Evolution of the Legal Framework for
Private-Sector Collective Bargaining

History of the labor movement

Development of Public Policy

The role of the courts

Where we are today
1
Public Policy Toward Unions
1800 - 1932
Period of Opposition
1918 - 1932
Transition > Acceptance
1932 - 1947
Period of Support
1947 - 1990’s
Period of Control
1990’s
Transformation???
2
Period of Opposition
In the Absence of Statutory Support, a
Biased Judiciary Succeeded (Through the
Process of Judicial Review) in Producing a
Formidable Obstacle to Union Development
That Began With the Birth of our Nation and
did not End Until the Great Depression 132+ Years Later.
3
Period of Opposition
1806 - Conspiracy Doctrine
“What is legal for one person
became an illegal conspiracy if
several persons join together for
the same purpose”
4
Period of Opposition
1842- Conspiracy Doctrine Revisited
“A Conspiracy cannot be prosecuted
unless either its aims or its methods
are illegal in themselves”
5
Period of Opposition
In Spite of the Courts, and In Spite of
Their Doctrines, Unions Continued to
Grow With the Economy
Employers Needed More Ammunition
to Combat Union Expansion, and
They Found It…
6
Period of Opposition
The Labor Injunction
First Used in England in 1868
and Copied in the U. S. During
the Rail Strikes of the 1870’s
7
Period of Opposition
The Labor Injunction
“An order issued by a Judge at the
request of one party directing a
second party to refrain from some
specific act”
8
Period of Opposition
Sherman Anti-Trust Act - 1890
A law designed to breakup the giant
business monopolies of the late 19th
century .………….was subsequently
interpreted by the Supreme Court to
have similar application to certain
union activities.
9
Period of Opposition
Sherman Anti-Trust Act - 1890
The Supreme Court ruled that
“every contract, combination,
or conspiracy in restraint of
trade (is) Illegal, whether of
business, farmers, or labor”
10
Period of Opposition
Sherman Anti-Trust Act - 1890
This act provided the courts
with statutory reinforcement of
both the conspiracy doctrine,
and the labor injunction.
11
Period of Opposition
Erdman Act - 1898
Attempted to outlaw the
Yellow-Dog Contract.
Declared unconstitutional by
the Supreme Court in 1908.
12
Period of Opposition
Clayton Act - 1914
Attempted to restrain judges
from their use of the Sherman
Act against unions (Danbury
Hatters Case).
13
Period of Opposition
Clayton Act - 1914
When the Supreme Court got
through with this act the labor
movement was once again left
holding an empty bag.
14
Transition Toward to Acceptance
Characterized By:
Emerging
War
public support
Labor Conference Board
Railway
Labor Act - 1926
Statutory
restrain
attempts to
15
Period of Support
Norris - LaGuardia Act - 1932
Denied federal courts the right
to forbid strikes, peaceful
picketing, or other action not
illegal in themselves.
16
Period of Support
Norris - LaGuardia Act - 1932
Dramatically limited the use of
injunctions and outlawed the
Yellow-Dog Contracts
17
Period of Support
NIRA

Encouraged unionization

Attempted to duplicate the
Railway Labor Act

Declared unconstitutional
in 1935
18
Period of Support
National Labor Relations Act - 1935
(Wagner Act)
Became and remains the primary
labor law of the United States
19
National Labor Relations Act - 1935
Section 7
“Employees shall have the right to self
organization, to form, join, or assist
labor organizations, to bargaining
collectively through representatives of
their own choosing, and to engage in
concerted activities, for the purpose of
collective bargaining or other mutual
aid or protection”
20
National Labor Relations Act - 1935
Section 8(a) 1 through 5 - identifies
five Unfair Labor Practices in which
employers are not allowed to engage
21
Unfair Labor Practices of Employers
1. To interfere with, restrain,
or coerce employees who
are exercising their rights
under the law.
22
Unfair Labor Practices of Employers
2. To dominate or interfere with
the forming or administering
of unions, or to contribute
support to them.
23
Unfair Labor Practices of Employers
3. To discriminate in hiring or
in any other term of
employment in such a way
as to encourage membership
in a union.
24
Unfair Labor Practices of Employers
4. To discharge or otherwise
discriminate against employers
for filing charges against the
employer or testifying under
the law.
25
Unfair Labor Practices of Employers
5. To refuse to bargain with the
union representative.
26
National Labor Relations Act - 1935
Section 9 Provides for a
government-supervised secret
ballot election
Additionally the Act established
the National Labor Relations Board
(NLRB) to enforce the Act.
27
Period of Control
Labor-Management Relations Act
1947
Maintains the Central Theme of the
NLRA with Subsequent Modification
Designed to Balance the Rights of the
Employers and Individual Workers
with Those Provided to the Unions in
the Wagner Act.
28
Taft-Hartley Act
Section 7
Modified to “guarantee the rights of
employees to refrain both from
joining unions (except under a
union shop) and from engaging in
other concerted activities”
29
Taft-Hartley Act

Outlawed the closed shop

Protected all concerted activity

Gave the individual states the
option of banning the union shop
agreement. (Sec 14-b)
30
Taft-Hartley Act


National Emergency Powers
provisions are established
FMCS is created
31
Taft-Hartley Act
Enacted Section 8(b) Listing the
Unfair Labor Practices that Apply
Specifically to the Conduct of
Unions
32
Unfair Labor Practices of Unions
1. To coerce employees into or
restrain them from engaging
in union activities.
33
Unfair Labor Practices of Unions
2. To force management to
discriminate against
employees in violation of
the law.
34
Unfair Labor Practices of Unions
3. To refuse to bargain in good faith.
4. To require managers to pay money
for work not done. (Featherbedding)
35
Unfair Labor Practices of Unions
5. To engage in a strike or boycott
to force management to commit
illegal acts.
(Secondary boycotts)
(Jurisdictional strikes)
36
Unfair Labor Practices of Unions
6. To charge excessive initiation
fees and dues where there is a
union shop.
37
Labor-Management Reporting and
Disclosure Act - 1959
Enacted to eliminate the
corruption and racketeering
found in certain unions.
Established a “Bill of Rights”
for every member of a labor
organization.
38
Labor-Management Reporting
and Disclosure Act - 1959
Established administrative
reporting and procedural
rules for unions.
39
Rights of Employees
1. To organize.
2. To bargaining collectively.
3. To expect no discrimination
against them by management
because they are union
members.
40
Rights of Employees
4. To expect no discrimination
against them by management if
they bring charges of unfair labor
practices against the employer.
5. To get a job without first being a
member of a union.
41
Rights of Employees
6. Not to have to join a union
unless the union and the
employer have signed a valid
union shop agreement in one of
the states that do not have right
to work laws.
42
Rights of Employees
7. Not to be charged exorbitant fees
and dues by a union with a valid
union-shop.
8. To receive financial reports from
the union.
43
Transition?
Contemporary Legislative Proposals
Striker Replacement
TEAM Act
(Employee involvement initiatives)
44