,” such as vacation pay and signed work papers, which were routinely denied by the powerful sugar mill owners. According to Tenorinho, “Confident because of the victories we had obtained as a result of our work, the peasants ended up going on strike.” In other words, they did not immediately go to the Labor Courts – the first step to be taken if the employees and employers failed to reach an agreement, as the law required. Without describing the obstacles the workers faced to assert their rights, he only tells us that “there was no other solution in that strike. We took the negotiations to the DRT [Regional Labor Department].” The first attempts at conciliation outside the private sphere were made in that administrative instance, which was subordinated to the Labor Ministry. However, the parties failed to reach an agreement and the case went to the second instance, the Regional Labor Court of the 2nd Region, based in the state capital, São Paulo City. An old hand at legal proceedings, Tenorinho, was not very hopeful that the TRT’s decision would be favorable to the workers. As he disdainfully recalled, “I already knew the risk we were running with the famous class justice.” In another passage from his book, he warns the reader that, “The creation of this court was the way of intensifying the presence of the State in the conditioning of the capital-labor relationship, but in favor of the ruling classes.” This “shock absorber

188

7 “Class Justice” between “the fields and factory”

for labor disputes”⁵ was therefore a mechanism that supposedly worked under strong external pressure, making it occasionally swing to the side of the workers. Tenorinho then rented two buses that took dozens of peasants to the state capital to attend the hearing at the TRT in São Paulo. Their arrival at the courthouse caused consternation. “Men who were thin from having endured starvation” and “ragged women with children at their breasts” were walking on the courthouse carpets. Tenório reacted to the expressions of censure, shouting, “This here is theirs. Let them walk [on the carpets] as much as they want…” But let us skip ahead to the outcome of the judges’ vote. It was a tie. Tenhorinho was apprehensive about the next step: the deciding vote cast by Décio de Toledo Leite, president of the TRT. In an overcrowded courtroom – perhaps because it was so crowded – the judge adjourned the session until the following day. Our narrator urged the sugarcane workers to attend the next hearing to “learn what class justice” is: venal justice, because the judges were believed to have adjourned the vote “to sell [it] more dearly to the bosses.” However, there was a glimmer of hope: “It will be a surprise for us if he gives me the lie and votes in your favor. I will die happy if that happens.” The hearing reopened the next day, and Leite handed down his “lightning-fast sentence”: “I vote to dismiss the complaint.” More than ever, Tenorinho’s warnings about the Labor Courts seemed justified. He placed a coffin in front of the court on Rua Rego Freitas and exclaimed: “Look, you make a note of this man’s name. His name is Décio de Toledo Leite. He has ruined your life. He sided with the boss.” Then he went on to explain what “class justice” was all about: “He didn’t settle it yesterday because, of course, overnight, he increased his clout with the bosses.” Such an affront to the Judiciary and a magistrate of the Republic could not go unpunished. Judge Décio Leite revoked his credentials as a member of the Labor Courts. For Tenório, that meant nothing and, once again, he reacted with disdain. After all, he claimed, his candidacy for the post of lay judge was part of his strategy for running for election as a federal deputy for the Brazilian Labor Party, because he believed that holding that office would protect him from political persecution.⁶

 Ibid., 15 – 16.  Ibid., 84.

7 “Class Justice” between “the fields and factory”

189

IV We have located all the elements already found by John French in Luiz Tenório de Lima’s narrative: workers who are disdainful and disillusioned about the effects of the law and the Labor Courts – both considered a “joke and bogus.” At the same time, French demonstrates that, while rejecting it, some still idealized the effectiveness and application of the law.⁷ Indeed, no matter how much he disparaged the Labor Courts, Tenorinho, like many French cites, had an ambiguous view of that institution’s place in the life of the workers. Tenorinho himself is said to have told the peasants of Assis that they could walk freely on the TRT’s carpets because “this here is theirs.” Furthermore, as he said, the employers resisted the introduction of labor laws and courts, especially the “most backward” ones – which implies that the “CLT system” was considered somehow “advanced.” Besides, the bosses complained because they [the Labor Courts] guaranteed certain rights to workers, such as paid annual leave, an eight-hour work day, guaranteed minimum wage, protection of women’s labor and workers under the age of 18, a six-hour day for bank workers, telephone operators and miners, as well as clauses that improved hygiene in the workplace.⁸

This ambiguity is reinforced when Tenorinho insists that the workers “had legal protection and, because of that, sued for their rights in the Labor Courts. They found a way out in that.”⁹ He himself relied on the benefits of “class justice” twice: he was reinstated in his job at the Leite União company by decision of the Superior Labor Court, having been compensated with “a lot of money.” Years later, when he was fired from Cibus for sabotage, he was reinstated by Judge Carlos Figueiredo de Sá, who later became a “partner and our friend, who we all knew.”¹⁰ In fact, the judge became a “comrade,” because he joined the ranks of the Communist Party.¹¹ However, although Tenorinho thought “that [legal] structure” had brought “something positive,” it was nothing but cynically orchestrated “Getulist pater-

 French, Afogados em leis..  Lima, Movimento sindical, 15 – 16 (emphasis mine).  Ibid., 17.  Ibid., 89.  Larissa R. Corrêa, “A ‘rebelião dos índices’: política salarial e Justiça do Trabalho na ditadura civil-militar (1964– 1968).” In A Justiça do Trabalho e sua história: os direitos dos Trabalhadores no Brasil, edited by Ângela de Castro Gomes e Fernando Teixeira da Silva (Campinas: Editora da Unicamp, 2013).

190

7 “Class Justice” between “the fields and factory”

nalism” that “isn’t handed out for free” because its aims and outcome were supposed to be controlling the working class, “ensuring the added value.” The workers’ demonstrations opposed “that structure,” with the proviso that “they were not spontaneous. They were organized by the Communist Party which, from the very start, did not accept the paternalist measures of Getúlio Vargas.”¹² As I shall discuss once again at the end of this chapter, it was from this place, as a party member, that Tenorinho organized his narrative about the episode involving the sugarcane workers of Assis and, mainly, his perception, authorized by personal experience, of the Labor Courts as “class justice.” And it is from this place that he constructs a consistent autobiographical narrative, without deviations or hesitation, from which we can approach the selective operation of his memory. Just as his narrative elucidates – among other things, shedding light on the ambiguity between rejection and vague hope about the law and justice, which John French addresses – it also elides, obscures, confuses. This is not due to a deliberate perversion of the act of remembering but to the effort to maintain the consistency or interpretation of the events recounted. As we shall soon see, his account is a work of creative editing that operates a separation or estrangement between narrator and protagonist, narrative event and narrated event.¹³ Let us take a look at this last one first.

V About 300 workers went on strike at the Nova América mill in the town of Assis for six days in June 1962.¹⁴ The industrial action began at the sugar mill but was soon joined by rural workers from the Nova América sugar plantation. According to the Communist newspaper Terra Livre,¹⁵ the reason for the strike was the firing of Martins Sindô dos Santos, president of the recently founded Associação Profissional dos Trabalhadores em Alimentação (Professional Association of Food

 Lima, Movimento sindical, 17.  Regarding this question, see Daniel James, Doña María: historia de vida, memoria e identidad política (Buenos Aires: Manatial, 2004), 163 – 164.  The labor lawyer Ibiapaba Martins may have exaggerated when he estimated that roughly 2,500 workers went on strike; see “Proletariado e Inquietação Rural”, Revista Brasiliense, São Paulo, 42 (1962), 73. The scholar José Cláudio Barriguelli seems more realistic when he mentions 300 strikers; see José C. Barriguelli,”Conflito e participação no meio rural: a greve da Usina Nova América, 1962.” Anais do VIII Simpósio Nacional de Professores Universitários de História (São Paulo: FFLCH-USP, 1976), 865, vol. 3.  Terra Livre, São Paulo, 111 (1962).

7 “Class Justice” between “the fields and factory”

191

Workers), whose main objective was uniting sugar mill workers with field workers who planted and harvested sugarcane. The owner of both the plantation and the mill, Renato de Rezende Barbosa, had done everything in his power to prevent the creation of that union and the presence of union leaders on his land. On the fourth day of the strike, amid measures taken to break it up by police and the local priest, Luiz Tenório “Tenorinho” de Lima managed to enter the mill as president of the Federação dos Trabalhadores nas Indústrias de Alimentação do Estado de São Paulo (Federation of Food Industry Workers of São Paulo State; FTIAESP). The strike ended in a victory for the workers. The agreement signed by the sugar planter and mill owner conceded important gains: payment for days not worked and vacation pay withheld for many years, recognition of the union and not firing any of its directors. Sindô preferred double compensation to being rehired. In an article featuring his photo on the front page of Terra Livre, Tenorinho was hailed as the great champion of the movement, “thanks to whose leadership workers have been winning countless victories against the exploitation of the bosses.” However, the Communists were not alone. This was made clear by the new wage agreement reached with the planter, Renato Rezende. In late July 1962, the leaders of the Sindicato dos Trabalhadores Rurais de Assis (Union of Rural Workers of Assis) gathered at the headquarters of the Círculo Operário (Workers’ Circle), a Catholic organization, to sign an agreement with the employer whose outcomes are key to the arguments in this chapter. The workers present at that meeting decided to give up the “utilities and services” hitherto offered by the plantation, such as healthcare, general store, milk, a pharmacy, arable land and a movie theater. Instead, they preferred to get higher wages for cutting sugarcane without deducting the cost of housing. However, that agreement, which exchanged non-monetary customs and practices for wages, did not obtain a consensus from the workers, leading to the new strike. Even so, the Regional Labor Office approved the agreement.¹⁶ Convinced that the employers had hoodwinked the workers, Tenorinho appealed to the Labor Courts. The federation of which he was president did not file one lawsuit with the TRT, but two.

 TRT2, Processo 232, 1963.

192

7 “Class Justice” between “the fields and factory”

VI The first is the dispute attended by the Assis sugarcane workers who were taken to São Paulo by the devilish Tenorinho, who criticized the president of the TRT. The FTIAESP filed the collective dispute against the Nova América plantation to demand the implementation of the agreement signed in May 1962 by that organization and the Sindicato dos Usineiros do Estado de São Paulo (Syndicate of Mill Owners of the São Paulo State), which had resulted in a 45 percent wage increase.¹⁷ The agreement was reached in the context of 12 strikes in São Paulo state mills, the first of which was statewide.¹⁸ The aim of the dispute was to extend the agreement to the employees of the Nova América sugar plantation, instead of restricting it to workers at the mill of the same name, a matter we will deal with in the next few pages. Tenório was well aware of how the TRT judged cases in which sugarcane cutters fought to be considered factory workers instead of farm laborers. Logical reasoning and a belief in the powers of common sense would conclude that the result could only be the rejection of the request. However, the matter was regulated by several legal norms and jurisprudence.¹⁹ According to a 1944 amendment to the Sugarcane Statute, when work on both the farm and the mill of the same owner or company was especially convergent for sugar production, cane cutters should be treated as industrial workers. This gave them all the guarantees provided in the Consolidation of Labor Laws (CLT), which was not the case with rural workers.²⁰ The Superior Labor Court (TST) had already established jurisprudence on the matter. A prominent Communist activist, Lindolfo Silva, president of the União de Lavradores e Trabalhadores Agrícolas do Brasil (Union of Small Farmers and Farm Workers of Brazil; ULTAB), referred to the following TST judgment: “The CLT’s precepts apply to workers who, although performing agricultural functions (cutting wood, planting and cutting sugarcane, etc.), are employed by industrial companies (sugar

 TRT2, Acórdão 2589/62 do processo 142, 1962 (henceforth, TRT2, Acórdão 2.589/62). My thanks to Patricia de Rossi and Marcelo Pereira, from the History and Memory Dept. of the Second Region TRT, for kindly locating and sending me a copy of the agreement.  Clifford Andrew Welch, A semente foi plantada: as raízes paulistas do movimento sindical camponês, 1924 – 1964 (São Paulo: Expressão Popular, 2010), 378.  Decreto-Law 05, 1938; Estatuto da Lavoura Canavieira, 1941; decreto-Law 6.969, 1944, and decreto-Law 9.827, 1946; Luiz R. de Rezende Puech, Direito individual e coletivo do trabalho (São Paulo: Revista dos Tribunais, 1960), 185.  Welch, A semente foi plantada, 299.

7 “Class Justice” between “the fields and factory”

193

mills).” The PCB member concluded: “As you can see, the court sided with the workers against the bosses.”²¹ In 1958, the judges ruled unanimously that, although rural mill workers “may perform tasks inherent to agriculture, the fact is that they are linked to the private economic activities of the sugar industry and are therefore included within the scope of the dispute.” In this case, by virtue of the judges’ normative power, the workers achieved the right to compensation when fired without cause and job security, with the same legal protections enjoyed by urban, factory and sugar mill workers. Based on TST case-law, Judge Carlos Figueiredo de Sá, who would later become Tenorinho’s “comrade,” was the rapporteur for a judgment that declared that rural workers were the beneficiaries of a verdict on a dispute filed by the Sindicato de Trabalhadores da Indústria do Açúcar (Sugar Industry Workers’ Union).²² In 1960, the National Department of Social Security, in turn, extended social security benefits to sugarcane cutters. This decision was upheld by the Federal Supreme Court (STF), which, according to the Communist, Lindolfo Silva, “ruled in favor of the workers” and against the employer’s appeal.²³ Thus, the federation led by Tenhorinho intended for its agreement with the sugar millers of São Paulo to prevail over the accord that the Catholic-led Union of Rural Workers of Assis had reached with the owner of Nova América, who insisted “on making the greatest distinction… between farm workers and workers from the mill.”²⁴ Opposed to the homologation of the agreement signed with the rural workers’ union, Tenório appealed to the Labor Courts, certainly because he was aware of the trend in recently judged cases. Since it is impossible for us to know the details of the case, as the case records have been destroyed, only the terms of the agreement, in its summary of the dispute, inform us about the outcome. It was a highly controversial matter. The regional prosecutor, Rezende Puech, opined that rural workers should be included in the category of the “profession of industrial workers.” But, just as Tenorinho recalled, the president of the TRT cast the deciding vote, ruling against the dispute. Judge Hélio Tupinambá Fonseca, who was appointed rapporteur for the case, argued that the matter was limited exclusively to the execution of the agreement between the Federation and the mill owners, which included the farm workers and cane cutters at the Nova América plantation. The case thus consisted of individual or plural  Lindolfo Silva, “Previdência Social para os trabalhadores na lavoura de cana.” Terra Livre, São Paulo, 13 (1962).  Puech, Direito individual, 189 – 190.  Silva, “Previdência Social.”  TRT2, Acórdão 2.589/62.

194

7 “Class Justice” between “the fields and factory”

claims (dissídios plúrimos, in juridical terms), that is, a single case encompassed several workers who demanded the same rights from the employer. In other words, the court considered that the case had no judicial merit. He argued that collective disputes existed to deal with controversies related to the interpretation of laws or demands involving the creation of new working conditions and wage increases through normative sentences. According to the ruling, this was not the case, because what was demanded was the execution of a judgment and not the production of “general norms.” The workers who considered that their rights had been violated should therefore go to the Conciliation and Judgment Board, the first instance of the Labor Courts. That body enabled them to claim the payments they considered to be their due, individually or in groups. Tenorinho has already described the frustration that the judge’s deciding vote caused among the workers at Nova América. Instead of following Judge Tupinambá Fonseca’s advice, the FTIAESP decided to keep to the path of collective struggle. In its appeal to the Superior Labor Court,²⁵ the Federation argued that there was class bias in the courts. It accused “the brilliant Judge Hélio Tupinambá Fonseca, who owns an agricultural establishment like that of Mr. Renato Rezende Barbosa [owner of the Nova América plantation],” of being “a party in the case who should therefore recuse himself.” As to the merits of the case, the appeal claimed that there had been “non-compliance with the collective bargaining agreement.” The TST magistrates, in turn, upheld the TRT’s decision, arguing that “suspicion of the illustrious Judge Hélio Fonseca was not raised [by the Federation] at the time of the trial, and if the claimant allowed him to participate, there is nothing more to be said.” Regarding the merits of the case, the rapporteur concluded, “no normative sentence should be pronounced, as it already exists, and all that remains to be done is for it to be carried out. I have nothing more to say… given the straightforward procedural matter in question.” Tenhorino’s invective against “class justice” and Judge Décio Leite, whom he accused of selling his deciding vote to the employers, came when the TRT handed down its decision. But the case did not end there. It dragged on in another lawsuit, which Tenorinho does not mention in his autobiography, perhaps because the outcome was very different – at least in the São Paulo tribunal.

 TRT2, processo 232, 1963.

7 “Class Justice” between “the fields and factory”

195

VII Almost simultaneously with the judgment of the case analyzed in the previous section, which aimed to extend the terms of agreement between the Federation and the sugar mill owners to the Nova América plantation’s rural workers, Tenório filed another dispute with the Labor Courts. This time, he was fighting not only the owner but also the Union of Rural Workers of Assis. As we know, the FTIAESP and the strikers opposed the signing of an agreement between the rural workers’ union and the planter/mill owner because they considered that it went against the cane cutters’ interests. This sort of dispute was unusual, as it aimed to make the agreement null and void because there were no “rural workers” on the plantation. The Communist lawyer, Ibiapaba de Oliveira Martins raised the same argument used in the previous case. In his view, according to an article he published in Revista Brasiliense soon after the strike in Assis, the mill owners and planters wanted to consider their employees “mere rural workers and, for that very reason, excluded from an entire range of provisions of the Consolidation of Labor Laws.”²⁶ Ibiapaba was the same lawyer who had defended the Federation in the dispute. According to him, Usina Nova América (the mill), Fazenda Nova América (the plantation) and Renato Rezende Barbosa were part of the same industrial complex specialized in sugar and ethanol production. Therefore, said the lawyer, an establishment and legal entity should not be confused with a company and employer, since one company could include several establishments. “Therefore, the workers are industrial workers”; to consider them “agricultural workers” would amount to a “legal aberration.” To establish fraud, the FTIAESP requested the intervention of the DRT’s inspectorate. Inspector Humberto Tallarico de Souza found in an on-site visit that the mill and plantation “are confused in a single industrial complex.” He further noted that the Federation and the strikers were opposed to the Agricultural Workers’ Union’s agreement, concluding his report as follows: the sugar agribusiness is a typical activity of rural industry, where production is entirely directed to the production of sugar and ethanol. The employees of the sugarcane plantation have legal guarantees, but they are not guaranteed in practice, much more than the few that are attributed to the rural worker by the CLT (emphasis mine).

Tallarico suggested that the sugarcane workers become members of the Confederação Nacional dos Trabalhadores na Indústria (National Confederation of Industrial Workers, CNTI), which he may have known was also a Communist hot Martins, “Proletariado e Inquietação Rural,” 62.

196

7 “Class Justice” between “the fields and factory”

bed. He also proposed that the cane cutters should start making social security contributions and receive official work papers from the Labor Ministry, which the planter had illegally denied them. However, the matter was not far from moot in the halls of justice. The interpretation of the DRT’s legal assistant was exactly the opposite, claiming that the plantation was agricultural, while the mill was industrial. Furthermore, the latter was a corporation, and not solely owned by Renato Rezende. The lawyer, Ibiapaba Martins, considered that opinion “childish,” as the planter was the sugar mill’s main shareholder. Given the controversy, the Labor Courts preferred to expand the consultation. The Labor Ministry’s legal advisor endorsed the legal assistant’s opinion but the Labor Minister himself, Almino Affonso, also had to weigh in. He approved the opinion on the opinion. The case was referred to a TRT hearing, so the prosecutor, Luiz Roberto de Rezende Puech, had to be consulted, as his view was key to the instructions for the proceedings. He observed that the employer’s aim was to “cheat the labor laws.” He knew that it was common practice among sugar mill owners to create a legal situation in which planters were apparently mere suppliers of sugarcane to the mills, because the latter, as corporations, were supposedly separate from a single industrial system or complex.²⁷ Puech argued that, “In this case, the purpose of the intended transactions would obviously be to suppress the status of industrial workers for those workers who have [that status] and were well characterized [as such].” Finally, he concluded that the agreement was null and void, since the Union of Rural Workers of Assis was not a legitimate party to the proceedings. Finally, on 9th March, 1964, by four votes to two, the Regional Labor Court voided the union agreement, exactly as the Federation of Food Workers, directed and represented in the dispute by Tenorinho, had wanted.

VIII Voiding the contract did not grant the Nova América plantation’s sugarcane workers the same rights as the workers at the Nova América mill, because their demands were limited exclusively to invalidating the agreement. However, the Federation was now free to try to become a legitimate party in further nego According to Cláudio Barriguelli, Renato Rezende’s ploy “was legally separating the plantation (or the producing plantations) from the mill, transforming the former into mere sellers or suppliers of raw material like the other landowners.” Barriguelli, “Conflito e participação no meio rural,” 861.

7 “Class Justice” between “the fields and factory”

197

tiations. As a result, Renato Rezende, the planter, filed an appeal with the TST. The focus had changed to another that was also well known to the courts. The problem had shifted to “issues of unionization.” One of the judges who voted for the dismissal of the dispute, José Teixeira Penteado, declared in his minority vote that the court did not have the authority to decide that the rural workers’ union was an illegitimate party to the collective bargaining agreement. It was up to the Comissão de Enquadramento Sindical (Trade Union Commission), an agency of the Ministry of Labor, to deliberate on the subject. That was the cue for the farmer to file an appeal with the TST, relying on the “brilliant minority vote.” Renato Rezende may have been aware of an issue that was well known to his adversary in the case, the lawyer, Ibiapaba Martins. To “Make unity between rural workers and workers in industry even more difficult,” says Martins, “the Trade Union Commission is engaging in an intelligent and subtle maneuver.” That agency intended to sever from the powerful National Confederation of Industry Workers “all those who earn a living from growing sugarcane,” transferring them to the National Confederation of Rural Workers. Thus, the cane cutters “would no longer benefit from a range of provisions in the CLT.” Furthermore, the maneuver aimed to remove urban trade unions from the countryside, curtailing the activities of organizations like the Federation of Food Industry Workers. “As its name implies,” that union “brings together an entire professional category that ranges from the farm to the factory, from the most advanced machines to the medieval hoe,” argued Ibiapaba, who was clearly influenced by the Communist Party’s theories about the supposedly feudal character of Brazilian rural life.²⁸ Curiously, until the publication of his book in 1960,²⁹ the regional prosecutor, Luiz de Rezende Puech, supported the idea that the extension of the agreement depended fundamentally on union representation. However, as we have seen, he changed his mind and considered in his opinion on the case in question that the rural workers’ union was not a legitimate party to the agreement with the sugar plantation, Fazenda Nova América. That same year, 1960, Puech assessed that the TRT was hesitant about the matter, but we also see that that court decided to cancel the agreement by four votes to two. However, since 1958, the TST had judged cases on the basis of the industrial character of sugarcane planting when it was intended for sugar production, underestimating the issue of union representation. Research on the trends of court decisions made

 Martins, “Proletariado e inquietação rural.”  Puech, Direito individual, 188 – 192.

198

7 “Class Justice” between “the fields and factory”

between 1960 and 1963 would be necessary, but the fact is that the Superior Court Ministers overturned the Regional Court’s decision, ordering the revalidation of the rural union’s agreement with the farmer. The judge-rapporteur, Rômulo Cardim, argued that the Trade Union Commission had the authority to settle the dispute, but that would not even be necessary, since it was supposedly clear that the Federation could not be a party to the agreement with the planter. Under the CLT, it was up to the Labor Courts to resolve disputes that fell “between the conventions,” resulting from the application or non-observance of collective agreements, but the complainant, that is, the FTIAESP, was not a party to the accord and should respect “the freely expressed wishes of the Signatories of the Agreement.” Rejecting the “exaggerated formalism” of the judgment, the Federation appealed to the Federal Supreme Court, which upheld the TST’s decision. Tenorinho could have invoked this negative outcome to corroborate his theory about the invariably classist character of the Labor Courts and their normative power. He probably failed to do so because he was unaware of it. The decisions of the TST and the Federal Supreme Court were handed down during the military dictatorship, respectively in October 1964 and October 1965, when Luiz Tenório de Lima was in prison after months of clandestine activity. The FTIAESP and the union for its professional category were “intervened” and their directors and union delegates imprisoned.³⁰ However, the TRT made its decision, which was favorable to the Federation, during the tumultuous month of March 1964, so Tenorinho was certainly aware of that judgment. Moreover, in both the latter dispute and the other case, the records for which could not be found, the entire controversy involved, respectively, the extension of one agreement and the cancellation of another. Nevertheless, according to the union activist’s memoir, the workers lost “concrete rights” in court such as vacations that had gone unpaid for years. The TST had actually ratified an agreement between the Union of Rural Workers and Renato Rezende, which the Federation believed to have deceived the workers. Tenorinho recounted the defeat of the sugarcane workers in the TRT without mentioning that the majority of the judges of that tribunal voted to quash the agreement, just as he had wished.

 Lima, Movimento sindical, 139 – 141.

7 “Class Justice” between “the fields and factory”

199

IX Tenório may not have known the outcome of the proceedings in the higher courts, but in his autobiography, he certainly omitted the Achilles heel of his activities: the dispute with Catholic activists in the countryside. Judge Rômulo Cardim may not have been entirely mistaken when he noted in his report that “the matter, in my view, is closely bound up with a more union-like struggle than anything else.” The judgments of the TST and the Federal Supreme Court may have limited the rights of the cane cutters, as we shall see, but at that point, they also signaled the Communists’ defeat by the strong influence of the Church in the rural arena. However, Tenorinho completely avoids this issue, merely emphasizing the dramatic tension of the climax when the president of the TRT cast his deciding vote. By concentrating the entire conflict in a single episode, the narrator limits the action to two main players – himself and the judge. Thus, he emphasizes his confrontation with that authority and his vigilant defense of the underprivileged, who made up his audience there. Nevertheless, much more was at stake, and we know next to nothing about how the judges stood in the confrontation between the Communists and Catholics. The presiding judge in the TST hearing was Geraldo Bezerra de Menezes, a “Catholic down to his deepest roots,” who wrote, among several other works, O comunismo: crítica doutrinária (Communism: A Doctrinal Critique).³¹ According to his encomiastic biographer, that book, which was published in 1962, “accurately traces the parallel between Catholic and Marxist social doctrine.”³² The TRT hearing also included Carlos Figueiredo de Sá, a member of the Communist Party, removed from the post of judge in 1968 and exiled for participating in clandestine organizations that opposed the military regime.³³ However, Tenorinho’s foe, Judge Décio de Toledo Leite, did not seem to appreciate the interference of priests in court hearings. The Communist lawyer, Ibiapaba Martins tells us that the Federation of Food Industry Workers, of which Tenorinho was president by that time, had filed a lawsuit against another sugar mill, Usina Paredão. The mill owner was accompanied by a priest, but the president of the TRT, Décio Leite, “prevented [the cleric] from attending the hearing on behalf of a so-called Association of Rural Workers of the East.” Ibiapaba seemed perplexed: “Now we

 Geraldo Bezerra de Menezes, O comunismo: crítica doutrinária (São Paulo: Ministério da Educação e Cultura/Instituto Nacional do Livro), 197. I would like to thank Alisson Droppa for the reference and contact with the work.  Edmo Rodrigues Lutterbach, Geraldo Bezerra de Menezes: homem de fé e apóstolo leigo (Niterói: Clube de Literatura Cromos, 1996), 49 and 115.  Corrêa, “A ‘rebelião dos índices’”.

200

7 “Class Justice” between “the fields and factory”

ask: what had the priest intended to do at that meeting, by attending it along with the mill owner?” Nevertheless, it is still unclear how the judges’ ideological and religious alignments influenced their decisions. The magistrates who made up the courts of “class justice” were well aware that Tenorinho’s federation was engaged in open warfare with several rural workers’ unions in São Paulo state. Above all, they knew that one of the most important expressions of that rivalry was how each contender dealt with the cane cutters associated with the plantation/mill. Over the course of the proceedings analyzed above, once again two leaders who represented major opposing political forces stood face-to-face in the hearings: Tenorinho and the Catholic, José Rotta. He was the president of the Federação dos Trabalhadores Rurais do Estado de São Paulo (Federation of Rural Workers of São Paulo State; FETAESP), founded in November 1961, the director of the Federação dos Círculos Operários do Estado de São Paulo (Federation of Círculos Operários of São Paulo State; FECOESP) and a collaborator of the military regime, as well as president of the conservative Marian Congregation.³⁴ A summary of the conflict they both represented is key to a better understanding of what was at stake in the case we have been following. It also helps us understand more clearly the possible meanings that the law and justice could have for the lives, outlooks and performance of the rural workers’ leaders, including Tenorinho.

X On 7th January 1962, approximately 50 workers founded the Associação de Lavradores e Trabalhadores Agrícolas de Assis (Association of Small Farmers and Farm Workers of Assis). According to the newspaper Terra Livre, that entity was organized by the left-wing faction of the trade union movement, with the support of Lindolfo Silva, leader of the União de Lavradores e Trabalhadores Agrícolas do Brasil (Union of Farmers and Farm Workers of Brazil; ULTAB), created in 1954 in the context of the Second National Conference of Farmers and Farm

 Fátima Regina de Barros, Organização sindical dos trabalhadores rurais: contribuição ao estudo do caso do estado de São Paulo entre 1945 – 1964. Thesis (masters in Social Science) – PPGCS/UNICAMP, Campinas, 1986, 4; Welch, A semente foi plantada, 327; Barriguelli, “Conflito e participação,” 868. For a more nuanced view of José Rotta, especially during the military dictatorship, see Gabriel da Silva Teixeira, “Sindicalismo rural e política em São Paulo, 1964– 1990” – IFCH-UNICAMP, Campinas, June 2015 (essay presented for the qualification of a proposal for a PhD dissertation in Social Sciences).

7 “Class Justice” between “the fields and factory”

201

Workers, which had a marked influence on rural trade-unionism until the end of 1963.³⁵ Soon afterwards, with the aim of unionizing sugar mill employees, the Associação Profissional dos Trabalhadores em Alimentação de Assis (Professional Association of Food Workers of Assis) emerged. At the time, as we have seen, they went on strike to protest the firing of their president from the mill. Both associations were part of the PCB activists’ plan to link the demands and movements of farm and sugar mill workers. In March 1962, the Associação Profissional dos Trabalhadores Rurais de Assis (Professional Association of Rural Workers of Assis) was founded with the support of Bishop José Lázaro Neves³⁶ to head off the Communist advance in the municipality, thereby creating the illegal situation of multiple unions. Shortly after the six-day strike at the Nova América plantation and mill, the association was recognized by the Labor Ministry and changed its name to the Sindicato de Trabalhadores Rurais de Assis (Union of Rural Workers of Assis).³⁷ According to the lawyer, Ibiapaba Martins, the association was inspired by Monsignor Fernando Garcês and its directors were appointed by the mill owner, as he told us at a meeting held in the presence of representatives of employees and employers, Monsignor Garces, two local police chiefs and the DOPS [Departamento de Ordem Política e Social; Department of Political and Social Order] officer. “I am not against the organization of the workers, as long as it is a sound organization… Suffice it to say that I myself appointed the directors of the association, with the Monsignor’s guidance…” The planter was convinced that the strike had been ordered by the Federation of Food Industry Workers.³⁸

Despite the clear bias in the Communist lawyer’s statement, his words are credible.³⁹ It is important to understand the context in which this dispute took place between Communist and Catholic activists. Between early 1962 and March 1964, an effective process of unionizing rural workers took place in Brazil. The PCB and the Catholic Church were the main protagonists in the dispute for the leadership of this process, which began due to the pressure of the workers’ movements in the countryside, as it was possible to start a union with just 50 workers. The government had the obvious intention of channeling dissatisfaction through institutional and officially recognized means, as well as gaining the political support of  Terra Livre, São Paulo, 107, January 1962 and 108, February. 1962; Welch, A semente foi plantada, 249.  Araguaya Feitosa Martins, “Alguns aspectos da inquietação trabalhista no campo.” Revista Brasiliense, São Paulo, 40, 1962, 137.  Barros, Organização sindical, 164.  Martins, “Proletariado e inquietação rural,” 73 – 74.  For more empirical elements in this regard, see Welch, A semente foi plantada, 267, 327– 329.

202

7 “Class Justice” between “the fields and factory”

the “rural man” amid increasing political and institutional instability. It also wanted to exclude the influence of Peasant Leagues, which were seen as being more radical. As a result, it facilitated the training and recognition of rural unions. The Labor Minister, Franco Montoro, a leading exponent of the Christian Democrats in Brazil, recognized a large number of unions in mid-1962, at the end of his tenure in the João Goulart administration’s cabinet, in a deliberate plan to eviscerate the “semi-clandestine” organization of the Leagues.⁴⁰ One might say that this was the first trade union structure established in the countryside with the same characteristics of “urban” trade unionism: that is, a vertical structure based on one official union per municipality.⁴¹ In São Paulo state, the unions originated from associations formed by the Church and the Círculos Operários, which had been striving to unionize rural workers since the 1950s. Montoro was clearly trying to benefit his fellow Catholics. He continued to support the aims of the Church which had been struggling to organize rural workers in order to halt the advance of the Communists in the countryside since the time when Carvalho Pinto, another pro-Christian Democrat, was governor of the state. The Federation of Círculos Operários played a major role in this process, seeking to ensure harmony between employees and employers; this is why it was led by José Rotta, who was responsible for the creation of dozens of associations and unions in the interior of São Paulo. He also took part in the case we have been examining, as president of the Federação dos Trabalhadores Rurais do Estado de São Paulo (Federation of Rural Workers of São Paulo State), an offshoot of the Federation of Círculos Operários. His work was based on the principle of conciliation of conflicts about the labor rights, avoiding taking them to the Labor Courts.⁴² In this regard, the testimony of Basilio Tomasela, then president of the Sindicato de Trabalhadores Rurais de Piracicaba (Union of Rural Workers of Piracicaba, São Paulo), is significant:

 Anthony Pereira, “O declínio das Ligas Camponesas e a ascensão dos sindicatos: as organizações de trabalhadores rurais em Pernambuco na Segunda República, 19551963,” Clio, Recife, 2 (26) (2008). Mario Grynszpan and Marcus Dezemone, “As esquerdas e a descoberta do campo brasileiro: Ligas Camponesas, comunistas e católicos (1950 – 1964).” In As esquerdas no Brasil, edited by Jorge Ferreira and Daniel Aarão Reis (Rio de Janeiro: Civilização Brasileira, 2007), vol. 2.  It had the same characteristics as the rural unionization decree of 10th November, 1944. Marcus Dezemone, “Legislação social e apropriação camponesa: Vargas e os movimentos rurais.” Estudos Históricos, Rio de Janeiro, 21 (2008), 224.  Barros, Organização sindical ,, 61– 63, 98, 102– 110, 127.

7 “Class Justice” between “the fields and factory”

203

We were looking for a deal, as I said, and most of the time the deal was done. We would tell the boss that he had to pay, that if he went to court he would lose, and he would listen to us and make the deal. Few cases actually went to court.⁴³

In reality, things may not have gone quite so easily, but Fátima de Barros’s research has shown that the accommodationist approach with the employers “often failed to find an echo among the employees.” The FECOESP came to have an increasingly subdued presence, particularly among the sugarcane workers, losing ground to the leftist leadership.⁴⁴ This was clear in the confrontations on the Nova América plantation. The opposition mounted by Tenhorinho’s federation against the agreement reached between the (Catholic) Rural Workers’ Union and the planter at the Círculo Operário in Assis gained support from the workers, who then announced a strike. The food industry unions and their federation, all of which were associated with the ULTAB, were chiefly responsible for organizing and mobilizing plantation and mill workers in São Paulo state’s sugar-growing areas between 1958 and 1964. They took part in at least 18 strikes in 16 municipalities, at a time when rural movements were the exception, impacting several cities in the interior of the state. Between 1962 and March 1964, the Communists focused primarily on organizing salaried rural workers, preferably those with regular employment, who were mainly found on coffee and sugar plantations. Just as Franco Montoro acted to strengthen the presence of Catholic activists in the agrarian milieu, Almino Affonso, João Goulart’s labor minister in 1963, favored the organization of unions linked to ULTAB. We are, therefore, faced with an aggressive policy of unionization in the countryside. Until 1960, the government had only recognized five rural unions; by 1963, there were more than 400! This policy led the Church and the Círculos Operários to accuse the “Ministry’s Communists” of fomenting a discriminatory practice, precluding the recognition of Catholic unions.⁴⁵ As former PCB activist and leader of the peasants of Ribeirão Preto Irineu Luiz de Moraes recalls, “It was much easier to form rural unions during João Goulart’s administration, especially when Almino Affonso was labor minister.”⁴⁶ While the trade unions that Rotta headed rarely used the Labor Courts, the same cannot be said of the union movement of rural workers organized by the ULTAB, which often went to court to seek the extension and enforcement of

 Quoted in Ibid., 127.  Ibid., 107– 108.  Ibid., 88, 100 – 101, 111, 116 – 118, 141.  Clifford Welch and Sebastião Geraldo, Lutas camponesas no interior paulista: memórias de Irineu Luís de Moraes (São Paulo: Paz e Terra, 1992), 177.

204

7 “Class Justice” between “the fields and factory”

workers’ rights. Gathered in a meeting of their professional category, food industry workers even advocated the creation of new conciliation and judgment boards in the interior of São Paulo state.⁴⁷ This rural trade union policy was in perfect harmony with the orientation of the Brazilian Communist Party, which had been founding and “occupying” unions, especially since the late 1950s, with a view to expanding labor legislation in the countryside. The party had abandoned the directive of staging a “bourgeois-democratic revolution” through insurrection, introduced after it was banned in 1948 and formalized in the Manifesto of August 1950 and its Fourth Congress in 1954. In the Declaration on Communist Party Policy of 1958, which decided to adopt “peaceful means” to carry out the “anti-imperialist and anti-feudal revolution,” we read: to boost the peasant movement, it is necessary to start from its current level, based on the most immediate and viable demands, such as the minimum wage, a reduction in sharecropping, a guarantee against evictions, and avoiding radical slogans in practical work… Legal defense of the rights already assured to the peasants is very important. ⁴⁸

At the Fifth Congress of the PCB, held in 1960, that same directive emerges with greater strength: “it is very important to use legal means, especially legal defense of the rights of the masses in the countryside.” ⁴⁹ ULTAB’s proposal to focus its efforts on the extension of labor legislation to the countryside was the winner at the First National Congress of Rural Workers in November 1961.⁵⁰ Emphasis was placed on the following rights: work papers, annual leave, application of the minimum wage, weekly paid rest and prior notice – all of which were covered by the CLT.⁵¹ However, part of the left wing felt that agrarian reform was a secondary issue, since the generalization of wage labor in the countryside was ad-

 Welch, A semente foi plantada, 111 and 139.  Marco Aurélio Nogueira (ed.), PCB: vinte anos de política, 1958 – 1979. Documentos (São Paulo: Ciências Humanas, 1980), 18 – 19 (emphasis mine).  Ibid., 64– 65 (emphasis mine)  Barros, Organização sindical, 57. In practice, since the mid-1950s, ULTAB had been fighting for the legal enforcement of rights through institutional channels, overstepping the Communist Party’s insurrectionary policy. Welch, A semente foi plantada, 252 et seq.  The Labor Courts had the jurisdiction to hear complaints from rural workers with an “employment relationship.” The CLT covered certain rights set forth in the Civil Code and Commercial Code, such as payment of back wages and prior notice in case of dismissal, minimum wage and vacation entitlements, but left the concept of “rural worker” vague, excluding it from the application of most of the legal precepts. José Martins Catharino, “Proteção ao trabalhador rural no Brasil.” Legislação do Trabalho 83 – 84, 8 (1944). I would like to thank Alisson Droppa for furnishing a copy of that document.

7 “Class Justice” between “the fields and factory”

205

vancing steadily.⁵² Thus, the struggle should focus primarily on achieving workers’ rights, both in legislation and through the Labor Courts. Since the late 1950s, Tenório, an agnostic in labor and judicial matters – at least according to his memoirs – took part in “dozens of lawsuits [filed] by the sugarcane workers.”⁵³ He was thus complying with the decision of a Federation conference held in 1959, which prioritized extending all the rights provided for in the CLT to the sugarcane cutters. In fact, the policy of “strengthening the ties of identity between the mill workers and agricultural wage-earners” had been put in place by the Communists since the immediate post-war period, because such solidarity would imply the realization of the worker-peasant alliance.⁵⁴ Therefore, this emphasis on the legal defense of rural workers’ rights does not seem to correspond with Tenorinho’s contemptuous tone in his reminiscences about the Labor Courts. Nor do we find similar contempt in the political-ideological lines of his party.

XI However, the policies of the PCB should not be sought merely in their official deliberations and summit meetings. Historians are also interested in interrogating rural workers’ conceptions of the laws, rights and courts, which supported and gave meaning to the practices of the Communist trade union activists in their close relations with the “rural man.” The Communist audience among rural workers was not based on formal ideological stimuli. Above all, the activists needed powerful ideas – and one of them was workers’ rights.⁵⁵ Irineu de Moraes, an important Communist leader among the rural workers of the Ribeirão Preto area, observed that it was no use speaking of Communism and the PCB to peasants who “were still thinking about religion, God and the Virgin Mary.”⁵⁶ However, as he noted, “they [also] thought the following: city work-

 Maria Yedda Linhares and Francisco Carlos Teixeira da Silva, Terra prometida: uma história da questão agrária no Brasil (Rio de Janeiro: Campus, 1999), 153.  Welch, A semente foi plantada, 299 – 300.  Edinaldo Antonio Oliveira Souza, Trabalho, política e cidadania: trabalhadores, sindicatos e luta por direitos (Bahia, 1945 – 1950). Dissertation (PhD in History) – PPGH-UFBA, Salvador, 2015, 234 and 236.  I have explored this issue further in Fernando Teixeira da Silva, A carga e a culpa: os operários das Docas de Santos. Direitos e cultura de solidariedade, 1937 – 1968 (São Paulo: Santos; Hucitec: Prefeitura Municipal de Santos, 1995), chapter 6.  Welch and Geraldo, Lutas camponesas, 135.

206

7 “Class Justice” between “the fields and factory”

ers have eight-hour days, a month’s vacation, a family grant, bus passes. They knew what the city workers had and wanted to know why they didn’t have them too.”⁵⁷ Through his day-to-day contact with “them,” Irineu soon understood that he had to speak the language of rights: “I started to talk about demands. They get that immediately.”⁵⁸ His leitmotif was comparing the rights of urban workers with rural wage earners. He then sought to demonstrate the inequality between them, as well as the existence of laws that protected the latter, such as vacations, wage increases and work papers. The main objective was to organize the workers in associations and unions, as they did in the town of Sertãozinho (São Paulo state): “we went to the registry office and registered, it even came out in the papers.” In the end, he made a highly important point: “the peasants liked it very much, the legal thing, registered.”⁵⁹ Irineu was not alone in that perception. Lindolfo Silva, one of the most important leaders in the peasant struggles of that time, came to the same conclusion: “they are men with a strong belief in the law”; they even adopted the expression: “Isso aí é de leis” (“That’s the law”). Silva added the following observation: the existence of laws gave the peasants “the courage to defend that, because they thought they could go to court to demand those rights.”⁶⁰ For that very reason, he started writing a column in the newspaper Terra Livre entitled “Conheça seus Direitos” (“Know Your Rights”). Francisco Julião, a famous member of the Brazilian Socialist Party (PSB) and recognized leader of the Peasant Leagues, also reached the same conclusions: “The peasant is a stickler for the law. He is always concerned with verifying and checking that something is according to the law.” Like many other activists, Francisco Julião “started from the idea that it was necessary to raise awareness among the peasants, the awareness of their rights.”⁶¹ As Marcus Dezemone aptly observes, Julião considered that such adherence to the law was not something natural, spontaneous or innate, but linked to notions of rights that dated back to the Vargas Era.⁶²

 Ibid., 153.  Ibid., 152. Irineu reiterated this question at various points in his memoirs (see 126, 132– 133, 144, 152– 153, 164, 175 – 176).  Ibid., 164.  Quoted in Welch, A semente foi plantada, 266 – 267.  Francisco Julião, Interview with Aspásia Camargo in Ycatepec (Mexico) (Rio de Janeiro: FGVCPDOC, 1977, pp. 4– 5), in Marcus Dezemone, “A Era Vargas e o mundo rural brasileiro: memória, direitos e cultura política camponesa.” In Formas de resistência camponesa: visibilidade e diversidade ao longo da história, edited by Márcia Motta and Paulo Zarth (São Paulo: Editora da Unesp; Brasília: Ministério do Desenvolvimento Agrário, 2009), 93.  Marcus Dezemone, “Legislação social e apropriação camponesa: Vargas e os movimentos rurais.” Estudos Históricos, Rio de Janeiro 21 (2008), 233 – 235.

7 “Class Justice” between “the fields and factory”

207

If we read these statements with due caution, we can see that not only were activists responsible for making the rural workers aware of their rights but also for showing them that the legal and juridical aspects were an important part of a cultural value of the highest order: the written language of rights. After all, Lindolfo Silva himself pointed out that the workers had transformed the laws into an important weapon of struggle even before the founding of the ULTAB.⁶³ Rural workers may have been more aware of the existence of laws and their rights than many historians and other scholars who insisted – and still insist – on the almost complete absence of legal coverage for the rights of rural workers. Although it was very parsimonious when it came to wage-earning rural workers, the CLT did grant them some rights, as we have seen, creating fertile ground for guaranteeing and expanding social and labor benefits. Recent studies have shed light on the role of the CLT in the “peasant imaginary”⁶⁴ and their struggle for rights, especially in the courts, thus ruling out the thesis of a “legal vacuum” in labor conflicts in the countryside.⁶⁵ Writing in the column “Know Your Rights” published in Terra Livre, the labor lawyer Cícero Viana made the following observation in 1963: The struggle for the full extension of labor protection to rural man goes back a long way. While the Consolidation of Labor Laws has defended urban workers’ rights for many years, few clauses of the Consolidation apply to rural workers, and many of those solely through the interpretation of the Courts.⁶⁶

This route benefited not only wage-earning rural workers but also the colonos, whose working relations were very complex, as we will see. In addition to staging frequent strikes, they filed a lawsuit in the 1950s, prompting the São Paulo Regional Labor Court to create jurisprudence recognizing the right of colonos to paid leave.⁶⁷ Regarding coffee-growing colonos in Paraná, between 1954 and 1964, Ângelo Priori has shown that going to court had several meanings: reparation of social injustices, construction of a social identity and collective organization. Through a survey of 60 labor lawsuits, Priori analyzed the clashes between “legal operators” and the creation of jurisprudence that recognized colo-

 Welch, A semente foi plantada, 167.  Dezemone, “A Era Vargas.”  See Linhares and Silva, Terra Prometida, 161.  Cícero Viana. “Conheça seus direitos,” Terra Livre, São Paulo, 124 (1963) (emphasis mine).  Leonilde S. de Medeiros, História dos movimentos sociais no campo (Rio de Janeiro: FASE, 1989), 24. See also, Welch, A semente foi plantada, 269, note 45.

208

7 “Class Justice” between “the fields and factory”

nos as rights-holders amid the complex heterogeneity of labor relations in the rural mileu.⁶⁸ It is a fact, however, that the Conciliation and Judgment Boards were present, in their overwhelming majority, in the main cities. Thus, for a long time, rural labor disputes were decided by district judges. A survey carried out precisely in the Common Court of the town of Assis showed that the judges considered the rural workers’ demands to be legitimate and ruled in their favor in several cases in which the rights guaranteed by the CLT were disputed, in order to attest to “the mobilization of the workers under the impact of the CLT.”⁶⁹ However, we could speculate that such workers might feel less inclined to resort to the Common Courts than to the Labor Courts, due to the latter’s more informal character. In the early 1970s, a judge from the interior of São Paulo, Dr. Clóvis (a pseudonym), observed: many countryfolk are afraid of judges and government people in general. But very recently some of them have begun to discover that they have legal rights, and I apply them; I don’t care what the landowners think. When a worker brings a case to me, he usually wins easily; the laws are quite clear. So we are getting more cases, because the workers find they have a judge who defends their rights. On the other hand, there are many judges here who don’t like to deal with labor cases.⁷⁰

In addition to not always accepting claims from the labor sector, the Common Court was known to be much slower and judges in rural municipalities were “well versed in the Civil and Criminal Codes, but practically lay lawyers in labor matters.”⁷¹ For these and other reasons, labor activists, including the Communists, were strongly committed to create Conciliation and Judgment Boards (JCJs) in the interior of São Paulo state. Amid tension in the Ribeirão Preto region in the mid-1950s, the local Board, which grew out of the efforts of PCB activists, “became the main focus of the peasant movement.” Rural workers accounted for nearly 40 percent of its case load by the end of 1964. From 1961 until the civilian Ângelo Priori, O protesto do trabalho: história das lutas sociais dos trabalhadores rurais do Paraná: 1954 – 1964 (Maringá: Eduem, 1996).  Linhares and Silva, Terra Prometida, 161– 162.  Dr. Clóvis goes on to state that, even though he ruled in favor of the workers, they still ran the risk of being fired or waiting a long time for appeals to be exhausted in the higher courts. Robert W. Shirley, “Law in Rural Brazil.” In Brazil: anthropological perspectives, edited by Maxine L. Margolis and William E. Carter (Nova York: Columbia University Press, 1979), 358 – 359.  Fernando A. Azevedo, As Ligas Camponesas (Rio de Janeiro: Paz e Terra, 1983), 83. I would like to thank Alisson Droppa for calling my attention to this issue. The original term used for “lay lawyer” is rábula, a lawyer without former training who was nevertheless authorized to practice law.

7 “Class Justice” between “the fields and factory”

209

military coup, the golden age of agitation in the countryside, they appealed even more frequently to the Conciliation and Judgment Boards and tribunals, reducing the gap between them and the Labor Courts.⁷² Communist Party activists discovered that the law, workers’ conceptions of their rights and legal action could be very useful to the party’s organization and mobilization efforts in the countryside.⁷³ The magistrates were equally committed to expanding the JCJs. Judge Cesar Pires Chaves, president of the TRT of the 1st Region, based in Rio de Janeiro, recommended in 1963 that new Boards be set up, “especially now that labor legislation is benefiting rural workers.”⁷⁴

XII So far, we have come a long way, from Tenorinho’s memoirs, through the struggles of the Nova América mill and plantation workers in the courts, to the clashes between Communists and Catholics in the countryside, in addition to the legal and judicial possibilities of winning rights. It is a meandering path that winds around the impressions that Tenorinho left about the role of the Labor Courts in rural workers’ struggle for their rights. Much of what we have seen leaves a gap between his derogatory and cynical account of the courts and the extent to which he himself, his party and other activists relied on the judicial arena. However, I do not believe I have completed the outline I have been drawing, as my intention here is to demonstrate the limitations of the readings and interpretations based on an often-random selection of leftist activists’ reminiscences to attest to this or that “classist” character of the Labor Courts. It is therefore time to return yet again to the conflicts on Renato Rezende’s plantation to get a little closer to the rural workers. As a result, we will also approach the place of the law and justice in their lives at a time of radical transformations of labor relations and, above all, the modes of domination in the countryside. The employers’ proposal to the Rural Workers’ Union of Assis posed the following dilemma: 1) the workers would either receive Cr$ 380.80 per day, without

 Welch, A semente foi plantada, 274– 275, 267 and 287.  Regarding the ruralization of the JCCs during that period, see Angela de Castro Gomes and Fernando Teixeira da Silva, “Labor Courts in Brazil: Origins, Challenges, and Expansion.” In Labor Justice across the Americas, edited by Leon Fink and Juan Manuel Palacio (Illinois: The University of Illinois Press, 2018).  Última Hora, Rio de Janeiro, 31st July 1963, 2, in Felipe Augusto dos Santos Ribeiro, A foice, o martelo e outras ferramentas de ação política: os trabalhadores rurais e urbanos de Magé (1956 – 1970). Dissertation (PhD in History) – CPDOC-FGV, Rio de Janeiro, 2015, 200 – 201.

210

7 “Class Justice” between “the fields and factory”

deducting housing, healthcare, general store, butcher shop, pharmacy, milk, movie theater and ploughed land for planting; or 2) the farm would no longer be obliged to provide those “utilities and services,” raising wages to Cr $ 520.56 without deducting housing costs. When both proposals were put up for a vote, the latter won. It is important to note that the former is a description of the planter’s standard practice. Verena Stolcke observes that large São Paulo sugar mills, like Nova América, which is the focus here, and Santa Lina, also in Assis, “built veritable workers’ villages.”⁷⁵ The practice Renato Rezende adopted to pay his employees was the use of a large number of non-monetary expedients, such as the so-called “truck system,” in which workers ended up accumulating debts to the owner that made it difficult for them to leave their jobs. Regarding the Nova América plantation, José Barriguelli presented a situation that was well known in other parts: workers and small farmers lived on the plantation and paid rent that was deducted from their wages; the “pharmacy” sold medicine at “market” prices, while the plantation bought them “at the price of production,” making a small profit; clothing and food produced on the plantation itself were also deducted from wages, as were fees for the maintenance and use of the sports club. After all those deductions, the workers received between ten and 15 percent of their wages in cash. The Rezende family also had a major advantage: Nova América was the only mill within 100 kilometers, so it could monopolize local sugar production, impose a “pricing policy” and catalyze the regional workforce.⁷⁶ This agreement, signed by the Catholic-oriented trade union, replaced the “truck system” with “pure” salaried work while maintaining the right to housing. It seemed to be a logical decision, given all those forms of extracting surplus labor through non-monetary means. However, not only did Tenorinho and other leaders oppose the agreement but the workers also went on strike for the second time, filing a collective dispute with the Labor Courts to overturn the accord. But what was at issue here and what was the point of contention, besides ideological and political skirmishes between Communists and Catholics? Based on a criminal suit brought against the strikers, Barriguelli says the agreement was reached “separately” with a specific group of workers in a ploy by the planter and the Catholic-dominated union.⁷⁷ We have also seen that the activists linked to the Círculos Operários did not hesitate to sign favorable deals with em Verena Stolcke, Cafeicultura: homens, mulheres e capital, 1850 – 1980 (São Paulo: Brasiliense, 1986, 253).  Barriguelli, “Conflito e participação,” 861– 863.  Ibid., 867.

7 “Class Justice” between “the fields and factory”

211

ployers in a sort of alliance against their Communist rivals. Even so, we need to understand the motives that led some to accede to such an agreement and others to try to block it by means of strike and the TRT. The question gains significance because profound changes in the management of labor relations were underway, and certain notions of common law were at stake. It was advantageous for employers to rely on the presence of colonos on their property, who lived in houses built by the planters and used the land for “subsistence farming.” Thus, they would be available to do small jobs and receive part of their wages “in kind.” Until the early 1950s, sugarcane in São Paulo was largely cultivated through the colonato system, a very efficient and productive way of exploiting the workforce, with the enormous added advantage of leading to the appropriation of the labor of all members of the colono family who were fit to work in the fields.⁷⁸ However, since the 1950s, and especially from the beginning of the following decade, there had been a brutal acceleration in the process of extinguishing the age-old system of colonato. Due to the rapid development of sugarcane planting within the state and the corresponding concentration of land, the planters were utilizing the areas that workers had formerly used for subsistence farming to produce sugar by exclusively hiring wage labor – day laborers who no longer lived on the plantations and came from the urban zone. Thus, the old system of complementarity between sugarcane or coffee growing and food crops was challenged, forcing employees to purchase food from third-party stores or from the mill itself.⁷⁹ Without the traditional rights attached to family subsistence farming, in the early 1960s there was an increase in labor claims by farm workers, while many colonos were forced off the plantations – a form of “persuasion” on the part of the landowners to get rid of the resident workers.⁸⁰ Thus, in the 1960s, there was an abrupt increase in temporary workers and the resident worker virtually disappeared, creating a huge reserve of manpower that would lead to the exploitation of occasional workers. It is therefore easier to understand the reasons for opposing the agreement, as well as the obvious pressure from Renato Rezende to introduce the payment of the workforce on a strictly monetary basis. For the colonos, ending the practice of interspersing sugar plantations with food crops was a real usurpation of

 On these matters, I follow the analysis of Stolcke, Cafeicultura, 179 – 240, who disagrees with the notion that the colonato system was counterproductive.  José César Gnaccarini, Latifúndio e proletariado: formação da empresa e relações de trabalho no Brasil rural (São Paulo: Polis, 1980), 93 – 96.  José Carlos de Saboia, De senhores a trocadores de cebola. Thesis (masters in Social Sciences) – PPGCS-UNICAMP, Campinas, 1978.

212

7 “Class Justice” between “the fields and factory”

longstanding prerogatives, as well as the loss of some autonomy, especially when the prices of staple foods were pressured by high inflation. Thus, as Stolcke concludes, “deprived of their livelihoods, colonos sometimes left their farms to find work on other properties or, if they were lucky, in industry.”⁸¹ It was a set of reciprocal obligations that collapsed in the name of exclusive rural property rights. The work done in exchange for previously “granted” goods gave rise to certain expectations, with which exclusively monetary payment could hardly compete.⁸² If the workers did not leave the farms, they could also end up being evicted. When the rural workers at Nova América went on strike for the second time, Renato Rezende expelled all the residents from the plantation, hiring only casual workers who did not live on the property.⁸³ As a result, he was free from the fight against the housing deduction, an issue that had already been resolved favorably for the mill workers in the inter-union agreement between the Federation of Food Workers and the mill owners in São Paulo state; that is, an agreement that threatened to include the farm workers, as I have shown. In addition, by evicting the workers and closing the gates, the planter sought to eliminate the link that had been established between workers at the sugar mill and the plantation, who had used their homes as a space for socializing and discussing politics. The basic problem gravitated around the possibility that the workers at the Nova América plantation could have the same prerogatives as the workers at the Nova América mill. The Sugarcane Growing Statute granted the latter irreducible wages, “healthy and sufficient” housing, medical, dental and hospital care and free education for the workers’ children. We do not know to what extent these rights were secured in practice. It should be noted that, as workers, they were entitled to job stability and compensation for time of service in the event of dismissal without just cause.⁸⁴ That was the crux of the matter. Job stability and compensation of farm workers were seen as the main affront to the power of the planters in general, who could no longer hire and fire their employees at will, as they had been accustomed to doing. Extending all the labor laws to the countryside meant trans-

 Stolcke, Cafeicultura, 198.  Regarding this issue in another time and place, see Greg Grandin, Fordlândia: ascensão e queda da cidade esquecida de Henri Ford na selva (Rio de Janeiro: Rocco, 2010), 164– 165.  Barriguelli, “Conflito e participação,” 863.  Octávio Melo Alvarenga, Teoria e prática do direito agrário (Rio de Janeiro, Esplanada, 1979), in Barros, “Organização sindical,” 33.

7 “Class Justice” between “the fields and factory”

213

forming rural workers into legal subjects with greater recourse to the labor tribunals.

XIII It is true that the employees who planted and harvested sugarcane for Nova América did not get the Labor Courts to grant them the status of “industrial workers,” particularly due to the TST. However, in June 1963, the Rural Workers Statute (ETR)⁸⁵ came into effect, putting paid to all the efforts of the clear majority of planters to block any expansion of labor rights by legislative means. The ETR granted “rural workers”⁸⁶ – the legal name of the category to be represented by trade unions – access to all rights hitherto valid for urban wage earners. The Statute was a detailed and complex law, but for the moment, it is worthwhile to list some of the benefits it guaranteed: free distribution of work papers, a copy of the employment contract and the applicable legislation; an eight-hour work-day and protection of the work of minors and women; prohibition of deductions for subsistence crops; payment of the “13th month” salary, paid vacations and social security contributions; a trade union structure in the countryside; the right to job stability and compensation. In addition, it extended the rights envisaged in the CLT that were not established by the ETR. Here we have a number of rights for which the workers were fighting in their movements and labor suits. There are good reasons to support the thesis that the approval of the Statute by the National Congress was a moderate concession to block the increasingly radical struggles in defense of agrarian reform, particularly in a context of acute political polarization in the country. However, the Left welcomed the new law. While pointing to “serious flaws” in the Statute, Caio Prado Júnior, a renowned historian and member of the Communist Party, estimated that “its effects will be considerable, because if [the law] is effectively applied with due rigor, it will certainly bring about one of the greatest economic transformations we have ever seen.”⁸⁷ Furthermore, it should be noted that the ETR recognized the analyses of the Left of the generalization of “pure” salaried work in the rural milieu, placing more emphasis on the extension of labor legislation to the countryside than on the distribution of land per se.⁸⁸ It remains to be consid Law 4.214/63.  Grynszpan and Dezemone, “As esquerdas e a descoberta,” 228.  Caio Prado Junior, “O Estatuto do Trabalhador Legal.” Revista Brasiliense, São Paulo, 47 (1963), 1.  Linhares and Silva, Terra Prometida; Pereira, “O declínio das Ligas Camponesas.”

214

7 “Class Justice” between “the fields and factory”

ered that the Statute challenged the planters’ freedom to decide on labor relations and conditions as they pleased, as well as recognizing subsistence farming as a right and a protection against market forces, issues that are generally marginalized in studies on the subject. The landowners’ reaction was swift. The process of replacing the colonato system with temporary labor reached its peak, multiplying evictions, the burning of the colonos’ houses and destruction of their subsistence farms.⁸⁹ In a survey carried out in the rural area of Assis, Vinícius Caldeira Brant observed that his informants – all landowners – were unanimous in stating that the ETR was the main reason for the mass expulsions of the colonos. Their new rights raised labor costs, “in addition to giving rise to a number of complaints in the Labor Courts regarding past situations.”⁹⁰ Brant was skeptical about the ETR being an important factor in the expulsion of workers from the plantations in the Assis region, interpreting his informants’ explanations as ideological, since that process had begun much earlier. However, it is undeniable that the Statute accelerated it and, during the years of military dictatorship, that law became one of the main targets of attack by large landowners.⁹¹ Laws and tribunals threatened the planters’ arbitrary and private power, particularly the clauses regulating job stability and compensation when laid off. We should be as attentive to the employers’ reactions to labor laws and court action as we are to the memoirs of union leaders. Let us “listen,” then, to this landowner from São Paulo: I think the labor laws are misinterpreted by these leaders because, when those laws did not exist, there was more respect on the plantations. The planter gave orders, and they were obeyed. After those laws, [the workers] can go to court for anything. In the old days, it was very unlikely for workers to make problems with their employers, until that law [was introduced]. If there was a problem, he would settle it right there, without those intermediaries, those lawyers.⁹²

As the interviewer, José Carlos de Sabóia, aptly observes, in the mid-1970s planters had an idealized view of the old colonato system, in which “yes sir and no sir” were believed to have been the colono’s customary response to a boss’s orders. But it is highly symptomatic that the landowners associated the end of the

 Welch, A semente foi plantada, 177.  Vinícius Caldeira Brant, “Do colono ao boia-fria: transformações na agricultura e constituição do mercado de trabalho na Alta Sorocabana de Assis.” Estudos CEBRAP, São Paulo, 19 (1977), 83 (emphasis mine).  Saboia, De senhores a trocadores de cebola.  Ibid., 139 – 140.

7 “Class Justice” between “the fields and factory”

215

colonato system with the labor laws, as one planter says: “Until the 1940s there was no friction between boss and worker. It only began when the social movement was created through the labor laws. The labor policies of the Getulian era created a hostile environment between the landowner and the colono.”⁹³ In this statement, it is also interesting to note that the organization and mobilization of the colonos appear to be associated with the emergence of laws regulating rural labor relations. That was supposedly why “the planters who had, in many cases of ex-colonos or ex-comrades claiming their rights in the Labor Courts, blamed labor laws for the change in the structure of production on their properties.”⁹⁴ Certainly, having to manage coexistence with their subordinates under different rules of sociability weighed heavily on many landowners. Another planter referred to the humiliation the employer felt at having to stand in front of the prosecutor, of the president of a rural workers’ union, and talk to that employee who just a few days earlier had been one of his subordinates and having to talk to the guy man to man…. That creates a psychological repulsion reaction in those folks to keeping the worker on.…⁹⁵

The law emerged as the source of the workers’ insolence, since conflicts were not resolved on personal terms but mediated institutionally and publicly. The memory of court decisions, in turn, was a source of power for workers (“troublemakers”). According to Euclides do Nascimento, a worker from the state of Pernambuco interviewed by Christine Dabat, the statute came into effect on June 18 [1963]. After that, when we filed a complaint in the courts, we never lost again. We started winning 95 percent of the disputes. Then the workers joined the union, I mean, it became a reality. It worked. The demands, vacations, workmen’s compensation, everything was being paid, now based on a law… We started gaining more and more ground through that law.⁹⁶

In the town of Cravinhos, São Paulo, between 1963 and 1974, workers filed 344 labor suits for failure to comply with the rights covered by the ETR. The planters hated having to think back and say that they rarely received favorable judgments in the courts: “the worker always has the advantage in the courts; the planter

 Ibid., 93 (emphasis mine).  Ibid., 17.  Quoted in Stolcke, Cafeicultura, 216 (emphasis mine).  Christine Rufino Dabat, “Uma ‘caminhada penosa’: a extensão do direito trabalhista à zona canavieira de Pernambuco,” Clio, Recife 2 (26) (2008), 315, emphasis mine.

216

7 “Class Justice” between “the fields and factory”

never wins, not under any consideration,” said one resentful landowner.⁹⁷ Nevertheless, Sabóia demonstrated the contradictions in several judicial decisions, including decisions that went against the workers.⁹⁸ In October 1963, the largest rural strike ever witnessed in the state of Pernambuco occurred because the employers did not comply with the Statute. It mobilized around 200,000 workers linked to sugarcane planting, resulting in a major victory for the rural unions.⁹⁹ As a result, the planters started to employ huge contingents of casual workers because they were not covered by the ETR. The employers took advantage of that legal loophole, leading to a radical change in the system of labor exploitation in the countryside: the disappearance of the colonato system and the permanent use of temporary wage earners. Regarding the ETR’s role in this process, part of the literature has underestimated its scope because it is supposed that “in reality [the Statute] shows only the symbolic use of social policy,” since “the flow of social conflicts out of institutions inherited from the Estado Novo did not find a commensurate institutional response.” As I pointed out in the introduction to this book, that is what supposedly led to political polarization and the governmental and administrative paralysis that inevitably resulted in the 1964 coup.¹⁰⁰ But the ETR shows just the opposite: a series of struggles for the expansion of labor rights in the countryside found institutional outlets.¹⁰¹ It is true that, from the beginning of 1963 until the coup, those plotting to overturn the democratically elected government did not just attack the agrarian reform movements. They also targeted the rapid process of organizing rural workers and their gains in the field of labor rights in the countryside. Even in Pernambuco, where the Peasant Leagues took on a

 Saboia, De senhores a trocadores de cebola, 140 and 191.  Ibid., 191– 192; regarding the contradictions in the decisions, see chapter 5.  Lygia Sigaud, “Direito e coerção moral no mundo dos engenhos.” Estudos Históricos, Rio de Janeiro, 9 (18), 1996, 374; Pereira, “O declínio das Ligas,” 264.  Wanderley Guilherme dos Santos, Cidadania e justiça: a política social na ordem brasileira (Rio de Janeiro: Campus, 1979), 81. Other skeptical evaluations of the impacts of the ETR can be found in Manuel Correia de Andrade, Abolição e reforma agrária (São Paulo: Ática, 1987); José Marcelo M. Filho, “Entre ‘direitos’ e ‘justiça’: os trabalhadores do açúcar frente à Junta de Conciliação e Julgamento de Escada/PE (1963 – 1969).” In Cadernos de história: oficina de história. Trabalhadores em sociedades açucareiras, edited by Christine Rufino Dabat and Maria do Socorro de Abreu e Lima (Recife: Editora Universitária da UFPE, 2010).  Regarding the extension of the jurisdiction of the Labor Courts in the countryside in the Northeast since the enactment of the ETR, see Dabat, “Uma ‘caminhada penosa’”; Frank Luce, “O domínio da lei na região do cacau: a Justiça do Trabalho e o Estatuto do Trabalhador Rural.” In A Justiça do Trabalho e sua história: os direitos dos trabalhadores no Brasil, edited by Ângela de Castro Gomes and Fernando Teixeira da Silva (Campinas: Editora da Unicamp, 2013).

7 “Class Justice” between “the fields and factory”

217

mythical aura, the rural workers’ unions superseded them in 1963. Insofar as the Leagues preferred not to engage in unionization in the name of their institutional independence, they lost ground to the trade unions.¹⁰² And throughout the civilian-military dictatorship, thousands of lawsuits were filed claiming rights under the Rural Workers Statute, whose provisions were retroactive, recognizing a right acquired during the period of employment that preceded the enactment of that law.¹⁰³ It is worth emphasizing that the ETR and many of its offshoots were also the result of loopholes and precedents exploited daily in the courts, as I have been trying to demonstrate.

XIV Clearly the planters, both in their recollections and their day-to-day experience of being in charge, were not as dismissive of the role of the law and the courts as several Communist activists seem to have been in their memoirs. It was enough to threaten to take the employer to court, for him to see his power of command were being strongly questioned. Even the most radical proposals and mobilizations for Agrarian Reform, such as the Peasant Leagues, had to consider the “legalist” aspects of their struggles. Referring to the Common Courts, Francisco Julião argued that the great revolution that I was starting was nothing more than transferring the peasant from the door of the police chief to the door of the judge… The fact that the peasant went to court on the day of the hearing to sit in front of the landowner was already a tremendous step for him. Many said, “Look, sir, I can lose the case, but I’m already satisfied, because I saw colonel so-and-so in the presence of the judge, in my presence, in his presence, lying. He is so rich, [and he] doesn’t know how to lie. I, who am poor, went there and told the truth. So, with this thing of him lying in my presence, of him sitting there and being forced to lie, I’m already satisfied, I’ve already won my case. I don’t care if I leave the land.”¹⁰⁴

Of course he cared. But the fact is that this was a form of power that, if it was not completely eroded, had been shaken up and suffered public affronts, giving him symbolic and often material rewards, unlike the thousands of workers who did not go to court. Employers like Rezende might have sought and found certain emotional comfort in the paternalism of their “workers’ villages.” A house, a

 Pereira, “O declínio das Ligas Camponesas,” 245.  Saboia, De senhores a trocadores de cebola, 17.  Julião, “Entrevista,” 22.

218

7 “Class Justice” between “the fields and factory”

plot of land to farm, a pharmacy, milk, a movie theatre – all at a “low cost” – were supposed to demonstrate his benevolence, tolerance and commiseration. There was a certain moral coercion that demanded the absence of juridical coercion of employers.¹⁰⁵ Thus, for the planters, strikes and lawsuits seemed like expressions of ingratitude on the part of the “beneficiaries.”¹⁰⁶ More than that, certain customs and traditions that involved a dyadic relationship – that of owner and colono – were collectively appropriated. In fact, it is interesting to note how the words of the activist Irineu de Moraes swing back and forth between notions of gifts and rights: Almost all the plantations gave land to the colonos to farm, a plot of land to plant a garden, raise a pig – for subsistence. It was a free gift. The [Aguapeí plantation] did not give [those benefits]. So the claim was this: demanding a piece of land from the plantation.¹⁰⁷

As we can see, what was represented as a gift and unilateral liberality from the top, in exchange for loyalty and work, emerged as a right to be demanded from below. Instead of receiving the expected subordination of the recipient of “voluntary” gifts and the obligation of reciprocity in the form of gratitude, the duty to grant a right was imposed.¹⁰⁸ “Gifting” a piece of land became an obligation imposed by custom, an inherited expectation, subject to community sanctions that gave rise to the conflict.¹⁰⁹ The question becomes even more complex when the tribunal, which is public, comes between gifts, which are supposedly private, and rights, which are presumably collective. The anthropologist Margarida Maria Moura found a range of traditional relations in the Jequitinhonha Valley (Minas Gerais State), such as that of workers living on the property, which were disrupted through mass expulsions over the course of the 1970s. Moura demonstrates how court cases removed “litigation from the private sphere of the ‘dominium,’ projecting it into the public

 See Sigaud, “Direito e coerção moral,” 377.  A planter from Jaú gave the following statement: “You can’t even be good now… One day I settled a family on my plantation that had no job and was going hungry. And even without labor, I gave some small jobs to the caboclo, who was physically disabled. A few months later, he and his wife filed a lawsuit in the courts demanding different wages for the two of them, paid vacations, 13th month. I’ll have to pay everything. But from now on I only keep on the people I need; otherwise, I’ll have to sell the land.” Quoted in Stolcke, Cafeicultura, 179.  Welch and Geraldo, Lutas camponesas, 130 (emphasis mine).  E. P. Thompson, “Folclore, antropologia e história social.” In Idem, As peculiaridades dos ingleses e outros artigos (Campinas: Editora da Unicamp, 2012), 243 – 250.  About these issues, see also Idem, “Costume, lei e direito.” In Idem, Costumes em comum (São Paulo: Companhia das Letras, 1998).

7 “Class Justice” between “the fields and factory”

219

sphere of the tribunal.”¹¹⁰ The entire system of grace and favor came to be questioned at times of crisis, as in the case of the evictions, breaking with private compensatory logic that tended to be perpetuated during periods of greater social stability.¹¹¹ At the same time, “customs and traditions” had legal endorsement, as they were invoked in the courts as provided for in the Rural Workers Statute. It is important to note that in the Boards, which were the first instance, there was a tendency for judges’ decisions to go against the workers’ interests. Thus, whenever they were “defeated,” workers turned to the Regional Labor Court (TRT) in Belo Horizonte, the state capital of Minas Gerais, “because they believe that the distance from the local authorities worked in their [the workers’] favor.” In fact, the TRT’s decisions were almost always favorable to litigating workers. This reinforced their view that only the instances and authorities further removed from the local authorities, such as the courts in the state capital, the governor and the president of the Republic, could solve their problems fairly.¹¹² From that perspective, codified laws and written judgments were possible means of restoring the customary relations and rights suspended by the employers’ arbitrary measures, taken with the support of the local authorities, hence the importance of “written law” in the cultural universe of rural workers. Official work papers, for example, expressed a materiality that endowed the worker with identity and rights. In the agrarian milieu, “which ranks its members as citizens and non-citizens, the break in the [system of] favors could only be righted in one way: being identified by the papers, since it is impossible to be personalized by name.”¹¹³ In the situation of regime change in the months leading up to the civilianmilitary coup of 31st March, 1964, amid the massive mobilization and politicization of rural workers, favors were clearly experienced as domination and had to be negotiated on different terms. Thus, we must understand the radical changes in class relations in the countryside in the context of the political changes of the early 1960s, when labor disputes in the rural milieu struck fear into the large landowners. At that point, what was supposedly donated in a face-to-face rela-

 Margarida Maria Moura, Os deserdados da terra: a lógica costumeira e judicial dos processos de expulsão e invasão da terra camponesa no sertão de Minas Gerais (Rio de Janeiro, Bertrand Brasil, 1988), 166.  Lygia Sigaud sees the 1950s as the time when the rules regulating labor relations on the large sugar plantations of Pernambuco were broken, breaking with the paternalism according to which the planters owned and managed a high level of “capital of trust” with the workers. Sigaud, “Direito e coerção moral,” 373 – 374.  Moura, Os deserdados da terra, 169.  Ibid., 200.

220

7 “Class Justice” between “the fields and factory”

tionship had to become an agreement, a contract, preferably a collective one, leaving open the possibility that the disputed demands could be contested collectively and juridically. It was no longer enough to have traditions and permissions without rights established by laws and institutions that could interpret and “apply them.” The loss of non-monetary rights and their conversion into cash payments helped subordination give way to negotiation, even if the parties in the conflict had highly mismatched powers.¹¹⁴ As they increasingly resorted to the courts, rural workers became clearly aware that lawsuits could have contradictory results, both supporting and subordinating them. It is hard to say whether they harbored a cynical or merely opportunistic view of laws and justice, but they were certainly aware that they had to deal with both, because they valued positive legal norms in their lives. There is good reason for the mythology surrounding Vargas; as one former colono from the state of Rio de Janeiro said, “before he died, he [Vargas] left this here. He made a book [the CLT] and left it in writing.”¹¹⁵ The CLT was certainly not isonomic regarding the rights of urban and rural workers, and the ETR dates from the Goulart administration. Nevertheless, many former colonos from São Paulo situated the beginning of the process of their expulsion from the land in the period that began with the “murder” of Vargas, the president who, according to their memory, “decreed the rights”; “He [Vargas] left those laws, that a poor man was not a dog, that they cannot send a comrade away, that they have to pay compensation.”¹¹⁶ It was this culture of the law and rights – often anchored in an idealized memory of Vargas, albeit supported by social references that instituted rights – that enabled the Left to fulfill its aim of representing rural workers. Therefore, the next step is to unpack the question posed at the beginning of this chapter: what was the source of the disdain for the Labor Courts that Tenorinho nurtured in his autobiography? After all, he was probably unaware of the outcome of the TST case, but he was well aware that the TRT’s decision was entirely favorable to the demands of the federation he directed, cancelling the agreement between the Catholic-led union and the planter. More than that, although he was a habitué of the courts, he preferred to obscure that fact. A memory lapse, perhaps?

 In this regard, see E. P. Thompson, “Patrícios e plebeus.” In Idem, Costumes em comum, 42– 43.  Marcus Dezemone, Memória camponesa: conflitos e identidades em terras de café. Fazenda Santo Inácio – Trajano de Morais – RJ (1888 – 1987). Thesis (masters in History) – PPGH-UFF, Niterói, 2004, 216.  Stolke, Cafeicultura, 327 (emphasis mine).

7 “Class Justice” between “the fields and factory”

221

XV The memory left by the ruralists on the eve of 1964 and the beginning of dictatorial rule is much less disdainful about the impacts of social and union legislation during the Goulart administration. We do not know to what extent they recognized that the leftists were clearly committed to achieving agrarian reform by peaceful and legal means, seeking to neutralize more radical movements, such as the Peasant Leagues. In any case, if conservatives and coup leaders amplified slogans like “agrarian reform by law or by force” to legitimize the “sanitary” action of breaking with legalism in 1964, they also insisted that the laws and institutions protecting the rights of rural workers required corrective measures. They should have known that the main force of the movements and entities linked to the rural workers came from their own institutions, from alliances to strengthen the cause of agrarian reform in the National Congress and from the support they gained from the government and bodies such as the Labor Courts. The Sociedade Rural Brasileira (Brazilian Rural Society; SBR), which brought together major coffee, sugar and livestock fortunes in São Paulo, was emphatic about the need to “loosen up labor regulations” in the countryside.¹¹⁷ However, the memory of the Left sought to dispel its commitments to the institutions in which it was deeply immersed. Like Tenorinho, Irineu de Moraes was not at all flattering about the Labor Courts in his memoirs: I believed in the PCB as a revolutionary party, not as an evolutionary party… Father Celso was satisfied with that situation. His fight was peaceful and juridical. He took complaints to the lawyers and the courts. The masses didn’t like that very much… The legal struggle was slow.¹¹⁸

Father Celso Ibson de Syllos vied with the Communists inch by inch for the leadership of the rural workers of Alta Mogiana in the early 1960s. Throughout his vast experience of struggle, he moved from a conservative stance, from a rejection of the class struggle to more radical measures.¹¹⁹ That the parish priest encouraged workers to go to the labor courts, there is no doubt; however, the notion that the PCB did not engage in a “peaceful and juridical” struggle, supposedly because “the masses did not like that very much,” is based on Ireneu’s belief in the party’s revolutionary character. Here we have another mnemonic record that, if not properly contextualized and questioned, could lead his-

 Teixeira, “Sindicalismo rural e política,” chapter 1.  Welch and Geraldo, Lutas camponesas, 175.  Welch, A semente foi plantada, chapter 7.

222

7 “Class Justice” between “the fields and factory”

torians to draw hasty conclusions about the relationship between activists, the PCB and the “masses” on one side and the Labor Courts on the other. Perhaps it should not be forgotten that the Communists’ memories were decisively affected by the impact of the 1964 coup and the weight it exerted in assessing the history of the social movements that preceded it. At its Sixth Congress, held in 1967, the PCB issued the following mea culpa: The setback suffered in ‘64 exposed many of our weaknesses… It is an erroneous conception of the revolutionary process, with a petty-bourgeois and coupist background, and consists of seeing the revolution, not as a mass phenomenon, but the result of the actions of the leadership or the Party.¹²⁰

The party endured severe reductions in its ranks, hemorrhaging activists who left to form other leftist groups that would take up arms against the military dictatorship to the detriment of the PCB’s “reformist pacifism.” Even among those who remained loyal to the party, who continued to reject the “insurrectional solution,” there was a strong conviction that the Communists had taken the wrong path by preferring to work within institutional channels, the so-called toplevel union organizations, the State and corporative apparatus, disregarding a more consistent organization of their base of workers. It is not surprising that thousands of Labor Court cases were included in the list of factors that gave rise to the coup. Nothing could be expected from the tribunals, which were dominated by the elitism of their magistrates. Thus, once again, I turn to the observations of Irineu de Moraes: The peasants should not believe in the courts. Nothing came through the courts alone… The peasants were organized in an illegal phase, broke that business, started up organizations, raised direct demands: that was how they won and how the laws were obeyed.¹²¹

Although it is not clear to which period Irineu was referring, the important thing is to note that the positive side of the struggle lay entirely in “direct action.” Similarly, when referring to the strike at the Nova América plantation, Tenorinho stresses that he was confident “in the victories we were winning as a result of our efforts,” but in that strike, “there was no other way out”: they turned to the Labor Courts. The narrator seems to want to give the reader the idea that the tribunals were a marginal solution, “as a last resort”, because he, Tenório,

 Nogueira, PCB, 185.  Welch and Geraldo, Lutas camponesas, 175.

7 “Class Justice” between “the fields and factory”

223

“already knew the risk we ran in the famous class justice [system].”¹²² Furthermore, in his account, he repeatedly stresses his performance as someone who challenged authority, who made no concessions, such as the time when he confronted Judge Décio de Toledo Leite, the president of the TRT, accusing him of venality. In all the episodes involving Tenorinho and the Labor Courts, we find reports of open confrontation with the men of the law. By “winning a case” against the Cibus company, “at the doors of the Labor Court, which was located in Rua Rego Freitas… I got into a tremendous fight with the company’s lawyer.”¹²³ In the famous “Strike of the 700,000” in November 1963, as a leader of that movement, Tenorinho once again challenged the TRT, which he said had struck a blow against the trade union movement. In dialogical form, he recounts his interaction with the court: A reporter asked me, “”What do you say about that, sir?” I observed: “What I can say is that the court is playing its role as a branch of the Federation of Industries… because a lawsuit [brought by] a worker, who has spent 23 or 30 years with the same company, has been dragging on for five or six years and the court can’t find the time to judge it.”

That night, after trying “like mad” to find him, “our friend” Judge Carlos Figueiredo de Sá told Tenorinho that his interview had made a highly negative impact “because the television, radio and newspapers have been exploiting [the interview],” so the judges “were after my head.” Sá begged him, “For the love of God, Tenório, don’t appear in court on the trial date.” Judge Hélio Tupinambá Fonseca had told Sá he was carrying a gun. Given the threats, the Tenório decided that it would be better to steer clear of the courthouse. However, strangely enough, before he knew it, Where was I? In the office of the court secretary, who was Pimenta de Moura, our friend. He was shocked: “Tenório, what are you doing here? Those men want to kill you. Get out of here.” I left, but instead of going away, I stopped in the office of the vice president of the court. Ah! Then the judges in their gowns arrived to start the hearing. When the president of the court, Hélio Guimarães, saw me, he shouted, “Ah! Sir! Have you come to visit the branch of the Federation of Industries?” He was like a wild beast. So I said, “Today, sirs, you have a major opportunity to give me the lie. I want to be a liar…” But the man wanted to kill me! It was a mess, grab him, hold him. Surprise! Décio de Toledo Leite, the one who had revoked my credentials as lay judge, was

 Lima, Movimento sindical, 85.  Ibid., 52.

224

7 “Class Justice” between “the fields and factory”

vice president of the court that day, he came in and told the president, “Calm down. I know this man. That’s just the way he is. He’s honest, sincere, authentic, because this place is full of… He was the man who did this, this and this… He threw a lay judges’ certificate in my face. And you know that there hasn’t been a single lay judge here who hasn’t made the presidents of the court godfathers to their children, just to keep their posts? This man is independent, and we mustn’t turn this into a confrontation….” And that was that. The result of all that is that I was called into a meeting with the president of the court at his request so we could present a proposal.¹²⁴

We can ask for evidence that backs up this account, examine the gap between real episodes and reminiscence, but it is important to note that this dialogic style has the purpose of authenticating the events recounted, with kinetic effects (“grab him, hold him…”), gestures, repetitions and ambiance that lend vivacity to the dramatized narrative.¹²⁵ Moreover, the use of direct speech, in the form of dialogue, confers dramatic tension on the confrontation between the narrator and the authorities. This account exudes courage, disdain and challenge, composing a kind of narration that was widespread in the class culture of the workers: “authoritative accounts detailing the interaction of the narrator and some other person of higher social rank and power.”¹²⁶ The coldness and calculation of the authorities are contrasted with the narrator’s self-abnegation and sense of justice, composing a kind of moral tale in which the protagonist sacrifices his own interests on behalf of a higher cause. On one occasion, the TST upheld one of Tenório’s labor lawsuits against the Leite União milk company, coinciding with a strike he led: “I distributed the money that I received as compensation among the workers. At the time, it was a lot of money.”¹²⁷ At the same time, an authority recognizes that “That’s just the way he is. He’s honest, sincere, authentic…” The autobiographical genre, in fact, seems to demand repetition, the creative reiteration of identities that remain consistent over time. Throughout his memoir, Tenorinho emphasizes the lofty moral values that qualified him to challenge magistrates with remarkable verbal aggression. It is in the challenge set in a dialogical way that his individuality and moral rectitude gain expression, affirm their presence, are ennobled, while dazzling the interlocutor. Because they are authentic, his actions are avenging, stripping and sparring with authority. It is not by chance that Tenório’s entire book works

 Ibid., 88 – 91.  James, Doña María, 184. The analysis that follows on this type of account was inspired mainly by Chapter 2 of the third part of this book.  Ibid., 173.  Lima, Movimento sindical, 48.

7 “Class Justice” between “the fields and factory”

225

with the trope of audacity. The leitmotif of his narrative is the heroic character of his deeds. I venture to say that it is the work of memory that exorcises (self‐)attributed guilt for the coup of 1964 and, thus, views reliance on struggles in the courts as an irreparable historical mistake. A life largely devoted to the struggle for the expansion of labor laws in the countryside by (but not only by) the courts, might be seen as one of those uncomfortable elements which disturb the continuum of narrated events and the autobiographical consistency structured in reports of confrontations with the authorities. The experience of the 1964 coup lived under the banner of defeat and self-inflicted guilt is a threat to the stability of a life story. It puts paid to an entire system of interpretation and self-representation based on the consistency of a personal trajectory. Contradictory themes, memories and disturbing events with ambivalent meanings end up being omitted or sidestepped in a stabilizing and redemptive narrative. Having said all this, I do not mean that an activist like Tenório did not have all the qualities we expect from a fierce union and political activist: rebellious, honest, intrepid, making aggressive interventions, taking firm positions and mocking the authorities. Nor do I intend to argue that, at the time of the events recalled, he no longer saw the Labor Courts as a conservative, partial, classist institution. Much less do I want to deny that the courts have often acted that way. However, if I adopted Tenório’s memories as the guiding thread for research and writing, it was with the almost exclusive purpose of showing that any interpretation of the role and functioning of the Labor Courts that is based on the testimonies and reminiscences of former activists must consider the difficulties inherent in the construction of memories. Such accounts should not be taken as gospel without using other empirical mediations and comparisons. Since their inception, the Labor Courts were the target of ceaseless attacks by the Communists, structured in a public discourse that legitimized joining the Communist Party as a revolutionary option, impatient with the slow and halting pace of the legal struggle. No matter what position the PCB may taken in viewing the arena of the law and the courts as legitimate spaces of conflict, memoirs like Tenorinho’s will omit that fact. Similarly, they will gloss over a number of disputes filed by the activists themselves, many of which brought tangible material and immaterial benefits for the workers who were at the center of the leftists’ struggle to represent them in order to gain legitimacy for their actions and political aims. Thousands of workers could, in fact, view the law and courts with a broad spectrum of expectations ranging from frustration to idealization. Much more than that, however, they also afforded a real possibility of winning rights. This is not only because those “lower down” appropriated those spaces but also be-

226

7 “Class Justice” between “the fields and factory”

cause those “higher up” did not just exude cynicism, irresponsible improvisation, a conscious desire for immobility and a deceptive veneer of rhetorical and legal formalism. Hegemony has its reasons, of which memory knows nothing.

Conclusion The categories of labor law help to forge a collective identity primarily based on the opposing interests of employers and employees, and to bring the latter into a sense of belonging to the same community of “workers” Alain Supiot¹

I At this point, after slowly and carefully perusing the records of 500 cases, along with a dozen recent studies on the Brazilian Labor Courts, I am by no means persuaded by the arguments of a significant portion of the academic and legal literature on the subject, as presented in Chapter 1. I do not find anything convincing about the claims that legal jargon robbed the unions and workers of their ability to intervene in the judicial arena; that the judicialization of conflicts eliminated direct action and negotiations with the employers; that lay judges invariably voted in favor of the employers; that, due to their social backgrounds, career judges all behaved in the same fashion; that it was all a ritual without tangible benefits for the workers, removing the public sphere and political aims from the struggle for rights. This study has focused on the problem of normative power; on a Janus-faced model of labor relations. The path of “out-of-court” agreements was open to the trade unions, which chose to follow it, although it was often disadvantageous for a wide range of professional categories when we compare the results with those of disputes, particularly those which were preceded or accompanied by strikes. Certainly, in the months preceding the 1964 civilian-military coup, we were far from consigning the existence of a vaguely contractualist model in Brazil. On the contrary, even the option of direct, free, private, autonomous, voluntary negotiations, or any other name that one chooses to give them, was based on a set of legal norms. Deciding to take this route always depended on considerations about the greater or lesser viability of going to court, following legal parameters that were already well known to workers and employers. However, the fact that the civilian-military dictatorship straitjacketed the Labor Courts may be the best evidence of the advantages of workers’ use of normative power prior to 1964. Regarding wage increases after the coup, the Executive branch began setting the percentage to be adjusted annually, certainly not  Alain Supiot. Critique du droit du travail (Paris: Quadrige/PUF, 1994), 87. https://doi.org/10.1515/9783110638844-014

228

Conclusion

without pressure from business leaders. We find that indignant and distressed statements made after the establishment of the dictatorial regime in 1964 point out that the courts had not previously ruled in the “public interest.” Indeed, the normative powers of the courts were clearly favorable to workers in collective bargaining agreements in the run-up to the coup, just as they were creatively used by workers in industrial action and greatly expanded in the struggle to broaden the rights of rural workers. Not surprisingly, in addition to a particularly restrictive law on the right to strike, enacted as early as 1964 – as we have seen in chapter 6 – the criteria that the courts used to calculate wage increase indexes did not disappoint the formulators of the various decrees that resulted in a terrible “wage crunch” during the military regime and undermined the normative powers of the Labor Courts. After 1965, raises followed the formulas issued by the Executive branch, so the courts no longer had any influence on wage calculations, making collective bargaining a farce.² It was for this reason that in 1975, Roberto Rezende Puech pointed out, with his usual precision and perspicacity: with the ban on strikes… after the 1964 Revolution [sic], which even created compulsory calculations for wage increases, it became necessary to restore normative power on just terms.³

Thus, as far as the dictatorial period is concerned, we are looking at Labor Courts that were very close to the objectives for which the Magistratura del Lavoro was created, at least with regards to collective bargaining, as we saw in Chapter 3. Undoubtedly, neither institution was ever that similar in its attempts to make the “superior interests of production and nation” viable. This, however, did not occur without resistance from the courts and magistrates. At times, there was a clear conflict within the Labor Courts themselves. On one hand, on several occasions the TRT considered that the law, or its interpretation, should be changed in favor of what was considered to be justice, according to contextual changes. On the other hand, the TST proved to be more attached to the “literal” interpretation of legal norms and the doctrine of precedent, so much to the taste of the employers, whenever customary laws were in their favor. However, when their independence was threatened, especially after the coup,

 Kenneth S. Mericle, “Corporatist Control of the Working Class: Brazil”. In Authoritarianism and Corporatism in Latin America, edited by James Malloy (London: University of Pittsburgh Press, 1977), 329.  Luiz Roberto de R. Puech, Na vivência do direito social (São Paulo: Resenha Universitária, 1975), 96.

Conclusion

229

both judicial bodies repeatedly proclaimed their right to exercise normative power, struggling to avoid being subordinated to the decisions of the Executive branch.⁴ There was an open conflict of attributions, jurisdiction and, therefore, a power struggle between the Labor Courts and the military regime, although Executive orders ended up trumping labor magistrates’ decisions. Therefore, returning to the problem of comparing different systems of labor law (see chapters 2 and 3), it might be more useful to find the differences less in the weight attributed to corporatism and its origins, and more in the nature of the legislated model, which can exist in systems, whether corporatist or not, in democratic and dictatorial times.⁵ Furthermore, we have already noted that labor legislation and arbitration were and still are instruments of constant State regulation in several countries where corporatism has never existed or failed to take hold. In short, the offshoots of normative power have less to do with the “DNA” of its origins and much more to variables such as the political regime, the degree of organization and mobilization of workers, the educational background of the “operators” of the law, the judges’ legal-political conceptions, the weight of jurisprudence, conflicts of interest and differences within judicial institutions, the specificities of economic contexts and relations of force between different social and political agents.

II The final period of the dictatorship and the years immediately following are elucidating in this regard. In the late 1970s and early 1980s, the “New Trade Unionism” viewed normative power as a threat to stronger trade unions, which could achieve more gains through direct negotiation with employers without running the risk of lengthy employer appeals. To bolster the workers’ bargaining power, the New Trade Unionism leaders advocated a different system of labor relations, especially in the context of the Constituent Congress in 1988. Indeed, through strong public pressure, the Constitution enacted that year brought about major and favorable changes for the workers. The main achieve-

 Larissa R. Corrêa, “A ‘rebelião dos índices’: política salarial e Justiça do Trabalho na ditadura civil-militar (1964– 1968)”. In Justiça do Trabalho e sua história: os direitos dos trabalhadores no Brasil, edited by Ângela de Castro Gomes and Fernando Teixeira da Silva (Campinas: Editora da Unicamp, 2013).  Philippe Schmitter sounded that warning in “Still the Century of Corporatism?” In The New Corporatism: Social-Political Structures in the Iberian World, edited by Fredrick B. Pike and Thomas Stritch (London: University of Notre Dame, 1974).

230

Conclusion

ments include the extension of legal protection, such as the reduction of working hours to 44 per week, the unionization of civil servants, greater freedom of association and the right to strike, as well as the enormous expansion of the jurisdiction and authority of the Labor Courts. Nevertheless, despite such democratic advances, the trade union structure has remained virtually intact, maintaining, for example, the monopoly of legally established representation (union unity) and the intervention of the Labor Courts in individual and collective disputes.⁶ However, in practice, both the Labor Courts themselves and many unions have put normative power in the background, allowing free negotiation between the parties to prevail. Although, in the 1980s, the workers – especially those affiliated with the strongest representative entities – managed to maintain the achievement of rights at a high level, in the 1990s, the losses from collective bargaining were greater than the gains. For the trade union movement, that last decade was an era of flexibilization of rights, productive restructuring of companies and neoliberal policies that resulted in unemployment and a reduction in the number of strikes, the rate of unionization and the contents of clauses agreed in collective agreements. Furthermore, the proliferation of thousands of unions fostered by the Constitution, and company-by-company negotiations were responsible for the tremendous pulverization of labor agreements and contracts.⁷ As a result, according to certain assessments, New Trade Unionism went from “confrontation to conflictual cooperation,” and from outright rejection to a certain accommodation to the trade union structure.⁸

 Ricardo Antunes, “A era da informatização e a época da informalização: riqueza e miséria do trabalho no Brasil”. In Riqueza e miséria do trabalho no Brasil, edited by Ricardo Antunes (São Paulo: Boitempo, 2006); Marcio Pochmann, “Mudança e continuidade na organização sindical brasileira no período recente”. In Anselmo L. dos Santos, Carlos Alonso Barbosa de Oliveira e Jorge Mattoso (eds.). Crise e trabalho no Brasil (São Paulo: Scritta, 1996); Iram Jácome Rodriguez, “A trajetória do Novo Sindicalismo”. In Idem (ed.), O novo sindicalismo (Petrópolis: Vozes, 1999); Antônio Cruz, A janela estilhaçada: a crise do discurso do novo sindicalismo (Petrópolis: Vozes, 2000); Carlos Alonso Barbosa de Oliveira, “Contrato coletivo e relações de trabalho no Brasil”. In Idem (ed.), O mundo do trabalho: crise e mudança no final do século, edited by Carlos Alonso B. de Oliveira et al. (São Paulo: Scritta, 1994); Armando Boito Junior, O sindicalismo de Estado no Brasil: uma análise crítica da estrutura sindical (São Paulo: Hucitec, 1991).  Marcio Pochmann, “Adeus à CLT? O ‘eterno’ sistema corporativo de relações de trabalho no Brasil”. Novos Estudos CEBRAP, São Paulo, 50 (1998); Adalberto M. Cardoso and Telma Lage, As normas e os fatos (Rio de Janeiro: Editora da FGV, 2007); Francisco Luiz Salles Gonçalves, “A evolução dos acordos e conflitos no período recente do sindicalismo brasileiro (1977– 1993)”. In Oliveira, O mundo do trabalho.  Iram Jácome Rodrigues, “O sindicalismo brasileiro: da confrontação à cooperação conflitiva”. São Paulo em perspectiva, São Paulo, 9 (1995); Giovanni Alves, “Do “Novo Sindicalismo” à ‘concertação social’”. Revista de Sociologia e Política, Curitiba, 15 (2000).

Conclusion

231

Direct negotiations between capital and labor are no longer viewed as a panacea. According to a former New Trade Unionism activist, Edésio Passos, who was also a lawyer in some of the cases analyzed in this book, it is “impossible to speak of free negotiations, given the imbalance between the parties to the contract. Precisely for that reason, constitutional norms and laws, such as basic guarantees, are necessary and fundamental.”⁹ Especially for the less organized workers with reduced bargaining power, the Labor Courts were a space for protecting rights, and they demanded that those tribunals remain the chief arbiter in labor disputes.¹⁰ As for individual rights, in the 1990s the judicial system played “its role as the guardian of workers’ rights,” becoming “the most important instance in the defense of labor rights.” For example, the probability that workers in Rio de Janeiro would see their demands met between 1995 and 2000 ranged between 50 and 80 percent.¹¹ It is no wonder that, according to public opinion, the Labor Courts – as we have seen in chapter 1 – enjoy more legitimacy than the Common Courts.¹² However, in contrast with the explosion of litigiousness seen in individual disputes, since the 1990s the number of collective disputes has fallen and collective bargaining agreements are on the rise.¹³ In any case, it is still too soon to determine more precisely the impacts of Constitutional Amendment No. 45, enacted on 8th December, 2004, which limits the exercise of normative power. Nevertheless, one thing is clear – we are rapidly moving from “State corporatism” to a pluralistic legislated system.¹⁴ Normative powers may well have inhibited the practice of collective bargaining without State intervention. However, the impact of judicial decisions on the institute of collective bargaining in recent decades still lacks comprehensive

 Edésio Passos, “Os direitos dos trabalhadores: no limite da desconstituição do sistema legal de contratação do trabalho”. In Sindicalismo no Brasil: os primeiros 100 anos?, edited by José Reginaldo Inácio (Belo Horizonte: Crisália, 2007), 200.  Elina G. Pessanha and Reginal L. Morel, “Mudanças recentes no modelo de relações de trabalho no Brasil”. In Rodrigues, O novo sindicalismo.  Adalberto Cardoso and Telma Lage, “Desenho legal e desempenho real: Brasil”. In Instituições trabalhistas na América Latina: desenho legal e desempenho real, edited by Adalberto Cardoso et al. (Rio de Janeiro: Revan, 2006), 212.  Mario Grynspan, “Acesso e recurso à justiça no Brasil: algumas questões”. In Justiça e violência, edited by Dulci Pandolfi et al. (Rio de Janeiro: Editora da FGV, 1999), 99 – 113.  Almir Pazzianotto Pinto. 100 anos de sindicalismo (São Paulo: Lex Editora, 2007), 234– 237.  Eduardo Garuti Noronha, Entre a lei e a arbitrariedade: mercados e relações de trabalho no Brasil (São Paulo: LTR, 1999), 49 – 53.

232

Conclusion

study in Brazil.¹⁵ We can also conjecture that the difficulties of establishing a tradition of direct negotiation between employers and employees in Brazil are not limited to the normative powers of the courts but also result from other factors, such as the existence of abundant and detailed legislation and, above all, the employers’ long-standing refusal to enter into negotiations. A few years after Constitutional Amendment no. 45 limited normative powers, I turn once again to Edésio Passos, who recalls the role of the courts in the period we have been examining as follows: The uncertain fate of the Normative Powers of the Labor Courts is the characteristic present in the debates on this important institute of the history of Labor Law in our country. It was important in 1963, during the growing struggle of the workers and their union organizations for better wages, working and living conditions in our country.¹⁶

It is interesting to note that Passos directly associates normative powers with the workers’ growing struggle immediately prior to the coup. This combination resulted in a collective identity for workers that, to a great extent, was nurtured by the development of rights publicly recognized by a range of laws that were more or less uniform and applicable “to the workers” or even against them. In practice, their application was certainly highly complex and differentiated, but the very existence of juridically ruled and coordinated Labor Law gave wageearners an identity because of the specificity and a certain uniformity of the rights to which they were entitled. As Alain Supiot observes, “This collective identity was grounded on the unity and exclusivity of institutions and workers’ rights.”¹⁷ As expressed in the opening section of these final considerations, the categories of Labor Law have themselves helped forge feelings of belonging to a “community of workers.” In fact, while it could be exercised as a form of control, punishment and denial of rights, normative power was also an instrument that, by establishing rules known to all the participants involved in collective disputes, constituted a collective identity rooted in the opposition between “us” and “them.” Whatever the relationship between the legislated model and the sparse Brazilian tradition of exclusively direct negotiation between workers and employers, I would like to conclude that the judicialization of labor relations has become a powerful formative element shaping the Brazilian working class. Clashes in the

 Cf. Carlos Henrique Horn, “Negociações coletivas e o poder normativo da Justiça do Trabalho”. Dados, Rio de Janeiro 2 (49) (2006).  Passos, “Os direitos dos trabalhadores”, 205.  Supiot, Critique du droit du travail, 97.

Conclusion

233

labor tribunals also influenced the discursive aspect, constituting a narrative of rights and laws. The institutionalization of class conflict was at the root of the strong pressure that the workers’ movement applied at different junctures, changing the perception that the Labor Courts were merely an intermediary organization that was neutral or autonomous from social class. The reactions of the employers and workers to judicial decisions show that the courts had become a means of access to new political and social rights, forcing various actors to strengthen and modify the institutional foundations of the power to regulate labor conflicts. Over the course of its history, different administrations and political regimes have become attached to the Labor Courts, both as a paternalist model and restrictive force against rights and union activities, and as an inclusive institution representative of the world of work. We are therefore confronted with legal-political mechanisms that simultaneously associate collective domination, tutelage, participation and appropriation.

III In this regard, there are still some final words to say about the leading role of the workers’ movements in the coupist environment that characterized the last months of João Goulart’s administration. This, of course, is not a new subject, but as I pointed out in the Introduction, roughly speaking, there are two predominant interpretations. One view posits that, by mobilizing workers for eminently political ends, leftist groups and parties gave life and sustenance to corporatist institutions. Thus, they associated themselves with the “populist regime” that led them, along with the working class, to the same cliff edge as Goulart and everything he represented in March 1964. Another interpretation emphasizes that the corporatist institutions created during the first Vargas regime failed to buffer the conflicts that aggravated the political crisis during Goulart’s presidency, ending up in a polarization of forces that resulted in government paralysis and a fragile commitment to democracy. This is not the place to dissect these two theories, but it should be noted that such questions shed light on the endlessly raging controversy about the possibility (or promises) of “incorporating” workers into the legal world of rights. The hypothesis that I have raised points in another direction. Those involved in the coup conspiracies – obviously, among other factors already widely analyzed in the historiography – did not seem to admit the possibility that there were two interrelated movements: the expansion of rights through institutional channels

234

Conclusion

and that this was because the workers, their organizations and leaders began to take control – albeit partial and in some cases indirect – of the institutions originally created for them by others. As a great deal of historiography has shown in recent years, workers led by Communists and labor activists came to dominate not only the most important trade union entities, in their different degrees in the countryside and city, but also social security agencies, organizations parallel to the union structure and parliamentary coalitions, among a wide range of associations. Here, I have given precedence to the importance of the Labor Courts in the workers’ struggle for rights. Clearly, the “case” of the TRT of the Second Region cannot be generalized to the entire country, but we are dealing with the tribunal with the largest case load, located in the economic heart of the country, amid extraordinary worker mobilization. However, the judicial struggle for rights directly affects the problem of the effectiveness of labor legislation in Brazil. There is no doubt that it is and always has been limited. As we know, the scope of the Consolidation of Labor Laws can be summed up in the expression “anyone with a trade has benefits.”¹⁸ Either that or, according to the classic formulation of Wanderley Guilherme dos Santos, a “regulated citizenship” was instituted, that is, “citizens are all those members of the community who are located in any of the occupations recognized and defined by law.”¹⁹ According to this concept, the vast majority of workers were deprived of protection, since the “benefits” did not extend to the unemployed, and rural and domestic workers, who were generally left to their fate. Brodwin Fisher has shown in detail the enormous bureaucratic and social difficulties workers faced to obtain the papers necessary to “apply” for that citizenship, so, according to that author, the acquisition of rights became “privileges.”²⁰ Nevertheless, when pointing out the scope and limitations of these analyses, Adalberto Cardoso maintains that, even with all obstacles to the universalization of rights, “new citizenship” was created “where it had never existed.” The author further states that “labor and social legislation ended up establishing, in the environment in which it occurred, a legitimate field of dispute for facticity, whose legitimating matrix was the State itself.”²¹ I would add that theorists who recog-

 Angela de Castro Gomes. A invenção do trabalhismo (Rio de Janeiro: Vértice/IUPERJ, 1988).  Wanderley Guilherme dos Santos. Cidadania e justiça (Rio de Janeiro: Campus, 1979).  Brodwin Fisher, A Poverty of Rights: Citizenship and Inequality in Twentieth-Century Rio de Janeiro (Stanford: Stanford University Press, 2008).  Adalberto Cardoso, A construção da sociedade do trabalho no Brasil (Rio de Janeiro: Ed. FGV, 2010), 222– 223.

Conclusion

235

nize the presence of rights only at the boundary and by the hands of “consensual citizenship” or “regulated citizenship” have difficulty realizing that the struggles and gains achieved by certain groups that were better versed in workers’ rights ended up creating loopholes and precedents “that lay the foundations for the formulation of a more universalizing conception of social rights.”²² Without a doubt, the Labor Courts and the way the workers used them have contributed to that. What we have seen is the expansion of rights that directly impact “employers’ prerogatives” in labor relations. From within the institutions, workers were changing social relations based on authoritarianism and paternalism, as we have particularly seen in the case of rural workers. Perhaps more than grassroots reforms “by law or by force,” it was those everyday struggles that sharpened the reaction of the coupist forces, with business leaders playing a major role. Otherwise, why would some of the first moves of the military regime be to drastically reduce the reach of normative power, create a draconian strike law and put an end to the job stability that was also helping undermine traditional forms of labor exploitation in the countryside? So far, all this seems to have failed to change deep-rooted academic arguments that mainly stem from a double “memory of guilt” entrenched by the leftists: either the workers appear to collude with the machinery of domination, strengthening it until succumbing to and with it, or their struggles, like those of several other social groups, did not find this institutional outlet for their aspirations, so they went “outside” official spaces, leading to the paralysis of those spaces of representation. This mnemonic and historiographic version overlooks the capillarity of workers and their organizations in the most diverse places of representation of interests, finding in them an outlet and set of answers to expectations, promises and possibilities of the expansion of citizenship. This was a time of great tension focused on democratic struggles for rights in highly politicized terrain, because the place the State occupied demanded a political investment from social movements that is not found in other models of organization in the world of work. Thus, I believe I have demonstrated that, during the “long year of 1963,” the Labor Courts, in their own way and with all their limitations and uncertainties, took the opposite direction on the paths that would lead to the 1964 coup. Therefore, like the workers, those tribunals would be harshly punished by the military dictatorship, memory and the academy – a story that is just beginning to be told.

 Alexandre Fortes and Antonio Luigi Negro, “Historiografia e cidadania no Brasil”. In O Brasil republicano: o tempo do nacional-estatismo, edited by Jorge Ferreira and Lucília de Almeida Neves Delgado (Rio de janeiro: Civilização Brasileira, 2003, vol. 2), 203.

236

Conclusion

At the same time, this is also a story that has perpetuated and reinvented itself in the context of the 2016 coup against democracy and the workers’ struggle for rights. The primacy of the negotiated over the legislated, restrictions on the organization of social movements, growing social inequality, the dismantling of the CLT and the shrinking of the Labor Courts are once again on the agenda of the coup d’état, under the label of “labor reform” – a past that, once again, is anchored in the present with the watchword of “modernizing” labor relations.

Sources and Archives Tribunal Regional do Trabalho da 2ª Região/SP — Dissídios coletivos e homologações – 1963 – 1964. — DADOS estatísticos de movimentação de processos e eliminação de autos findos no TRT da 2a. Região. “Projeto de elaboração do Plano de Classificação e Tabela de Temporalidade de Documentos do TRT da 2a. Região.” São Paulo, 2006. — PROJETO de elaboração do Plano de Classificação e Tabela de Temporalidade de Documentos do TRT da 2a Região. “Quadro comparativo de algumas normas referentes à Gestão Documental da Justiça do Trabalho” n. d. (typewritten manuscript).

Tribunal Superior do Trabalho — Movimento Processual por Ano, http://www3.tst.jus.br/Sseest/JT1941/JTMovproc.htm

Biblioteca do Instituto de Filosofia e Ciências Humanas da UNICAMP Fundo Roberto Simonsen — FEDERAÇÃO DAS INDÚSTRIAS DO ESTADO DE SÃO PAULO (FIESP). Boletim informativo, São Paulo, 704, 1963. Boletim informativo, São Paulo, 106, 13 Mar. 1963. Boletim informativo, São Paulo, 731, 9 Oct. 1963.

Legal Documents and Writings Castro, Araújo. Justiça do Trabalho. Rio de Janeiro: Freitas Bastos, 1941. Castro, Augusto Viveiros de. A questão social. Rio de Janeiro: Livraria Editora Conselheiro Candido de Oliveira, 1920. Cesarino Júnior, Antônio Ferreira. Direito social brasileiro. Rio de Janeiro: Freitas Bastos, 1953. Chaves, Aloysio da Costa. Direito de greve. Belém: Imprensa Universitária do Pará, 1963. Ferreira, Waldemar. Princípios de legislação social e de direito Judiciário do trabalho. São Paulo: São Paulo Editora Limitada, 1938, vol. 1. Ferreira, Waldemar. Princípios de legislação social e de direito judiciário do trabalho. São Paulo: Freitas Bastos, 1939, vol. 2. Gomes, Orlando, and Elton F Gottschalk. Curso de direito do trabalho. São Paulo: Forense, 1971. Gottschalk, Elton F. Norma pública e privada no direito do trabalho. São Paulo: Livraria Acadêmica Saraiva & Cia., 1944.

https://doi.org/10.1515/9783110638844-015

238

Sources and Archives

Lacerda, Dorval. “Sentença Coletiva.” Boletim do Ministério do Trabalho, Indústria e Comércio, Rio de Janeiro, 135, Nov. 1945. Menezes, Geraldo Bezerra de. Dissídios coletivos do trabalho. Rio de Janeiro: Departamento de Imprensa Nacional, 1950. Menezes, Geraldo Bezerra de. Dissídios coletivos do trabalho e direito de greve. Rio de Janeiro: Borsoi, 1957. Menezes, Geraldo Bezerra de. O comunismo: crítica doutrinária. São Paulo: Ministério da Educação e Cultura/Instituto Nacional do Livro, 1974. Miranda, Pontes de. Comentários à Constituição de 1946. São Paulo: Max Limonad, 1993, vol. 5. Moraes, Evaristo de. Apontamentos de direito operário. São Paulo: LTr, 1971. Oliveira, Carreiro de. O direito de greve, s.l., n.p., 1958. Rangel, Leyla Castelo Branco, et al. Direito de greve. Brasília: Senado Federal/Serviço de informação Legislativa, 1964. Raselli, Alessandro. La Magistratura del Lavoro: giurisdizione ed azione. Padova: Cedam, 1934. Rosenstock-Franc, Louis. L′économie corporative fasciste en doctrine et en fait. Paris: J. Garnher, 1934. Vianna, Francisco José Oliveira. Problemas de direito sindical. Rio de Janeiro: Max Limonad, 1943. Vianna, Francisco José Oliveira. Direito do trabalho e democracia social. São Paulo: José Olympio, 1951. Vianna, Francisco José Oliveira. Problemas de direito corporativo. Brasília: Câmara dos Deputados, 1983. Vianna, Francisco José Oliveira. “Razões da originalidade do sistema sindical brasileiro.” In: Idem, Ensaios inéditos. Campinas: Editora da Unicamp, 1991.

Newspaper Articles “Alternativas para diminuir o excesso de processos trabalhistas.” O Estado de S. Paulo, February 25, 2007. Catharino, José Martins. “Proteção ao trabalhador rural no Brasil.” Legislação do Trabalho, Rio de Janeiro, 83 – 84, vol. 8, March/April 1944. Diário de Justiça, 152, August 17, 2011. Folha de São Paulo, September 24, 2006. Frey, John P. “You Can’t Eliminate Strikes.” American Federationist 52, November 1945. In Compulsory Federal Arbitration of Labor Disputes, edited by Julia Johnsen, 256. New York: The H. W. Wilson Company, 1947. Martins, Ibiapaba. “Proletariado e Inquietação Rural.” Revista Brasiliense, São Paulo, 42 (1962). Prado Junior, Caio. “O Estatuto do Trabalhador Rural.” Revista Brasiliense, São Paulo, 47, 1963. Shiskin, Boris. “The Case against Compulsory Arbitration.” American Federationist, 54, February 1947. In Compulsory Federal Arbitration of Labor Disputes, edited by Julia Johnsen. New York: The H. W. Wilson Company, 1947.

Resolutions

239

Silva, Lindolfo. “Previdência Social para os trabalhadores na lavoura de cana.” Terra Livre, São Paulo, August 13, 1962. Terra Livre, São Paulo, 107 (1962) and 108 (1962). Transporte Moderno, Rio de Janeiro 1 (6) (1964). Viana, Cícero. “Conheça seus direitos.” Terra Livre 124 (1963). Wunderlich, Frieda. German Labor Courts. Chapel Hill: The University of North Carolina Press, 1946.

Legislation Decreto 1 (637), 5 January 1907. Decreto 21.396, 12 May 1932. Decreto 22.132, 25 November 1932. Lei 38, 4 April 1935. Decreto-lei 1.237, 2 May 1939. Decreto-lei 9.040, 15 March 1946. Lei 4.214, 2 March 1963. Lei 6.014, 11 January 1973. Lei 7.627, 10 November 1987. Lei 8.159, 8 January 1991. Emenda Constitucional 45, 30 December 2004. Lei 11.419, 19 December 2006. Brasil. Conselho da Justiça Federal, Resolução 359, anexo III, 29 March 2004.

Resolutions “Carta do Recife”. In III Encontro Nacional da Memória da Justiça do Trabalho, edited by Eneida Melo C de Araújo et al. Recife: Nossa Livraria, 2008. “Resoluções aprovadas por consenso – plenária”. In I Encontro sobre a Memória da Justiça do Trabalho. Porto Alegre, 7 November 2006.

Bibliography Aaron, Benjamin. “The NLRB, Labor Courts, and Industrial Tribunals: A Selective Comparison.” Industrial and Labor Review 1 (39) (1985), 35 – 45. Adinolfi, Goffredo. “O corporativismo na ditadura fascista italiana.” In A vaga corporativista: corporativismo e ditaduras na Europa e na América Latina, edited by Antonio Costa Pinto, and Francisco Palomanes Martinho. Lisbon: Imprensa de Ciências Sociais, 2016, 41 – 60. Alffonso, Rocco d′. Construire lo stato forte. Milão: FrancoAngeli, 2004. Alves, Giovanni. “Do ‘Novo Sindicalismo’ à ‘concertação social’.” Revista de Sociologia e Política, Curitiba, 15, November 2000. Andrade, Manuel Correia de. Abolição e reforma agrária. São Paulo: Ática, 1987. Antunes, Ricardo. “A era da informatização e a época da informalização: riqueza e miséria do trabalho no Brasil.” In Riqueza e miséria do trabalho no Brasil, edited by Ricardo Antunes. São Paulo: Boitempo, 2006, 15 – 25. Arida, Pérsio, Edmar Bacha, André Lara Resende, and Armando Castelar Pinheiro. “Credit, Interest, and Jurisdictional Uncertainty: Conjectures on the Case of Brazil.” In Inflation Targeting, Debts, and the Brazilian experience, 1999 to 2003, edited by Francesco Giavazzi, Ilan Goldfajn, and Santiago Herrera. Cambridge: MIT Press, 2005, 265 – 293. Atleson, James B. Values and Assumptions in American Labor Law. Amherst: The University of Massachusetts Press, 1983. Azevedo, Fernando A. As Ligas Camponesas. Rio de Janeiro: Paz e Terra, 1983. Bandeira, Luiz Alberto Moniz. O governo João Goulart: as lutas sociais no Brasil, 1961 – 1964. São Paulo: Editora da Unesp, 2010. Barreto, Tulio Velho. “O debate recente acerca da representação classista na Justiça do Trabalho.” Cadernos de Estudos Sociais 2 (11) (1995), 177 – 197. Barreto, Tulio Velho. “Os juízes classistas na berlinda.” Política Hoje 7 (4) (1997). Barriguelli, José C. “Conflito e participação no meio rural: a greve da Usina Nova América, 1962.” In Anais do VIII Simpósio Nacional de Professores Universitários de História, edited by Eurípedes Simões de Paula. São Paulo: FFLCH-USP, 1976. Barros, Fátima Regina de. Organização sindical dos trabalhadores rurais: contribuição ao estudo do caso do estado de São Paulo entre 1945 – 1964. Thesis (masters in Social Science) – PPGCS/Unicamp, Campinas, 1986. Battente, Saverino. Alfredo Rocco: dal nazionalismo al fascismo, 1907 – 1935. Milão: Franco Angeli, n.d. Bercovici, Gilberto. “Tentativa de instituição da democracia de massas no Brasil: responsabilidade constitucional e direitos sociais na Era Vargas (1930 – 1964).” In História do direito em perspectiva: do Antigo Regime à modernidade, edited by Ricardo Marcelo Fonseca, and Airton Cerqueira Saelaender. Curitiba: Juruá Editora, 2010. Biavaschi, Magda et al. (eds.). Memória e preservação de documentos: direitos do cidadão. São Paulo: LTr, 2007. Biavaschi, Magda. O Direito do Trabalho no Brasil. São Paulo: LTr, 2007. Biavaschi, Magda. “Justiça do Trabalho e terceirização: um estudo a partir dos processos judiciais.” In A Justiça do Trabalho e sua história: os direitos dos trabalhadores no Brasil, edited by Ângela de Castro Gomes, and Fernando Teixeira da Silva. Campinas: Editora da Unicamp, 2013. https://doi.org/10.1515/9783110638844-016

Bibliography

241

Blankenburg, Erhard, and Ralf Rogowski. “German Labour Courts and the British Industrial Tribunal System.” Journal of Law and Society 1 (13) (1986). Boito Junior, Armando. O sindicalismo de Estado no Brasil: uma análise crítica da estrutura sindical. São Paulo: Hucitec, 1991. Boschi, Renato R, and Maria Regina Soares de Lima. “O Executivo e a construção do Estado no Brasil: do desmonte da Era Vargas ao novo intervencionismo regulatório.” In A democracia e os três poderes no Brasil, edited by Luiz Werneck Vianna. Belo Horizonte: Editora da UFMG; Rio de Janeiro: IUPERJ/Faperj, 2002. Bourdieu, Pierre. “A força do direito: elementos para uma sociologia do campo jurídico.” Idem O poder simbólico. Rio de Janeiro: Bertrand Brasil, 2007. Brant, Vinícius Caldeira. “Do colono ao boia-fria: transformações na agricultura e constituição do mercado de trabalho na Alta Sorocabana de Assis.” Estudos CEBRAP, São Paulo, 19 (1977). Bresciani Maria Stella. O charme da ciência e a sedução da objetividade: Oliveira Vianna entre os intérpretes do Brasil. São Paulo: Editora da Unesp, 2005. Brody, David. “Free Labor, Law, and American Trade Unionism.” In Terms of Labor: Slavery, Serfdom, and Free Labor, edited by Stanley Engerman. Stanford: Stanford University Press, 1999. Bulla, Beatriz et al. (eds.). Justiça do Trabalho: 70 anos de direitos. São Paulo: Alameda, 2011. Camargo, Ana Maria. “Política arquivística e historiografia no Juciciário”. In I Seminário de política e memória institucional e historiografia. Porto Alegre, 12 September 2002. Campanini, Andrei Felipe. Entre usos e abusos do direito de greve: Assembleia Constituinte de 1946 e paralisação do trabalho. Thesis (masters in History) – IFCH-Unicamp, Campinas, 2015. Campanini, Andrei Felipe. “A greve (en)contra a Justiça: trabalhadores, ação direta e cortes trabalhistas, 1954 – 1963,” Campinas, 2012. Final report for Scientific Initiation (Fapesp). Cappelletti, Mauro. Juízes legisladores? Porto Alegre: Sergio Antonio Fabris Editor, 1993. Cardoso, Adalberto Moreira. A construção da sociedade do trabalho no Brasil. Rio de Janeiro: Ed. FGV, 2010. Cardoso, Adalberto Moreira. A década neoliberal e a crise dos sindicatos no Brasil. São Paulo: Boitempo, 2003. Cardoso, Adalberto Moreira. “Direito do trabalho e relações de classe no Brasil contemporâneo.” In A democracia e os três poderes no Brasil, edited by Luiz Werneck Vianna. Belo Horizonte: Rio de Janeiro, 2002. Cardoso, Adalberto Moreira, and Telma Lage. “Desenho legal e desempenho real: Brasil.” In Instituições trabalhistas na América Latina: desenho legal e desempenho real, edited by Adalberto Moreira Cardoso et al. Rio de Janeiro: Revan, 2006. Cardoso, Adalberto Moreira, and Telma Lage. As normas e os fatos: desenho e efetividade das instituições de regulação do mercado de trabalho no Brasil. Rio de Janeiro: Editora da FGV, 2007. Carvalho, José Murilo de. Cidadania no Brasil: o longo caminho. Rio de Janeiro: Civilização Brasileira, 2001. Castel, Robert. Les métamorphoses de la question sociale. Paris: Galimard, 1995. Castoriadis, Cornelius. A experiência do movimento operário. São Paulo: Brasiliense, 1985. Certeau, Michel de. A escrita da história. Rio de Janeiro: Forense Universitária, 1982.

242

Bibliography

Chalhoub, Sidney. Trabalho, lar e botequim: o cotidiano dos trabalhadores no Rio de Janeiro na belle époque. São Paulo: Brasiliense, 1986. Chalhoub, Sidney. Visões da liberdade: uma história das últimas décadas da escravidão na Corte. São Paulo: Companhia das Letras, 1990. Chalhoub, Sidney, and Fernando Teixeira da Silva. “Sujeitos no imaginário acadêmico: escravos e trabalhadores na historiografia brasileira desde os anos 1980.” Cadernos AEL, Campinas, 26 (14) (2009). Chaves, Marcelo Antonio. A trajetória do Departamento Estadual do Trabalho e mediação das relações de trabalho (1911 – 1937). São Paulo: LTr, 2012. Cohen, Lisabeth. Making a New Deal: Industrial Workers in Chicago, 1919 – 1939. Cambridge: Cambridge University Press, 1990. Colistete, Renato P. “Salários, produtividade e lucros na indústria brasileira, 1945 – 1978.” Revista de Economia Política, São Paulo, 29 (2009). Colistete, Renato P. “Trade Unions and the ICFTU in the Age of Development in Brazil, 1953 – 1962.” Hispanic American Historical Review 4 (92) (2012). Corrêa, Larissa R. “A ‘greve dos 700 mil’: negociações e conflitos na Justiça do Trabalho. São Paulo, 1963.” História Social, Campinas, 14 – 15 (2008). Corrêa, Larissa R. Disseram que voltei americanizado: relações sindicais Brasil – Estados Unidos na Ditadura Civil-Militar. Campinas: Editora da Unicamp, 2017. Corrêa, Larissa R. A tessitura dos direitos: patrões e empregados na Justiça do Trabalho, 1953 a 1964. São Paulo: LTr, 2011. Corrêa, Larissa R. “A ‘rebelião dos índices’: política salarial e Justiça do Trabalho na ditadura civil-militar (1964 – 1968).” In A Justiça do Trabalho e sua história: os direitos dos trabalhadores no Brasil, edited by Ângela de Castro Gomes, and Fernando Teixeira da Silva. Campinas: Editora da Unicamp, 2013. Correa, Mariza. Morte em família: representações jurídicas de papéis sexuais. Rio de Janeiro: Graal, 1983. Costa, Hélio da. Em busca da memória: Comissão de fábrica, partido e sindicato no pós-guerra. São Paulo: Scritta, 1995. Costa, Vanda Maria. A armadilha do Leviatã. Rio de Janeiro: Editora da UERJ, 1999. Cottereau, Alain. “Cent quatr-vints années d′activité prud′homale.” Le Mouvement Social, Paris, 141 (1987). Couton, Philippe. “A Labor of Laws: Courts and the Mobilization of French Workers.” Politics & Society 3 (32) (2004). CPDOC/ISER. Lei, justiça e cidadania: direitos, vitimização e cultura política na região metropolitana do Rio de Janeiro (sinopse dos resultados da pesquisa). Rio de Janeiro: n.p., 1997. Cruz, Antônio. A janela estilhaçada: a crise do discurso do novo sindicalismo. Petrópolis: Vozes, 2000. Dabat, Christine Rufino. “Os arquivos do TRT da 6ª. Região enquanto fonte para a história social de Pernambuco.” In III Encontro Nacional da Memória da Justiça do Trabalho, edited by Eneida Melo C. de Araújo et al. Recife: Nossa Livraria, 2008. Dabat, Christine Rufino. “Uma ‘caminhada penosa’: a extensão do direito trabalhista à zona canavieira de Pernambuco.” Clio, Recife, 2 (26) (2008). Dahrendorf, Ralf. As classes e seus conflitos na sociedade industrial. Brasília: Editora da UNB, 1982.

Bibliography

243

Delgado, Lucília de Almeida Neves. PTB: do getulismo ao reformismo (1945 – 64). Rio de Janeiro: Marco Zero, 1989. Delgado, Lucília de Almeida Neves. “Trabalhadores na crise do populismo: utopia e reformismo.” In 1954: visões críticas do golpe: democracia e reformas no populismo, edited by Caio Navarro Toledo. Campinas: Editora da Unicamp, Delgado, Lucília de Almeida Neves. “Trabalhismo, nacionalismo e desenvolvimentismo: um projeto para o Brasil.” In O populismo e sua história, edited by Jorge Ferreira. Rio de Janeiro: Civilização Brasileira, 2001. Delgado, Lucília de Almeida Neves. O Comando Geral dos Trabalhadores no Brasil: 1961 – 1964. Petrópolis: Vozes, 1986. Dezemone, Marcus. Memória camponesa: conflitos e identidades em terras de café. Fazenda Santo Inácio – Trajano de Morais – RJ (1888 – 1987). Thesis (masters in History) – PPGH-UFF, Niteroi, 2004. Dezemone, Marcus. “Legislação social e apropriação camponesa: Vargas e os movimentos rurais.” Estudos Históricos 21 (2008). Dezemone, Marcus. “A Era Vargas e o mundo rural brasileiro: memória, direitos e cultura política camponesa.” In Formas de resistência camponesa: visibilidade e diversidade ao longo da história, edited by Márcia Motta, and Paulo Zarth. São Paulo: Editora da Unesp; Brasília: Ministério do Desenvolvimento Agrário, 2009. Dinius, Oliver. “Brazilian Labor Courts and Industrial Relations under State Capitalism.” Paper presented at the European Social Science History Conference, Lisbon, 29 Feb. 2008. Dinius, Oliver, and Angela Vergara. Company Towns in the Americas: Landscape, Power, and Working-Class Communities. Athens, Georgia: University of Georgia Press, 2011. Donzelot, Jacques. L’ invention du social. Paris: Fayard, 1984. Droppa, Alisson. “Tempos de mudanças: a lei de greve e suas implicações nos movimentos paredistas.” Porto Alegre, 1912 (typed manuscript). Droppa, Alisson. Direitos trabalhistas: legislação, Justiça do Trabalho e trabalhadores no Rio Grande do Sul, 1958 – 1964. Dissertation (PhD in History) – PPGH – Unicamp, Campinas, 2015. Erickson, Kenneth Paul. Sindicalismo no processo político no Brasil. São Paulo: Brasiliense, 1979. Esteves, Martha de Abreu. Meninas perdidas: os populares e o cotidiano do amor no Rio de Janeiro da ‘belle époque.’ Rio de Janeiro: Paz e Terra, 1989. Fausto, Boris. Crime e cotidiano: a criminalidade em São Paulo, 1880 – 1924. São Paulo: Brasiliense, 1984. Ferrão, Brisa Lopez de Mello and Ivan César Ribeiro. “Os juízes brasileiros favorecem a parte mais fraca?” Revista de Direito Administrativo 244 (2007). Ferreira, Jorge. O imaginário trabalhista. Getulismo, PTB e cultura popular (1945 – 1964). Rio de Janeiro: Civilização Brasileira, 2005. Ferreira, Jorge. João Goulart: uma biografia. Rio de Janeiro: Civilização Brasileira, 2011. Ferreira, Jorge. “O governo Goulart e o golpe de 1964.” In O Brasil republicano: o tempo do nacional-estatismo, edited by Jorge Ferreira, and Lucília de Almeida N. Delgado. Rio de Janeiro: Civilização Brasileira, 2003, vol. 3. Ferreira Filho, José Marcelo M. “Entre ‘direitos’ e ‘justiça’: os trabalhadores do açúcar frente à Junta de Conciliação e Julgamento de Escada/PE (19631969).” In Cadernos de história:

244

Bibliography

oficina de história. Trabalhadores em sociedades açucareiras, edited by Christine Rufino, Abreu Dabat, and Maria do Socorro de Lima. Recife: Editora da UFPE, 2010. Fink, Leon. “Where the Grass is Greener: International Influences on the Formation of National Labor Laws.” Paper presented at the II Seminário Internacional Mundos do Trabalho, Rio de Janeiro, 30 November 2012. Fink, Leon. “Labor’s Search for Legitimacy,” In idem, Long Gilded Age: American Capitalism and the Lesson of a New World Order. Philadelphia: University of Pennsylvania Press, 2015. Fink, Leon. “Labor, Liberty and the Law: Trade Unionism and the Problem of the American Constitutional Order.” Journal of American History 3 (74) (1987). Fink, Leon, and Juan Manuel Palacio (eds.). Labor Justice across the Americas. Illinois: The University of Illinois Press, 2018. Fisher, Brodwin. A Poverty of Rights: Citizenship and Inequality in Twentieth-Century Rio de Janeiro. Stanford: Stanford University Press, 2008. Fonesca, Ricardo Marcelo, and Airton Cerqueira Leite Seelaender (eds.). História do direito em perspectiva: do Antigo Regime à modernidade. Curitiba: Juruá Editora, 2010. Fontes, Paulo. Trabalhadores e cidadãos – Nitro Química: a fábrica e as lutas operárias nos anos 50. São Paulo: AnnaBlume – Sindicato dos Trabalhadores Químicos e Plásticos de São Paulo, 1997. Fontes, Paulo. Um Nordeste em São Paulo: trabalhadores migrantes em São Miguel Paulista (1945 – 1966). Rio de Janeiro: Editora da FGV, 2008. Fornazieri, Ligia Lopes. Entre conflitos e debates: a construção dos direitos trabalhistas no Brasil (1934 – 1945). Thesis (masters in History) – IFCH-Unicamp, Campinas, 2014. Forst, Rainer. Contextos da justiça: filosofia política para além de liberalismo e contratualismo. São Paulo: Boitempo, 2010. Fortes, Alexandre. “Como era gostoso meu pão francês: a greve dos padeiros de Porto Alegre (1933 – 1934).” Anos 90, Porto Alegre 7 (1997). Fortes, Alexandre, and Antonio Luigi Negro. “Historiografia e cidadania no Brasil.” In O Brasil republicano: o tempo do nacional-estatismo, edited by Jorge Ferreira, and Lucília de Almeida N. Delgado. Rio de Janeiro: Civilização Brasileira, 2003, vol. 2. Fraser, Steven. Labor Will Rule: Sidney Hillman and the Rise of American Labor. Ithaca and London: Cornell University Press, 1991. Fraser, W. Hamish. A History of British Trade Unionism, 1700 – 1998. London: Macmillan Press, 1999. French, John D. Afogados em leis: a CLT e a cultura política dos trabalhadores brasileiros. São Paulo: Editora da Fundação Perseu Abramo, 2001. French, John D. Drowning in Laws: Labor Law and Brazilian Political Culture. Chapel Hill: The University of North Caroline Press, 2004. Fudgee, Judy, and Eric Tucker. Labour Before the Law: The Regulation of Worker’s Collective Action in Canada, 1900 – 1948. Toronto/London: University of Toronto Press, 2004. Gacek, Stanley Arthur. Sistemas de relações de trabalho: exame dos modelos Brasil-Estados Unidos. São Paulo: LTr, 1994. Galvão, Andréia, et al. (eds.). Dossiê reforma trabalhista. Campinas: GT Reforma Trabalhista CESIT/IE (UNICAMP), 2017. Garapon, Antoine. O guardador de promessas: justiça e democracia. Lisbon: Instituto Piaget, 1998.

Bibliography

245

Gaspari, Elio. “O viés dos juízes pelos pobres é lenda.” Folha de S. Paulo, 4 February 2007, Caderno A. Gentile, Fabio. “O corporativismo fascista e sua influência na legislação trabalhista brasileira dos anos trinta.” Paper presented at the 7º Encontro dos Seminários de Sociologia, Política e História do Programa de Pós-Graduação em Sociologia da USP, 29 November 2012. Gentile, Fabio. “Uma apropriação criativa. Fascismo e corporativismo no pensamento de Oliveira Vianna.” In A vaga corporativista: corporativismo e ditaduras na Europa e na América Latina, edited by Antonio Costa Pinto, and Francisco Palomanes Martinho. Lisbon: Imprensa de Ciências Sociais, 2016. Gibson, Dale. “Collective Labour Law in Canadá, 1812 – 1892.” In The Rise and Development of Collective Labour Law, edited by Marcel van der Linden, and Richard Price. Bern; Brussels; Frankfurt; New York; Vienna: Lang, 2000. Ginzburg, Carlo. O queijo e os vermes. São Paulo: Companhia das Letras, 1987. Gnaccarini, José César. Latifúndio e proletariado: formação da empresa e relações de trabalho no Brasil rural. São Paulo: Polis, 1980. Gomes, Ângela de Castro. “Questão social e historiografia no Brasil do pós-1980: notas para um debate.” Estudos Históricos 34 (2004). Gomes, Ângela de Castro. “Retrato falado: a Justiça do Trabalho na visão de seus magistrados.” Estudos Históricos 37 (2006). Gomes, Ângela de Castro. O Tribunal Regional do Trabalho da 1ª Região e a Justiça do Trabalho no Brasil. Rio de Janeiro: TRT-Rio, 2006. Gomes, Ângela de Castro. A invenção do trabalhismo. Rio de Janeiro: Vértice/IUPERJ, 1988. Gomes, Ângela de Castro. “A práxis corporativista de Oliveira Vianna.” In O pensamento de Oliveira Vianna, edited by Élide Rugai Bastos et al. Campinas: Editora da Unicamp, 1993. Gomes, Ângela de Castro. “Justiça do Trabalho e trabalho análogo a de escravo no Brasil: experiências, limites e possibilidades.” In A Justiça do Trabalho e sua história: os direitos dos trabalhadores no Brasil, edited by Ângela de Castro Gomes, and Fernando Teixeira da Silva. Campinas: Editora da Unicamp, 2013. Gomes, Ângela de Castro, Regina de Moraes Morel, and Elina G. da Fonte Pessanha. “Perfil da magistratura do Trabalho no Brasil.” In Direitos e cidadania: justiça, poder e mídia, edited by Angela de Castro Gomes. Rio de Janeiro: Editora da FGV, 2007. Gomes, Ângela de Castro, and Elina G. da Fonte Pessanha. Trajetórias de juízes. Porto Alegre: Alegre Poa, 2010. Gomes, Ângela de Castro, Elina G. da Fonte Pessanha, and Regina de Moraes Morel (eds.). Arnaldo Süssekind: um construtor do direito do trabalho. Rio de Janeiro: Renovar, 2004. Gomes, Ângela de Castro, and Fernando Teixeira da Silva. “Os direitos sociais e humanos dos trabalhadores no Brasil: a título de apresentação.” In A Justiça do Trabalho e sua história: os direitos dos trabalhadores no Brasil, edited by Ângela de Castro Gomes, and Fernando Teixeira da Silva. Campinas: Editora da Unicamp, 2013. Gomes, Ângela de Castro, and Fernando Teixeira da Silva. “Labor Courts in Brazil: Origins, Challenges, and Expansion.” In Labor Justice across the Americas, edited by Leon Fink, and Juan Manuel Palacio. Illinois: The University of Illinois Press, 2018.

246

Bibliography

Gonçalves, Francisco Luiz Salles. “A evolução dos acordos e conflitos no período recente do sindicalismo brasileiro (1977 – 1993).” In O mundo do trabalho: crise e mudança no final do século, edited by Carlos Alonso B. de Oliveira. São Paulo: Scritta, 1994. Gordon, Colin. New Deal: Business, Labor, and Politics in America, 1920 – 1935. New York: Cambridge University Press, 1994. Grandin, Greg. Fordlândia: ascensão e queda da cidade esquecida de Henri Ford na selva. Rio de Janeiro: Rocco, 2010. Green, William J. Labor. Market Politics and the Great War: The Department of Labor, and the First U.S. Employment Service, 1907 – 1933. Kent: The Kent State University Press, 1997. Greenwald, Richard. The Triangle Fire, the Protocols of Peace, and Industrial Democracy in Progressive Era New York. Philadelphia: Temple University Press, 2005. Lima, Luiz Tenório de. Movimento sindical e luta de classes. São Paulo: Oliveira Mendes, 1998. Limoncic, Flávio. Os inventores do New Deal: estado e sindicatos no combate à Grande Depressão. Rio de Janeiro: Civilização Brasileira, 2009. Linden, Marcel van der. Trabalhadores do mundo: ensaios para uma história global do trabalho. Campinas: Editora da Unicamp, 2013. Linden, Marcel van der. “Globalizando a historiografia das classes trabalhadoras e dos movimentos operários: alguns pensamentos preliminares.” Trajetos. Revista de História UFC 2 (1) (2002). Linden, Marcel van der. “História do trabalho para além das fronteiras.” Cadernos AEL 29 (17) (2010). Linebaugh, Peter. The London Hanged: Crime and Civil Society in the Eighteenth Century. Cambridge: Cambridge University Press, 1992. Linhares, Maria Yedda, and Francisco Carlos Teixeira da Silva. Terra prometida: uma história da questão agrária no Brasil. Rio de Janeiro: Campus, 1999. Lispector, Clarice. Felicidade clandestina. Rio de Janeiro: Rocco, 1998. Lopes, José Sérgio Leite. A tecelagem dos conflitos de classe na “cidade das chaminés.” São Paulo: Marco Zero, 1988. Lothian, Tamara. “The Political Consequences of Labor Law Regimes: The Contractualist and Corporatist Models Compared.” Cardozo Law Review 4 (7) (1986). Lothian, Tamara. “Reinventing Labor Law: a Rejoinder.” Cardozo Law Review 5 (16) (1995). Loureiro, Felipe Pereira. “Strikes in Brazil During the Governments of Jânio Quadros and João Goulart (1961 – 1964),” 2010, typewritten manuscript. Loureiro, Felipe Pereira. Empresários, trabalhadores e grupos de interesse: a política econômica nos governos Jânio Quadros e João Goulart, 1961 – 1964. Dissertation (PhD in History) – PPGHE-USP, São Paulo, 2012. Luce, Frank. “O domínio da lei na região do cacau: a Justiça do Trabalho e o Estatuto do Trabalhador Rural.” In A Justiça do Trabalho e sua história: os direitos dos trabalhadores no Brasil, edited by Ângela de Castro Gomes, and Fernando Teixeira da Silva. Campinas: Editora da Unicamp, 2013. Lutterbach, Edmo Rodrigues. Geraldo Bezerra de Menezes: homem de fé e apóstolo leigo. Niterói: Clube de Literatura Cromos, 1996. Maccalóz, Salete Maria P. Representação classista na Justiça do Trabalho. Rio de Janeiro: Forense, 1984.

Bibliography

247

Malhadas, Julio. Justiça do Trabalho: sua história, sua composição, seu funcionamento. São Paulo: Ltr, 1998. Maranhão, Délio. “Processo de Trabalho.” In Instituições de direito do trabalho, edited by Arnaldo Sussekind, Délio Maranhão, and Segadas Vianna. Instituições de direito do trabalho. São Paulo: LTr, 1991, vol. 2. Markey, Raymond. “The Development of Collective Labour Law in Australia, 1788 – 1914.” In The Rise and Development of Collective Labour Law, edited by Marcel van der Linden, and Richard Price. Berna; Bruxelas; Frankfurt; Nova Iorque; Viena: Lang, 2000. Mattos, Hebe. Das cores do silêncio: os significados da liberdade no Sudeste escravista – Brasil século XIX. Rio de Janeiro: Nova Fronteira, 1998. Mattoso, Jorge. Crise e trabalho no Brasil. São Paulo: Scritta, 1996. Mendes, Alexandre Marques. Classe trabalhadora e Justiça do Trabalho: experiências, atitudes e expressões do operário do calçado (Franca-SP, 1968 – 1988). Franca: Cristal, 2009. Mendonça, Joseli Maria N. Evaristo de Moraes, tribuno da República. Campinas: Editora da Unicamp, 2007. Mericle, Kenneth S. “Corporatist Control of the Working Class: Brazil.” In Authoritarianism and Corporatism in Latin America, edited by James Malloy. London: University of Pittsburgh Press, 1977. Merrien, François-Xavier, et al. (eds.). L’ état social: une perspective internationale. Paris: Dalloz, 2005. Miglioli, Jorge. Como são feitas as greves no Brasil? Rio de Janeiro: Civilização Brasileira, 1963. Montenegro, Antonio Torres. “Trabalhadores rurais e Justiça do Trabalho em tempos de regime civil-militar.” In A Justiça do Trabalho e sua história: os direitos dos trabalhadores no Brasil, edited by Ângela de Castro Gomes, and Fernando Teixeira da Silva. Campinas: Editora da Unicamp, 2013. Montgomery, David. The Fall of the House of Labor. Cambridge: Cambridge University Press, 1995. Morel, Regina M., and Wilma Mangabeira. “‘Velho’ e ‘novo’ sindicalismo e uso da Justiça do Trabalho: um estudo comparativo com trabalhadores da Companhia Siderúrgica Nacional.” Dados 37 (1) (1994). Morel, Regina M., and Elina G. da Fonte Pessanha. “Magistrados do trabalho no Brasil: entre a tradição e a mudança.” Estudos históricos 37 (2006). Morel, Regina M, Ângela de Castro Gomes, and Elina G. de Fonte Pessanha. Sem medo da utopia: Evaristo de Moraes Filho: arquiteto da sociologia e do direito do trabalho no Brasil. São Paulo: LTr, 2007. Moura, Margarida Maria. Os deserdados da terra: a lógica costumeira e judicial dos processos de expulsão e invasão da terra camponesa no sertão de Minas Gerais. Rio de Janeiro: Bertrand Brasil, 1988. Moutinho, Marcelo. “O lado que mais pesa na balança.” http://www.tribunadoadvogado.com. br/ content.asp?cc=1&codedicao=31&id=977, acessado em 6 abr. 2007 Munakata, Kazumi. A legislação trabalhista no Brasil. São Paulo: Brasiliense, 1984. Nascimento, Amauri Mascaro, Irany Ferrari, and Ives Gandra Martins. História do trabalho, do Direito do Trabalho e da Justiça do Trabalho. São Paulo: LTr, 1998.

248

Bibliography

Negro, Antonio Luigi. Linhas de montagem: o industrialismo nacional-desenvolvimentista e a sindicalização dos trabalhadores. São Paulo: Boitempo, 2004. Negro, Antonio Luigi, and Edinaldo Antonio O. Souza. “Que ‘fosse procurar seus direitos’. Justiça do Trabalho e poder disciplinar na Bahia: insubordinação operária, autoridade patronal e mediação judicial (1943 – 1948).” In A Justiça do Trabalho e sua história: os direitos dos trabalhadores no Brasil, edited by Ângela de Castro Gomes, and Fernando Teixeira da Silva. Campinas: Editora da Unicamp, 2013. Nogueira, Marco Aurélio (ed.). PCB: vinte anos de política, 1958 – 1979. Documentos. São Paulo: Ciências Humanas, 1980. Noronha, Eduardo Garuti. Entre a lei e a arbitrariedade: mercados e relações de trabalho no Brasil. São Paulo: LTR, 1999. Oliveira, Carlos Alonso Barbosa de. “Contrato coletivo e relações de trabalho no Brasil.” In O mundo do trabalho: crise e mudança no final do século, edited by Carlos Alonso Barbosa de Oliveira et al. (eds.). São Paulo: Scritta, 1994. Pacheco, Jairo Queiroz. Guerra na fábrica: o cotidiano operário fabril durante a Segunda Guerra: o Caso de Juiz de Fora-MG. Thesis (masters in History) – PPGH-USP, São Paulo, 1996. Paoli, Maria Célia. Labor, Law and State in Brazil: 1930 – 1950. Dissertation (Ph.D) – Birkbeck College-University of London, London, 1988. Paoli, Maria Célia. “Os trabalhadores urbanos na fala dos outros. Tempo, espaço, e classe na história operária brasileira.” In Cultura e identidade operária, edited by José Sérgio Leite Lopes. Rio de Janeiro: UERJ/Museu Nacional/Marco Zero, 1987. Paoli, Maria Célia. “Os direitos do trabalho e sua justiça.” Revista USP 26 (1994). Passos, Edésio. “Os direitos dos trabalhadores: no limite da desconstituição do sistema legal de contratação do trabalho”, In Sindicalismo no Brasil: os primeiros 100 anos?, edited by José Reginaldo Inácio. Belo Horizonte: Crisália, 2007. Patel, Kiran Klaus. The New Deal: a Global History. Princeton and Oxford: Princeton University Press, 2016. Patmore, Greg. “Employee Representation Plans in the United States, Canada, and Australia: An Employer Response to Workplace Democracy.” Labor: Studies in Working-Class History of the Americas 2 (3) (2006). Patriarca, Fátima. A questão social no salazarismo, 1930 – 1947. Lisbon: Imprensa Nacional Casa da Moeda, 1995, vol. 1. Pereira, Anthony. “O declínio das Ligas Camponesas e a ascensão dos sindicatos: as organizações de trabalhadores rurais em Pernambuco na Segunda República, 1955 – 1963.” Clio 2 (26) (2008). Pessanha, Elina G., and Regina M. Morel. “Mudanças recentes no modelo de relações de trabalho no Brasil.” In O novo sindicalismo, edited by Iram Jácome Rodriguez. Petrópolis: Vozes, 1999. Pinto, Almir Pazzianotto. 100 anos de sindicalismo. São Paulo: Lex Editora, 2007. Pochmann, Marcio. “Adeus à CLT? O ‘eterno’ sistema corporativo de relações de trabalho no Brasil.” Novos Estudos CEBRAP, São Paulo, 50 (1998). Pochmann, Marcio. “Mudança e continuidade na organização sindical brasileira no período recente.” In Crise e trabalho no Brasil, edited by Anselmo L. dos Santos, Carlos Alonso Barbosa de Oliveria, and Jorge Mattoso. Crise e trabalho no Brasil. São Paulo: Scritta, 1996.

Bibliography

249

Polanyi, Karl. A grande transformação: as origens de nossa época. Rio de Janeiro: Campus, 2000. Pomari, Elisa Paletti. Justiça do Trabalho e poder normativo: São Paulo, 1963 – 1964. Campinas, ago. 2011, p. 11 (Final report for Scientific Initiation grant PIBIC/CNPq). Priori, Ângelo. O protesto do trabalho: história das lutas sociais dos trabalhadores rurais do Paraná: 1954 – 1964. Maringá: Eduem, 1996. Puech, Luiz Roberto de R. Direito individual e coletivo do trabalho. São Paulo: Revista dos Tribunais, 1960. Puech, Luiz Roberto de R. Na vivência do direito social. São Paulo: Resenha Universitária, 1975. Ramm, Thilo. “Labor Courts and Grievance Settlement in West Germany.” In Aaron, Benjamin (ed). Labor Courts and Grievance Settlement in Western Europe. Los Angeles: University of California Press, 1971. Rezende, Vinícius de. Anônimas da história: relações de trabalho e atuação política de sapateiras entre as décadas de 1950 e 1980 (Franca-SP). Thesis (masters in History) – PPGH-Unesp, Franca, 2006. Rezende, Vinícius de. Vidas fabris: trabalho e conflito social no complexo coureiro-calçadista de Franca (SP), 1950 – 1980. São Paulo: Alameda, 2017. Rezende, Vinícius de. “A regulamentação das relações de trabalho na ‘capital do calçado’ (Franca-SP, 1940 – 1980).” In A Justiça do Trabalho e sua história: os direitos dos trabalhadores no Brasil, edited by Ângela de Castro Gomes, and Fernando Teixeira da Silva. Campinas: Editora da Unicamp, 2013. Ribeiro, Felipe Augusto dos Santos. A foice, o martelo e outras ferramentas de ação política: os trabalhadores rurais e têxteis de Magé/RJ (1956 – 1973). Dissertation (PhD in History) – CPDOC/USP, Rio de Janeiro, 2015. Richard Lionel. A República de Weimar. São Paulo: Companhia das Letras, 1988. Ricoeur, Paul. A memória, a história, o esquecimento. Campinas: Editora da Unicamp, 2007. Ricoeur, Paul. O justo: a justiça como regra moral e como instituição. São Paulo: Martins Fontes, 2008, vol. 1. Rodrigues, Iram Jácome. “O sindicalismo brasileiro: da confrontação à cooperação conflitiva.” São Paulo em perspectiva 9 (1995). Rordrigues, Iram Jácome. “A trajetória do Novo Sindicalismo.” In idem, O novo sindicalismo. Petrópolis: Vozes, 1999. Rodrigues, José Albertino. Sindicato e desenvolvimento no Brasil. São Paulo: Símbolo, 1979. Romita, Arion S. “Justiça do Trabalho: produto do Estado Novo.” In Repensando o Estado Novo, edited by Dulci Pandolfi. Rio de Janeiro: Editora da FGV, 1999. Romita, Arion S. O fascismo no direito do trabalho brasileiro: influência da Carta del Lavoro sobre a legislação trabalhista brasileira. São Paulo: LTr, 2001. Rosanvallon, Pierre. Le capitalisme utopique: histoire de l’ idée de marche. Paris: Seuil, 1979. Rosanvallon, Pierre. A nova questão social: repensando o Estado Providência. Brasília: Instituto Teotônio Vilela, 1998. Rowland, Robert. “Classe operária e Estado de compromisso (origens estruturais da legislação trabalhista e sindical).” Estudos CEBRAP 48 (1974). Rubin, Cherry R. “The Historical Development of Collective Labour Law: The United Kingdom.” In The Rise and Development of Collective Labour Labour Law, edited by Marcel van der Linden, and Richard Price. Berna; Bruxelas; Frankfurt; Nova Iorque; Viena: Lang, 2000.

250

Bibliography

Saboia, José Carlos de. De senhores a trocadores de cebola. Thesis (masters in Social Science) – PPGCS-Unicamp Campinas, 1978. Sader, Eder. Quando novos personagens entraram em cena: experiências e lutas dos trabalhadores da Grande São Paulo, 1970 – 1980. São Paulo: Paz e Terra, 1988. Sandoval, Salvador. Os trabalhadores param: greves e mudança social no Brasil: 1945 – 1990. São Paulo: Ática, 1994. Santana, Marco Aurélio. Homens partidos: comunistas e sindicatos no Brasil. São Paulo: Boitempo, 2001. Santos, Wanderley Guilherme dos. Cidadania e justiça: a política social na ordem brasileira. Rio de Janeiro: Campus, 1979. Schaltz, Ronald W. “‘Industrial Peace through Arbitration’: George Taylor and the Genius of the War Labor Board,” Labor 11 (4) (2014). Schaltz, Ronald W. “From Commons to Dunlop: Rethinking the Field and Theory of Industrial Relations.” In Industrial democracy in America: The Ambiguous Promise, edited by Nelson Lichtenstein, and Howell John Harris. Cambridge: Cambridge University Press, 1996. Schmidt, Benito Bisso. “A sapateira insubordinada e a mãe extremosa. Disciplina fabril, táticas de gênero e luta por direitos em um processo trabalhista (Novo Hamburgo/RS, 1958 – 1961).” In A Justiça do Trabalho e sua história: os direitos dos trabalhadores no Brasil, edited by Ângela de Castro Gomes, and Fernando Teixeira da Silva. Campinas: Editora da Unicamp, 2013. Schmitter, Philippe C. “Still the Century of Corporatism?” In The New Corporatism: Social-Political Structures in the Iberian World, edited by Fredrick B. Pike, and. Thomas Stritch. London: University of Notre Dame, 1974. Segatto, José Antonio. Reforma e revolução: as vicissitudes políticas do PCB, 1954 – 1964. Rio de Janeiro: Civilização Brasileira, 1995. Semán, Ernesto. Embassadors of the Working Class: Argentina’s International Labor Activists and Cold War Democracy in the Americas. Durham-London: Duke University Press, 2017. Sen, Amartya. A ideia de justiça. São Paulo: Companhia das Letras, 2011. Sennett, Richard. A corrosão do caráter: consequências pessoais do trabalho no novo capitalismo. Rio de Janeiro: Record, 2015. Setti, Paulo André. Merecimento e eficiência: performance de advogados e juízes na Justiça do Trabalho em Campinas. Campinas: Centro de Memória da Unicamp, 1997. Shirley, Robert W. “Law in Rural Brazil.” In Brazil: Anthropological Perspectives, edited by Maxine L. Margolis, and William E. Carter. New York: Columbia University Press, 1979. Sigaud, Lygia. “Direito e coerção moral no mundo dos engenhos.” Estudos Históricos 18 (9) (1996). Silva, Alessandra Belo Assis. Os trabalhadores têxteis na Justiça do Trabalho: luta por direitos em Juiz de Fora na década de 1950. Juiz de Fora: Aquela Editora, 2016. Silva, Antonio Alvares. “Marcos legais do corporativismo no Brasil.” In O mundo do trabalho: crise e mudança no final do século, edited by Carlos Alonso B. de Oliveira et al. (eds.). São Paulo: Scritta, 1994. Silva, Eli Alves. “Representação classista na Justiça do Trabalho”. Consultor Jurídico, 23 Jun. 1998. https://www.conjur.com.br/1998-jun-23/representacao_classista_jt

Bibliography

251

Silva, Fernando Teixeira da. A carga e a culpa. Os operários das docas de Santos: direitos e cultura de solidariedade, 1937 – 1968. São Paulo: Hucitec; Santos: Prefeitura Municipal de Santos, 1995. Silva, Fernando Teixeira da. “Direitos, política e trabalho no porto de Santos.” In Na luta por direitos: estudos recentes em história social do trabalho, edited by Alexandre Fortes et al. Campinas: Editora da Unicamp, 1999. Silva, Fernando Teixeira da. Operários sem patrões: os trabalhadores da cidade de Santos no entreguerras. Campinas: Editora da Unicamp, 2003. Silva, Fernando Teixeira da. “Breve história de erros e bodes expiatórios.” In: Alexandre Fortes (ed.). História e perspectiva da esquerda. São Paulo: Editora da Fundação Perseu Abramo, 2005. Silva, Fernando Teixeira da. “The Brazilian and Italian Labor Courts: Comparative Notes.” International Review of Social History, Amsterdam, 55 (2010). Silva, Fernando Teixeira da. “Entre o acordo e o acórdão: a Justiça do Trabalho paulista na antevéspera do golpe de 1964.” In A Justiça do Trabalho e sua história: os direitos sociais e humanos dos trabalhadores no Brasil, edited by Ângela de Castro Gomes, and Fernando Teixeira da Silva. Campinas: Editora da Unicamp, 2013. Silva, Fernando Teixeira da. “‘Justiça de classe’: tribunais, trabalhadores rurais e memória.” Mundos do Trabalho 8 (5) (2012). Silva, Fernando Teixeira da and Larissa R Correa. “The Politics of Justice: Rethinking Brazil’s Corporatist Labor Movement.” Labor 13 (2) (2016). Silva, Fernando Teixeira da, and Hélio da Costa. “Trabalhadores urbanos e populismo: um balanço dos estudos recentes.” In O populismo e sua história. Debate e crítica, edited by Jorge Ferreira. Rio de Janeiro: Civilização Brasileira, 2001. Silva, Fernando Teixeira da and Antonio Luigi Negro, “Trabalhadores, sindicatos e política.” In História do Brasil Republicano, edited by Jorge Ferreira and Lucília de Almeida Neves Delgago. Rio de Janeiro: Civilização Brasileira, 2003, vol. 3. Silva, Fernando Teixeira da and Marco Aurélio Santana. “O equilibrista e a política: o ‘Partido da Classe Operária” (PCB) na democratização (1945 – 1964).” In As esquerdas no Brasil. Nacionalismo e reformismo radical, 1945 – 1964, edited by Jorge Ferreira, and Daniel Aarão Reis. Rio de Janeiro: Civilização Brasileira, 2007, vol. 3. Silva, Maria Sângela de Sousa Santos. A Justiça do Trabalho e os trabalhadores em Fortaleza (1946 – 1964). Fortaleza, Premius, 2013. Singer, Paul. “O significado do conflito distributivo no golpe de 64.” In 1964: visões crítica do golpe, edited by Caio Navarro de Toledo. Campinas: Editora da Unicamp, 1997. Slenes, Robert. “Escravos, cartórios e desburocratização: o que Rui Barbosa não queimou será destruído agora?” Revista Brasileira de História, São Paulo 10 (5) (1985). Soares, Gláucio Ary Dillon. “O golpe de 1964.” In 21 anos de regime militar, edited by Gláucio Ary Dillon Soares, and Maria Celina d’ Araujo. Rio de Janeiro: Editora da FGV, 1994. Souza, Clarice M. “Base de dados eletrônica TRF/SJRJ.” In Autos da memória: a história brasileira no Arquivo da Justiça Federal, edited by Maria da Penha F. Sampaio et al. Rio de Janeiro: Justiça Federal da 2a. Região, 2006. Souza, Edinaldo Antonio O. “Bastidores da disputa trabalhista em comarcas do interior (Recôncavo Sul, BA, 1940 – 1960).” História Social 14/15, 2008.

252

Bibliography

Souza, Edinaldo Antonio O. Lei e costume: experiências de trabalhadores na Justiça do Trabalho. Recôncavo Sul: Bahia, 1940 – 1960. Salvador: Edufba, 2012. Souza, Edinaldo Antonio O. Trabalho, política e cidadania: trabalhadores, sindicatos e luta por direitos (Bahia, 1945 – 1950). Dissertation (PhD in History) – PPGH-UFBA, Salvador, 2015. Souza, Samuel Fernando. Na esteira do conflito: trabalhadores e trabalho na produção de calçados em Franca (1970 – 1980). Thesis (masters in History) – PPGH-Unesp, Franca, 2003. Souza, Samuel Fernando. “Coagidos ou subordinados”: trabalhadores, sindicatos, Estado e as leis do trabalho nos anos 1930. Dissertation (PhD in History) – IFCH-Unicamp, Campinas, 2007. Souza, Samuel Fernando. “‘A questão social é, principalmente e antes de tudo, uma questão jurídica’: o CNT e a judicialização das relações de trabalho no Brasil (1923 – 1932).” Cadernos AEL 26 (14) (2009). Speranza, Clarice G. Cavando direitos: as leis trabalhistas e os conflitos entre os mineiros de carvão e seus patrões no Rio Grande do Sul (1940 – 1954). Porto Alegre: Anpuh, Oikos, 2014. Steinfeld, Robert. The Invention of Free Labor: The Employment Relation in English & American Law and Culture, 1350 – 1870. Chapel Hill: University of North Carolina Press, 1991. Stolcke, Verena. Cafeicultura: homens, mulheres e capital, 1850 – 1980. São Paulo: Brasiliense, 1986. Stone, Katherine Van Wezel. “Labor and the American State: The Evolution of Labor Law in the United States.” In The Rise and Development of Collective Labour Law, edited by Marcel van der Linden, and Richard Price. Bern; Brussels; Frankfurt; New York; Vienna: Lang, 2000. Supiot, Alain. Critique du droit du travail. Paris: Quadrige/PUF, 1994. Teixeira, Gabriel da Silva. “Sindicalismo rural e política em São Paulo, 19641990” – IFCH-Unicamp, Campinas, June 2015 (paper presented to qualify a proposal for a PhD dissertation in Social Science). Teixeira, Melissa. “Making a Brazilian New Deal: Oliveira Vianna and the Transnational Sources of Brazil’s Corporatist Experiment.” Journal of Latin American Studies, 3 (50), August 2018. Thompson, E. P. Senhores e caçadores: a origem da lei negra. Rio de Janeiro: Paz e Terra, 1987. Thompson, E. P. “Costume, lei e direito comum.” In idem, Costumes em comum. São Paulo: Companhia das Letras, 1998. Thompson, E. P. “Patrícios e plebeus.” In idem, Costumes em comum. São Paulo: Companhia das Letras, 1998. Thompson, E. P. “Economia moral revisitada.” In idem, Costumes em comum. São Paulo: Companhia das Letras, 1998. Thompson, E. P. Os românticos: a Inglaterra na era revolucionária. Rio de Janeiro: Civilização Brasileira, 2002. Thompson, E. P. “Folclore, antropologia e história social.” In idem, As peculiaridades dos ingleses e outros artigos. Campinas: Editora da Unicamp, 2012. Ungari, Paolo. Alfredo Rocco e l’ideologia giuridica del fascismo. Brescia: Morcelliana, 1974.

Bibliography

253

Varussa, Rinaldo J. Trabalhadores e a construção da Justiça do Trabalho no Brasil (décadas de 1940 a 1960). São Paulo: LTr, 2012. Vianna, Luiz Werneck. Liberalismo e sindicato no Brasil. Rio de Janeiro: Paz e Terra, 1976. Vianna, Luiz Werneck et al. (eds.). A judicialização da política e das relações sociais no Brasil. Rio de Janeiro: Revan, 1999. Vianna, Luiz Werneck et al. (eds.). Corpo e alma da magistratura brasileira. Rio de Janeiro: Revan, 1997. Vieira, Carlos Alberto de Souza. “A coleta de amostras representativas de um acervo documental: o caso do poder judiciário do Rio de Janeiro.” In ANAIS do VI Congresso de Arquivologia do MERCOSUL. Campos do Jordão, October 2005. Vieira, Pedro Benjamin, and Ramon Castro Touron. Importância da representação paritária na Justiça do Trabalho. São Paulo: LTr, 1993. Vieira, Vera Lúcia. Cooptação e resistência: trabalhadores de São Paulo de 1945 a 1950. São Paulo: PUC, 1989. Weffort, Francisco. Sindicato e política. Dissertation (Professorial Thesis in Sociology) – PPGCS-USP, São Paulo, 1973. Weinstein, Barbara. (Re)formação da classe trabalhadora no Brasil (1920 – 1964). São Paulo: Cortez, 2000. Welch, Clifford Andrew, “Labor Internationalism: U. S. Involvement in Brazilian Unions, 1945 – 1965.” Latin American Research Review 2 (30) (1995). Welch, Clifford Andrew, A semente foi plantada: as raízes paulistas do movimento sindical camponês, 1924 – 1964. São Paulo: Expressão Popular, 2010. Welch, Clifford Andrew, and Sebastião Geraldo. Lutas camponesas no interior paulista: memórias de Irineu Luís de Moraes. São Paulo: Paz e Terra, 1992. Willemez, Laurent. Le droit du travail en danger: une resource collective pour des combats individuels. Broissieux: Éditions du Croquant, 2006. Wolf, Joel. Working Women, Working Men. São Paulo and Rise of Brazil’s Industrial Working Class, 1900 – 1955. Durham: Duke University Press, 1993.

Index Aaron, Benjamin 61, 72, 75, 91 f, 92 Affonso, Almino 124, 196, 203 Agrarian reform 5, 122, 204, 213, 216 f., 217, 221 Agreement, 1 f., 9, 18, 23 f., 37, 43, 47, 51, 53 f., 58 f., 62 f., 75 – 78, 82 – 85, 89 f., 103 – 105, 107 f., 108, 110 – 116, 118 – 121, 124 f., 129, 131 – 138, 146 f., 149 f., 152, 155, 161, 172, 175 – 177, 180, 187, 191 – 198, 203, 210 – 212, 220, 227 f., 228, 230 f, Agriculture 20, 171, 193 Alffonso, Rocco d′ 84 Amazonas, João 162 American Federation of Labor 53, 65 Andrade, Manuel Correia de 216 Araujo, Angela 68, 104 Arbitration/Compulsory arbitration 5, 18 – 20, 23, 25 – 26, 31, 45, 47, 51 – 59, 61 – 66, 71 – 72, 76, 80, 82 – 84, 92, 105, 140, 158, 165, 172, 174, 229 Armed Forces 171 Army 168 Association of Rural Workers of the East 199 Association of Small Farmers and Farm Workers of Assis 200 Atleson, James B. 118 Australia 51, 53, 57, 61, 82 – 84 Azevedo, Fernando A. 208 Bandeira, Luiz Alberto Moniz 124 Barbosa, Renato Rezende 191, 194 Bargaining power 57, 63, 69, 106, 113, 115 – 119, 139, 229, 231 Barros, Ademar 169, Barroso, Gilberto 130 Batalha, Wilson de Souza Campos 130, 133, 137 f., 141 – 145, 176 Battente, Saverino 70, 80, 85 Belgium 56, 84 Benefits 41, 43, 64, 105, 112 f., 133, 156, 189, 193, 207, 213, 218, 225, 227, 234 https://doi.org/10.1515/9783110638844-017

Bevilacqua, Pery (General) 168 Biavaschi, Magda 25, 38, 40, 93 Bicudo, Hélio 73 Blankenburg, Erhard 54, 72, 77, 90 Bonaparte, Napoleon 71 Bourdieu, Pierre 8, 35 Branco, Castelo (General) 28 Brazil 1964 coup/Civilian-military coup d’état/1964 coup 1, 3, 4 f., 6, 67, 81, 86, 100, 1001, 103, 122, 127, 137, 146, 151, 158, 168, 183, 185, 187, 209, 216, 219, 221, 222, 225, 227, 228, 233, 235 Brazil cities: – Antonina 173 – Assis 185, 187, 189 – 193, 195, 196, 200 f., 203, 208 – 210, 214 – Belo Horizonte 219, – Campinas 42 – 43, – Campos de Jordão 132 – Cravinhos 215 – Cuiabá 125 – Curitiba 127, 174 – Fortaleza 27 – Jequitinhonha Valley 218 – Juiz de Fora 33 – Jundiaí 27 – Mogi das Cruzes 150 – Palmares 185, 187 – Paranaguá 167 – Piracicaba 149, 202 – Presidente Epitácio 103, 142 – Ribeirão Preto 203, 205, 208 – Santo André 173, 177, 179 – Santos 33, 106 f., 115, 123 f., 128, 130, 149, 152, 168 f., – São Bernardo do Campo 173 – São Caetano do Sul 173, 177 – São Roque 150 – Sertãozinho 206 – Sorocaba 150 Brazilian Institute of Geography and Statistics (IBGE) 43 Brazilian Labor Party (PTB) 150, 187, 188

256

Index

Brazilian Rural Society (SBR) 221 Brazilian Socialist Party (PSB) 206 Bresciani, Maria Stella 51, 69, 87 Bressan, João Alberto 143, 145 Brody, David 49, 58, 63 Café Filho, João 157 Canada 54, 57 f., 61, 75, 83 Capitalism/capitalist 9, 20, 37, 40 f., 45, 48 f., 51, 55, 63, 97 Cardim, Rômulo 198 f Cardoso, Adalberto Moreira 38, 41 f., 92, 230 f., 234 Carvalho, José Murilo de 3, 153 Castel, Robert 48, 52 Castoriadis, Cornelius 134 Castro, Araújo 72 Castro, Augusto Viveiros de 20, 74, 82, 84 Catharino, José Martins 204 Catholic/Catholic Church 37, 136, 191, 193, 199, 200 – 203, 209, 210, 211 Center for Research and Documentation of Contemporary Brazilian History (CPDOC) 10, 42 Central Workers’ Union (CUT) 54, 74 Cesarino Júnior, Antônio Ferreira 163 Chalhoub, Sidney 15, 30, 33 Chamber of Deputies 18, 80 Citizenship 3 f., 8, 39, 234 f. Civil War, 1932 22 Cohen, Lisabeth 63 Cold War 62, 70 Collective bargaining 5, 9 – 11, 23, 25, 30 f., 49, 51, 53 – 64, 79, 82 f., 89, 92, 105, 107 f., 111, 118, 152 f., 155, 172, 194, 197, 228, 230 f Collective contracts 47, 54, 108, 112 Collective representation 50, 112 Collor, Lindolfo 21 Colonato 35, 101, 211, 214 – 216 Colono 207 f., 211 f., 214 f., 218, 220 Communism/communist; Brazilian Communist Party/Communist Party of Brazil 1, 22, 37, 52, 88, 97 – 100, 104, 106, 139, 143, 150, 159, 162 f., 184 – 187, 189 – 193, 195, 197, 199 – 205, 208 – 211, 209, 213, 217, 225, 234

Conciliation 5, 18 – 27, 31, 40, 42, 44, 51, 56 f., 71 – 78, 82 f., 89, 90, 98, 99, 108, 110, 115, 119, 120, 135, 158, 161, 165, 170, 173 – 176, 178, 187, 184, 202, 204, 208 f. Constituent Assembly, 1946 157 f., 160, 162, 163, 174 Constitutional Assembly,1933 22, 90 Constitution of 1934 24, 159 Constitution of 1937 163 Constitution of 1946 46, 81, 158 f., 162 – 164, 183 Constitution of 1988 39, 69 Corporatism/corporatist 1, 3 – 5, 10, 19 – 23, 25 – 27, 29 f, 34, 38, 45, 47, 52 – 54, 59 – 64, 68 – 71, 73 – 77, 79, 81, 83 – 89, 92 f, 105, 107 – 110, 149, 151, 155, 183, 228 f., 231, 233 Corrêa, Larissa R. 37, 52, 64, 116, 127, 128, 138, 140 f., 143 f., 154, 156, 183, 189, 229 Costa, Hélio da 27, 97, 183 Cost of living 7, 18, 98, 104, 113, 122 f., 125 – 130, 132, 140, 147 Cottereau, Alain 71, 75, 89 Countryside 7, 10, 66, 100, 184 f., 197, 199, 201 – 204, 207, 209, 212 f., 216, 219, 221, 225, 234 f. Court cases 33, 37, 114, 148, 218, 222 Coutinho, Fernando de Oliveira 143, 145 f., 167 Couton, Philippe 71, 75, 89 Criminal legislation 55, 57, 163, 208 Dabat, Christine Rufino 36, 215 f. Dahrendorf, Ralf 91 Dantas, San Tiago 124 Delellis, Afonso 141, 154 Delgado, Lucília de Almeida Neves 2, 98 – 100, 151, 155, 235 Democracy/democratic 1 – 6, 30, 45 – 47, 52, 53, 59, 61 – 65, 70, 81, 83, 86 – 89, 97, 98, 106, 159 – 162, 164, 204, 216, 229, 230, 233, 235, 236 Department of Political and Social Order (DOPS) 201

Index

Dezemone, Marcus 36, 202, 206 f., 213, 220 Dinius, Oliver 37, 49 Donzelot, Jacques 48 f., 51 Droppa, Alisson 37, 159, 163, 170, 177, 183, 199, 204, 208 Dutra, Eurico Gaspar 160, 186 Employees 9 f., 22 – 26, 28, 32 f., 43, 47, 50, 58, 71 – 73, 77, 89, 106, 111, 120, 131 – 133, 135 – 138, 152, 159 – 161, 166 f., 169 f., 173, 179 – 181, 187, 192, 195, 201 – 203, 210 – 213, 227, 232 Employers, employers’ syndicates 1, 4 – 6, 8 – 10, 17 – 20, 22 – 26, 28 f., 32 – 34, 37 f., 41 – 43, 47, 49 – 51, 53, 56 – 61, 64 f., 67, 71 – 74, 76 f., 83 f., 89 – 92, 101, 103 – 106, 108, 110 – 118, 120, 122 – 125, 127 – 142, 145, 147 – 161, 165 f., 169 f., 172 – 174, 176 – 181, 187, 189, 191, 194, 201 – 203, 209, 211, 214, 216 – 219, 227 – 229, 232 f., 235 Employment 37, 40, 48, 50, 57, 59 f., 63 f., 111 f., 124, 128, 161, 181, 203 f., 213, 217 Erickson, Kenneth Paul 124, 156, 171 Family salary 146 Farm/farmer 192, 197 f., 200 f., 210, 212, 214, 218 Fascism/fascist 9, 27, 29, 31, 45, 47, 53, 68 – 70, 72 f., 76, 79 f., 82 f., 85 – 89, 91 f. Fausto, Boris 15 Fava, Antonio José 130, 141, 143 – 146 Federal Supreme Court (STF) 81, 114, 163 f., 169, 193, 198 f. Federation of Chemical Industries 152 Federation of Círculos Operários of São Paulo State (FECOESP) 200, 202 Federation of Food Industry Workers 150, 187, 191, 197, 199, 201 Federation of Food Industry Workers of São Paulo State (FTIAESP) 187, 191 Federation of Garment Workers of São Paulo 150

257

Federation of Industries of the State of São Paulo (FIESP) 105, 106, 122, 149 – 155, 166, 180 Federation of Metalworking Industries 152 Federation of Rural Workers of São Paulo State (FETAESP) 200, 202 Federation of Tourism and Hospitality Employees in the State of São Paulo 152 Federation of Workers in the Metal and Mechanical Metallurgical Industries of the State of São Paulo 149 Ferreira, Jorge 2, 30, 97, 98, 100, 151, 155, 202, 235 Ferreira, Waldemar 19, 45, 77 f. Fink, Leon 17, 55, 58, 84, 209 First National Congress of Rural Workers 204 First Republic (1889 – 1930) 17 Fisher, Brodwin 234 Fonseca, Hélio Tupinambá 123, 143, 145, 193 f., 223 Fontes, Paulo 6, 97, 116 Fortes, Alexandre 33, 101, 235 Fragoso, Gilberto Barreto 143, 145 France, solidarisme; Conseils de Prud’hommes; 1848 revolution 29, 48, 50 f., 56, 71, 75, 77, 84, 87, 89 Fraser, Steven 56, 59 Free labor 48 f., 58, 63 Free workers 9, 15 French, John D. 31 f., 73, 184, 189 f. Frey, John P. 53 Furtado, Celso 6, 122, 124 Gacek, Stanley Arthur 47, 54, 64, 66 Garapon, Antoine 46 Gaspari, Elio 44 General Command of Workers/General Workers Command (CGT) 99, 100, 154, 186 General Workers’ Union (UGT) 186 Gentile, Fabio 69 f., 85 f., 89 Geraldo, Sebastião 203, 205, 218, 221 f. Germany,, Weimar Republic; Third Reich; Weimar Constitution; Weimar Labor Courts 56, 71, 72, 75, 77 – 79, 84, 89 f. Gola, Waldemar 153, 180

258

Index

Gomes, Ângela de Castro 17, 24, 27 – 29, 34, 36, 38 – 40, 90, 103, 128, 144, 151, 189, 209, 216, 229, 234 Gordon, Colin 59 Gottschallk, Elton F. 81 f. Goulart, João 1 – 4, 6, 97 – 100, 116, 122 – 124, 127, 130 f., 145, 168 f., 171, 202 f., 220 f., 233 Grandin, Greg 212 Great Britain 51 Great Depression 58, 62 Grynspan, Mario 42 f., 231 Guimarães, Helio de Miranda 140, 143, 145, 167, 223 Hall, Michael M. 21, 29, 68, 86, 92, 112, Harris, Howell John 62 f. Hatzfeld, Henri 48, 51 Hayek, Friedrich A. von 29 Homologation 108 – 111, 114, 116 – 119, 121, 124, 131, 133 – 139, 161, 172, 176, 193 Howell, Chris 52, 55, 57, 62 Human rights 38, 40 Hyman, Richard 55 Industrial action 98, 158, 160, 165 – 169, 171 – 175, 177 – 183, 190, 228 Industry 7, 20 f., 36, 41, 59 f., 84, 116, 122, 125, 127, 129, 132 f., 147, 149, 161, 166, 173, 179, 193, 195, 197, 203 f., 212 Inflation 6, 9, 41, 44, 67, 101, 103 f., 106, 112, 114 f., 122 – 124, 126, 128 – 132, 136 f., 140, 212 Injunction 52 Institute for Studies of Religion (ISER) 42 Inter-American Conference on Problems of War and Peace 160 Inter-Union Department of Socioeconomic Statistics and Studies (DIEESE) 126 Inter-Union Unity Pact (PUI) 186 Italy 9, 29, 31, 67, 70 – 74, 78 f., 81, 83 – 86, 92 f. – Carta del Lavoro 29, 68, 86 – Collegi di Probiviri 73, 80 – Court of Appeals 73 – Magistratura del Lavoro 9, 29, 31, 68 f., 71 – 75, 78 – 82, 84, 88, 91, 93, 228

– Mussolini, Benito 67, 69, 79, 87 – Provincial Economic Council 72, 76 – Provincial Intersessional Committees 76 – Public Prosecutor’s Office 39, 79, 109, 183 – Rocco, Alfredo 70, 73 f., 80, 84 f., 184, 212 Jacoby, Sanford 49 James, Daniel 27, 60, 73, 118, 184, 190, 224, 228 Jesus, Mário Carvalho de 136 Jocteau, Gian Carlo 73, 76, 79 f., 91 Judge, lay judge; career judge 5 – 9, 11, 19, 23, 25 – 28, 31 – 34, 37 f., 42 – 46, 58, 65 f., 71 – 74, 76, 79 f., 84 f., 90, 104, 109 – 112, 114, 119, 121 – 131, 133 – 147, 150, 155 f., 160, 166 – 170, 173 – 176, 179, 187 – 189, 193 f., 197 – 200, 208 f., 217, 219, 223 f., 227, 229 Judiciary 5, 7, 23, 25 f., 28, 33, 36, 42, 45 – 47, 58, 68 f., 71, 79, 81, 88, 91 f., 111 f., 116, 127, 129, 131, 153 f., 157, 165 f., 168, 176 – 178, 184, 188 Julião, Francisco 206, 217 Jurisprudence 34, 38, 50, 58, 84, 93, 127, 142, 146, 153, 164, 169 f., 192, 207, 229 Katznelson, Ira 88 Kieffer, Monique 71, 84, 89 Kirk, Neville 51, 58, 83 Kubitschek, Juscelino 97 Labor and Social Security Statistics Service (SEPT) 125 Labor conditions 25 Labor contracts 17, 48, 70, 103, 146 Labor Courts 1, 4 – 11, 17, 20, 22 – 37, 39 – 47, 52 – 54, 56, 61, 65 – 93, 103 – 106, 108, 110 f., 113, 115, 118 f., 121 – 123, 125, 127 – 132, 134, 136 – 138, 140, 147, 151, 155 – 158, 160 – 162, 164 – 172, 174, 176 – 179, 181, 183 – 185, 187 – 191, 193 – 196, 198, 202 – 205, 208 – 210, 213 – 216, 220 – 223, 225, 227 – 236 – Collective disputes 5, 25 f., 34, 45, 47, 72, 78 – 80, 82 f., 86, 108 f., 111, 119,

Index

126, 128, 139 f., 142, 146 f., 151, 156, 161, 165 f., 169, 171, 179 f., 182 f., 194, 230 – 232 – Conciliation and Arbitration Board 18, 23, 25 f. – Conciliation and Judgment Board (JCJ) 27, 42, 135, 174 f., 178, 194 – Individual disputes 24, 73, 76, 79, 119, 169 f., 231 – Mixed Conciliation Boards 23 f. – Regional Labor Council (TRT) 5, 9, 17, 26, 33, 43, 45, 72, 103, 105, 107 f., 110, 113 – 115, 118, 120 f., 123 – 139, 141 f., 145 – 147, 149 – 157, 166 – 170, 172 – 181, 187 – 189, 191 – 194, 196 – 199, 209, 211, 219 f., 223, 228, 234 – Regional Labor Office (DRT) 108, 154, 161, 173, 191 – Rural Courts 19 – Superior Labor Court (TST) 26, 41, 45 f., 76, 90, 114, 142, 147, 164, 170, 189, 192, 194 – tribunal 1, 6, 17 f., 23, 26 f., 45, 54, 61, 72 f., 76 f., 80, 82, 90, 109 f., 113 f., 116 f., 119 – 121, 126, 143 – 145, 158, 173, 178, 194, 198, 209, 213 f., 218 f., 222, 231, 233 – 235, 237 – Labor law/legislation 6, 10, 15, 17, 19 – 21, 23, 26 – 32, 34, 38 – 41, 47 – 50, 52 – 55, 58 f., 64, 68, 69, 71, 73, 75, 84, 86, 88 – 91, 98, 107, 118, 142, 146, 167, 185, 189, 196, 204, 209, 212, 213, 214 f., 225, 227, 229, 232, 234 – Amendment nº 45, 2004 40, 46, 231, 232 – Consolidation of Labor Laws (CLT) 26, 28, 37, 39, 41, 66, 82, 82, 99, 104, 112, 129, 132, 149, 150, 153, 155, 160, 175 – 177, 189, 192, 195, 197, 198, 204, 205, 207, 208, 220, 230, 234, 236 – Decree nº 9.070 of 1946 108, 153, 155 – Decree nº 431 of 1938 159 – Rural Workers’ Statute, 1963 (ETR) 213 – 217, 220 – Law nº 4.330 of 1º June 1964 183 – Penal Code of 1940 159, 163

259

Labor movement 9, 18, 22, 39, 54, 59 f., 62, 64, 81, 83, 115 f., 123, 129, 133, 137 f., 140 Labor reform 55, 236 Labor relations, labor relations system 1, 7, 9 f., 16, 17, 20 – 22, 25, 33 f., 37 f., 40 f., 45, 47 – 49, 51 f., 54 – 62, 64, 66 f., 72, 78, 80, 88, 105, 108 f., 111, 118, 122, 147, 183, 185, 208 f., 211, 214 f., 219, 227, 229, 232, 235 f. Labor unions, union representation 64, 66, 72, 90, 108, 113, 147, 149, 197 Lacerda, Dorval 82 Lage, Telma 38, 230 f. Landowner 19, 196, 208, 211, 214 – 217, 219 Lanna Júnior, Mário Cléber 68, 73, 79, 81 Lara, Silvia H. 15, 43 Latin America 52, 65, 73, 87, 184, 228 Law Studies 15 Lawyer 1, 7 f., 24, 34, 37 f., 41, 134, 136, 141, 144, 173, 177, 180, 190, 195 – 197, 199, 201, 207 f., 214, 221, 223, 231 Leal, Murilo 116, 155, 182 Leite, Décio Toledo 107, 126, 168, 176, 188, 194, 199, 223 f. Liberalism/liberal 17, 29, 31, 45, 47, 49 – 51, 54 f., 57, 61, 66, 70, 87 f., 118, 134, 153 Lichtenstein, Nelson 60 f., 63 f., 66 Lima, Luiz Tenório (Tenorinho) 34, 150, 161, 171, 184 – 194, 196, 198 – 200, 205, 209 f., 216, 220 – 225 Limoncic, Flávio 66 Linebaugh, Peter 7, Linden, Marcel van der 41, 51, 59, 83 f., 86, 112 Linhares, Maria Yedda 205, 207 f., 213 Lins, Carlos Bandeira 130, 143 – 146, 176 Lispector, Clarice 184 Lockout 70, 82 Lopes, José Sérgio Leite 24, 34, 37, 49, 81 Lothian, Tamara 64, 107 Lott, Henrique (General) 98 Loureiro, Felipe Pereira 116, 122 f., 129 Luce, Frank 35, 216 Luiz, Washington 19

260

Index

Maccalóz, Salete Maria P. 30, 81 Magalhães, Agamemnon 25, 157 f., 174 Malhadas, Julio 32 Malta, Tostes 45 Maranhão, Délio 46 Markey, Raymond 83 Marques, Marcelino 36, 143, 145 Martins, Ibiapaba de Oliveira 190, 195 – 197, 199, 201 Martins, Ives Gandra 32 Mattos, Hebe 15 Mendonça, Joseli Maria Nunes 15, 17 Menezes, Geraldo Bezerra de 80, 90, 111, 159, 164, 199 Menossi, Luiz 126 Mericle, Kenneth S. 73, 184 Merrien, François-Xavier 228 Mexico, Juntas de Conciliacion y Arbitraje; Inter-American Conference on Problems of War and Peace, Chapultepec 72, 84, 160, 206 Miglioli, Jorge 157, 166, 172 Military Court 159 Military Dictatorship (1964 – 1985) 39, 86, 198, 200, 214, 217, 222, 227, 235 Ministry of Labor/Labor Ministry 21, 23 – 28, 53, 72, 81, 108, 125, 161, 165, 174, 176, 187, 196 f., 201 Miranda, Pontes de 89, 143, 145, 158 Montgomery, David 49 Montoro, Franco 202 f. Moraes, Evaristo 17, 21 Moraes Filho, Evaristo de 24, 89 f. Moraes, Irineu Luiz de 203, 205, 206, 218, 221 f. Morel, Regina de Moraes 24, 28, 37 – 39, 90, 231 Moura, Margarida Maria 35, 218 f., 223 Munakata, Kazumi 30 Nascimento, Amauri Mascaro 32, 215 National Confederation of Industrial Workers (CNTI) 152 – 156, 195 National Confederation of Industry (CNI) 122 National Confederation of Rural Workers 197

National Democratic Union (UDN) 161 – 163 National Department of Labor (DNT) 19 f., 24 National Department of Social Security 193 Nationalism/nationalist 4, 70, 85, 88, 106, 123, 152 Nationalist Parliamentary Front ( FPN) 99 National Labor Council (CNT) 20, 26, 28, 72, 81 National Liberating Alliance (ALN) 159 National Security Law 159 Negotiation 7, 9, 34, 37, 47, 51 f., 57, 64, 66, 77, 103, 105 – 107, 110, 112 f., 115 – 118, 123 – 125, 129, 133 – 135, 139 f., 146 – 150, 152, 154 f., 177, 187, 197, 220, 227, 229 – 232 Negro, Antonio Luigi 36, 97, 98, 116, 155 f., 235 Neoliberalism/neoliberal 28 f., 38 f., 41, 230, New State/Estado Novo (1937 – 1947) 2, 22, 23, 25, 29, 33, 38, 69, 81, 86, 92, 93, 157 – 160, 168, 186, 216 New Unionism 53 New Zealand 53, 56, 82 Niemeyer, Waldir 89 Normative power, normative decision 5, 7 – 11, 17, 25 f., 31, 34, 45 – 48, 54, 62, 66 – 68, 71, 82, 84, 86 f., 103 – 105, 109, 118, 112, 121 f., 125, 127, 129, 136, 138 f., 146, 148, 156, 158, 160, 164 – 166, 172, 181, 185, 193, 198, 227 – 232, 235 Nova América mill/plantation 190, 192 – 196, 201, 203, 209, 210, 212, 222 Palacio, Juan Manuel 17, 58, 209 Paoli, Maria Célia 31, 34 Passos, Edésio 163, 231 f. Paternalism/paternalist 190, 217, 219, 233, 235 Patmore, Greg 61 Pazzianoto, Almir 143 Peasants 187 – 189, 203 – 206, 222 Peasant Leagues 202, 206, 216 f., 221 Pelacani, Dante 152 Penteado, José Teixeira 143, 145, 197 Pereira, Anthony 103, 192, 202, 213, 216 f.

Index

Pessanha, Elina G. da Fonte 24, 28, 38 f., 90, 231 Pimenta, Joaquim 21, 223 Pinto, Carvalho 202, Plantation 191, 195 f., 200, 203, 209 – 212, 214, 218 Polanyi, Karl 48 Populism/populist 1 – 3, 233 Portugal 72, 84, 86 Prado, José Roberto Barreto 131, 143, 145, 166 f., Prado Júnior, Caio 213 Presidentialism 99 Price, Richard 51, 59, 63, 83 f., 86, 104, 112, 124, 129, 147, 210, 212 Professional Association of Food Workers of Assis 201 Prosecutor 24, 34, 38 f., 82, 127, 130, 137, 141 f., 150, 152, 155, 164 f., 171, 175 f., 178, 183, 193, 196 f., 215 Public Security Court 159 Puech, Luiz Roberto 30 f., 46, 53, 109, 137, 140 – 142, 144, 152, 155, 163 – 165, 171, 175 f., 178, 192 f., 196 f., 228 Quadros, Jânio

98, 116, 122

Reform/reformism/reformism, basic reform 2, 40, 71, 91, 122, 126, 131, 235 Remuneration 111 f., 128 Repression 19, 22, 55, 57, 64 Republican Progressive Party (PRP) 157 Revolution of 1930/1930 Revolution 1, 21 Rezende, Vinícius de 36, 38 Richard, Lionel 59, 91 Ricoeur, Paul 6 Rights 1 f., 4 – 11, 19, 23, 26, 28, 30 f., 33 – 37, 39 – 41, 43, 46, 49 f., 54, 58, 62, 64, 66, 76 – 78, 80, 107, 111 f., 115, 118 – 121, 139, 142, 146 – 149, 167 f., 170, 178, 181 f., 184 f., 187, 189, 194, 196, 198 f., 202, 204 – 209, 211 – 221, 225, 227 f., 230 – 236 Rogowski, Ralf 54, 72, 77, 90 Romita, Arion S. 31, 68, 71, 75, 78, 81, 86 Rosanvallon, Pierre 48 Rosenstock-Franc, Louis 73, 76, 78, 85

261

Rotta, José 200, 202 f. Rubin, Cherry R. 51, 55 f. Rural Workers/farm workers 4 – 6, 10, 19, 35, 67, 185, 190, 192 f., 195, 197 f., 200 – 205, 207 – 209, 211 – 213, 215 – 217, 219 – 221, 228, 235 Sadka, Joyce 72 Sá, Luiz Carlos de Figueiredo de 130, 143 – 146, 189, 193, 199, 223 Santana, Marco Aurélio 97, 99 Santos Trade Union Forum 152 Santos, Wanderley Guilherme dos 2, 216, 234 São Paulo Trade Union of Hotel Workers and Similar Workers 115 São Paulo Union of Paper and Cardboard Industry Workers 135 Schatz, Ronald 62, 63 Schmidt, Benito Bisso 36 Schmitter, Philippe C. 27, 229 Second National Conference of Farmers and Farm Workers 201 Senate 19, 65, 74 Setti, Paulo André 32, 37, 41 – 43 Shirley, Robert W. 208 Shishkin, Boris 65 Sigaud, Lygia 216, 218 f. Silva, Amauri de Oliveira 154, 169 Silva, Fernando Teixeira da 15, 17, 29 f., 33, 36, 40, 60, 64, 68, 97 – 99, 101, 103, 106, 116, 128, 144, 152, 155, 169, 184, 189, 205, 209, 216, 229 Silva, Francisco Carlos Teixeira da 205 Silva, Luiz Inácio Lula da 54 Singer, Paul 104, 129 Slavery/contemporary 39 f., 48 f. Social History of Labor 35 Socialism/socialist 17, 21, 89 Social law/legislation 18 – 20, 22, 30, 40, 47, 57, 77, 78, 86, 88, 160, 234 Social movements 1 – 5, 222, 235 f. Social question 17, 21, 30, 48 f., 90, 158 Solidarisme 50 Sousa, Humberto Tallarico de 27 Souza, Samuel Fernando 20, 24, 36, 75 Speranza, Clarice G. 37, 77

262

Index

State Department of Labor (DET) 18 Steinfeld, Robert 48 Stolcke, Verena 35, 210 – 212, 215, 218 Stone, Katherine Van Wezel 59, 63 f., 66, 107 Strikes, 1917 general strike in São Paulo; strike of the 300,000; strike of the 400,000; strike of the 700,000; right to 10, 18 f., 37, 49, 53 f., 56, 58, 65, 67, 70, 78, 82, 92, 106 f., 109, 114, 116, 118, 122, 124, 126, 129, 131, 133, 136, 140 f., 146, 148, 153 – 157, 159 – 163, 165 – 178, 181 – 183, 186, 192, 203, 207, 218, 223, 227, 230 Sugar Industry Workers’ Union 193 Sugar mill/plantation 185 – 187, 190 f., 192, 193, 195 – 197, 199, 201, 203, 210, 212, 219 Supiot, Alain 29, 48, 50, 227, 232 Süssekind, Arnaldo 28, 39 Sweden 72 Syllos, Celso Ibson de 221 Syndicate of Mill Owners of the São Paulo State 192 Syndicate of the Electric, Electronic and Similar Appliances Industry of the State of São Paulo 152 f. Thatcher, Margaret 55, 57 Thompson, E. P. 6 f., 33, 218, 220 Three-Year Plan 6, 122 – 124, 128 f. Totalitarianism 63, 70 Trade union 2, 5, 21 f., 26, 31 f., 36 f., 49, 52 – 59, 61 – 63, 66, 70, 73, 76, 79, 83, 88 f., 92 f., 104, 106, 111, 113, 122 f., 126, 146, 148 – 153, 155, 161, 170 f., 180 f., 183, 197, 200, 202 – 205, 210, 213, 217, 223, 227, 229 f., 234 Trade Union Commission 197 f. Trade unionism 49, 52, 54, 56, 58, 62, 64, 74, 139, 150, 186, 202, 229 – 231 Trade Union of the Chemical Industry for Industrial Purposes of the State of São Paulo 179 Trade Union of Workers in the Dairy and Sugar Derived Products and Coffee Roasting and Grinding Industry of São

Paulo, Mogi das Cruzes and São Roque 150 Treaty of Versailles 19 Tucker, Eric 58 Ungari, Paolo 85 Union movement 4, 203 Union of Rural Workers of Assis 191, 193, 195 f., 201 Union of Rural Workers of Piracicaba 202 Union of Small Farmers and Farm Workers of Brazil (ULTAB) 192 Union of Sugar and Ethanol Industry Workers of the State of Pernambuco 186 Union of Sugar Workers of the State of Sergipe 186 Union of Wheat, Corn and Cassava Industry Workers of Antonina 173 United Kingdom 8, 51, 54, 75 United States of America (USA) 9, 23, 49, 51, 52 – 54, 58, 60 – 66, 75, 87, 88, 118, 155 – National Industrial Recovery Act (NIRA) 59 – 61 – National Labor Relations Board (NRLB) 60 – National War Labor Board (NWLB) 61, 62 – New Deal 27, 49, 58 – 63, 66, 87 f., 118 – Norris-LaGuardia Act 59 – Railway Labor Act 59 – Supreme Court 87 – Taft-Hartley Act 63 Urban worker 10, 20, 26, 206 f. Vargas, Getúlio/Vargas/Getúlio, vargism; getulism; Vargas Era 1 – 5, 21 f., 25, 34, 38, 53, 68, 88, 90, 92 f., 151, 157, 190, 202, 206 f., 220, 233 Varussa, Rinaldo J. 27, 37 Vergara, Angela 49 Vianna, Francisco José Oliveira (Vianna, Oliveira) 25, 46, 47, 51, 63, 68 – 70, 80, 84 – 88, 92, 151 Vianna, Luiz Werneck 34, 38, 46, 92, 159 Voluntarism 8, 51 – 54, 56 – 58, 61, 63 f., 67

Index

Wage, wage increase 5, 7 – 9, 17 f., 25, 31, 40, 46, 56 f., 59 – 64, 66, 79, 85, 103 – 107, 109, 111 f., 114 f., 122 – 138, 140 – 142, 146 f., 149, 161, 165, 167, 180, 182 f., 189, 191 f., 194, 204 – 207, 210 – 213, 216, 218, 227 f., 232 Weffort, Francisco 2 Weinstein, Barbara 151

263

Welch, Clifford Andrew 35, 52, 192, 200 f., 203 – 207, 209, 214, 218, 221 f. Wolf, Joel. 33, 116, 168 Workers’ Circle 191 Workers Party 73 World War I 19, 56, 58 World War II 47, 52, 57, 59, 61 f., 88, 160, 186 Wunderlich, Frieda 72, 75, 90