Government Regulation of Labor
Relations
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Criminal Conspiracy Trials: 1806-42
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U.S. constitution doesn’t mention unions, Ee relations.
No federal statutes, state statutes, state court decisions to
guide early judicial decision-making
Philadelphia Cordwainers (1806)
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First court case for which there are written records
Grew out of labor dispute involving Er and skilled shoemakers
(cordwainers)
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Workers struck in response to cut by Ers in price paid per pair of
boots produced
Cordwainers indicted and charged w/crime of criminal conspiracy
to raise their wages
Found guilty. First labor law case ever decided in U.S. found that
unions organized w/objective of raising wages were illegal per se
Government Regulation of Labor
Relations

Criminal Conspiracy Trials: 1806-42

Commonwealth v. Hunt (1842)
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Mass. Supreme Court decision, disagreed with Cordwainers
decision and served as basis for new judicial theory of labor
unions and their actions
Case involved bootmakers union in Boston
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Officers indicted for criminal conspiracy, had expelled and fined
bootmaker for violating union work rules
Court found that mere fact that society agreed not to work for Er
who employed nonmember of society was not in itself unlawful
In addition, court found means used by U. were not illegal
Case articulated what is today called “means-ends doctrine”

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If U. uses legal means to attain lawful objective, action protected
by law
Unions not illegal in and of themselves
Government Regulation of Labor
Relations

Labor Injunctions


Unions faced, beginning in 1870s, new legal device not
previously used in labor cases
Injunction is order issued by court to protect property

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Sherman Anti-trust Act of 1890 gave federal courts power to
restrain “combinations in restraint of trade” through use of
injunctions
Injunctions proved source of aggravation for labor leaders until
1932, when their use sharply limited by Norris-LaGuardia
Government Regulation of Labor
Relations

Railway Labor Act (1926)
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First federal statute whose sole purpose was regulation of
labor relations
Major principles
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To prevent interruption of service
To ensure rights to Ees to organize
To provide for independent organizations to represent Ees
To provide for settlement of disputes
To provide for resolution of grievances
Constitutionality determined by Supreme Court in 1930

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For first time Court upheld power of Congress to regulate labormngt relations in a major industry through federal statute
Act covers railway Ees and now airline Ees as well
Government Regulation of Labor
Relations

National Labor Relations (Wagner) Act (1935)


Cornerstone of private sector labor law in U.S.
Influenced by RLA, Norris-LaGuardia Act of 1932,
National Industrial Recovery Act of 1933

Norris-LaGuardia did not provide unions w/any new legal rights
– rather, it gave unions freedom to operate wo/court intervention
through injunctions
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Also made unenforceable “yellow-dog contracts”
NIRA Section 7(a) specifically recognized right of Ees to join
unions, to bargain collectively, and to refrain from joining
“company unions”
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National Labor Board had no enforcement powers
NIRA declared unconstitutional in 1935, Wagner Act passed just
11 days later – many felt it would meet similar fate
Government Regulation of Labor
Relations

National Labor Relations (Wagner) Act (1935)

Section 1: Findings and Policy
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Section 2: Definitions
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Commerce promoted when causes of conflict removed, labor and
mngt sit down and negotiate differences as equals
Specifically excludes government Ees, agricultural Ees, workers
covered by RLA
Section 7: Rights of Ees
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To join labor organizations
To bargain collectively
To engage in other concerted activities
To refrain from such activities (added by Taft-Hartley)
Government Regulation of Labor
Relations

National Labor Relations (Wagner) Act (1935)

Section 8: Er Unfair Labor Practices
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Section 9: Elections
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8a1: to interfere with, restrain, or coerce Ees in the exercise of Section 7
rights
8a3: discrimination for the purpose of discouraging union membership
8a5: refusal to bargain in good faith
Requires that U selected as bargaining representative serve as exclusive
representative of Ees in particular work group
NLRB determines composition of work group which votes in election –
unit determination
NLRB conducts secret ballot elections for purpose of certifying labor
organizations and collective bargaining representatives
Act found to be Constitutional in 1937, by 5-4 decision
Government Regulation of Labor
Relations

Taft-Hartley Act (1947) (Labor-Mngt Relations Act, LMRA)

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Republicans took control of both House and Senate in 1946 elections,
Truman vetoed bill in nationwide radio broadcast, Congress overrode
veto
Amended Wagner Act
Section 1: Findings and Policy

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Section 2: Definitions
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States that public policy of U.S. is eliminating obstruction of commerce
by both Ers and unions
Excluded supervisors and foremen from coverage of NLRA, as amended
Section 7: Rights of Ees

Added right to refrain from U activity (although not from U membership
if there is U shop provision)
Government Regulation of Labor
Relations

Taft-Hartley Act (1947) (Labor-Mngt Relations Act,
LMRA)
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Section 8: Union ULPs
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8b1: Interference
8b2: Discrimination
8b3: Refusal to Bargain in Good Faith
8b4: Secondary Boycotts
8b6: Featherbedding
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Payment for work not done (as distinguished from work done but
arguably not necessary)
Section 8c: “Free Speech” Amendment

Speech alone is not ULP, provided speech does not threaten,
coerce, or promise benefit
Government Regulation of Labor
Relations

Taft-Hartley Act (1947) (Labor-Mngt Relations Act,
LMRA)

Section 8d: Defines bargaining requirements

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Section 9: Elections
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Requires that parties meet and confer in good faith
Provides for decertification elections, creates “election bar” (an
election blocks any subsequent election in same unit for 12
months)
Section 14: Limitations
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Section 14b allows passage of “right-to-work” laws
Currently, 22 RTW states
Government Regulation of Labor
Relations

Taft-Hartley Act (1947) (Labor-Mngt Relations Act,
LMRA)
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New provisions
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FMCS
National Emergency Disputes
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Political Contributions
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Allows President to appoint special board of inquiry to investigate
dispute, 80-day injunction for “cooling-off” period
Unions prohibited from direct campaign contributions to candidates
for national office
Unions, like Ers, form political action committees (PACs),
establish funds separate from dues for political contributions
Federal Ee strikes prohibited
Government Regulation of Labor
Relations

Landrum-Griffin Act (1959) (Labor-Mngt Reporting and Disclosure Act,
LMRDA)
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Created mechanism for federal gov’t to regulate internal U affairs
“Bill of Rights”

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To participate equally in all official affairs
To assemble and express views
To vote on dues increases
To sue union
To copy of collective bargaining agreement
Safeguards established on discipline
Detailed financial reporting required
Unions have right to impose membership qualifications and (under specific
procedures) discipline members for various offenses

However, right to members to resign from U and escape U authority reduces
ability of U discipline to maintain solidarity

E.g., crossing picket line
Government Regulation of Labor
Relations

National Labor Relations Board
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Administers NLRA
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Consists of five NLRB members, General Counsel,
Regional Offices (e.g., Indy)
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Conducts representation elections, investigates and prosecutes
ULPs
Acts in response to petitions and charges
Board members appointed by President, w/consent of Senate, for
5-year terms
NLRA is remedial statute, not criminal

Board may issue cease and desist orders, direct reinstatement
w/back pay
National Labor Relations Board
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Chair, Wilma Liebman (D)
U atty, term expires 8/11
Clinton appointee, twice reappointed by Bush, appt Chair by Obama
Three positions had been vacant since 12/07
Two U attys nominated for the D seats (Craig Becker and Mark Pearce),
mngt atty and Senate staffer nominated for R seat (Brian Hayes)
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Senate committee voted in October 2009 to send nominations to full Senate; McCain
placed hold on Becker
Becker and Pearce recess appointments in April 2010; Hayes and Pearce confirmed June
2010
One vacant position as of August 2010
Regional Offices
Region 25, Indianapolis (also covers Henderson and Owensboro)
LABOR LAW IN PRACTICE: NLRB
DECISIONS AND REFORM

Current NLRB framework for adjudicating U.S. labor law is not without
critics:
•
Major political influences on NLRB decisions.
•
See “Labor Board’s Detractors See a Bias Against Workers,” New York Times,
1/2/05
•
•
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NLRB lacks sufficient remedial power (punitive damages).
The NLRA has also been called into question. Unions favor:
•
•
Expanding coverage to supervisors.
Streamlining the certification process.
•
•
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Several recent NLRB decisions reversed Clinton-era rulings that overturned precedents
set by Republican Boards
•
E.g., decision as to whether nonU ee has right to have colleague accompany
them to investigative or disciplinary meeting w/ mngt
Board to review use of ‘card checks’
Banning use of permanent strike replacements.
Some favor replacing the NLRA
Others argue that assumptions of NLRA, especially the sharp divide
between labor and management, no longer matches the 21st century
workplace.
16
Employee Free Choice Act

Stalled in Congress, due to lack of support from
moderate Senate Democrats
Prospects for card-check dimming, in favor of shortening U
election process to 5-10 days after petition filed (current
median is 38 days)
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Also under consideration is providing U organizers w/ access to Co
property, barring ‘captive audience’ meetings
Clinton NLRB Chair and Stanford Law prof William Gould supports
time limits for elections and increased penalties for ULPs
Business opposes mandated arbitration (if first contract
negotiation not completed within 120 days)
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Note that mandatory arbitration common in public sector in states
banning strikes by uniformed ees but providing impasse-resolution
mechanism (e.g., Michigan, New York, Pennsylvania)
Note also that mandated arbitration increasingly used by business to
resolve rights disputes in nonU employment, as well as consumer
disputes.
Employee Free Choice Act

WSJ editorialized (7/20/09) that “[o]rganizers want the rush because they
know the more time workers have to learn about a union, the less they
usually want one. Once supporters hear the other side of the story, support
dwindles.”
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“[Captive audience] meetings are one of management’s few opportunities to
address workers, since companies are barred from the sort of outreach
allowed to union organizers – such as visiting employees at home.”
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Empirical evidence does suggest that the longer the delay between petition filing and
the election, the lower the likelihood of union victory – delay works to management’s
advantage. But why? True question is what amount of time is required so as to lead to
an informed decision by employee.
Note that Co is perfectly free to mail literature to Ee’s home, and that Co not required
to provide names and addresses of Ees in bargaining unit until after U files election
petition with NLRB – so how exactly does this outreach give unions an advantage? If
business wants Ees to be able to hear both sides of the story, then how exactly does
mngt’s ability to limit Ee solicitation to nonwork time and to bar nonEe organizers
from Co property altogether facilitate an informed decision?
“[M]ost workers show time and again that they don’t want a union.”

The evidence suggests exactly the opposite…
The Demise of the National Labor
Policy: A Question of Social Justice

Conflicting Statutory Purposes

National labor policy has been at cross-purposes with
itself since passage of Taft-Hartley

Wagner Act stated purpose was to promote collective bargaining
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Right of workers to participate in decisions affecting working lives
essential part of social justice
Taft-Hartley concept is neutral guarantor of Ee free choice
between individual and collective bargaining
NLRB can choose between these contradictory purposes
and claim they are conforming to congressional intent
while reaching very different outcomes

Result is not merely revisions in case law but radical changes that
swing labor policy from one purpose to the other
The Demise of the National Labor
Policy: A Question of Social Justice

NLRB’s Role in Making Labor Policy
Lawmaking by Board inevitable, for they must
apply broad statutory language to specific fact
situations
 Given conflicting statutory purposes, Board is in
position of choosing between competing visions of
national labor policy
 President can change labor policy without
legislative changes through appointments to NLRB

 Previous
example of union discipline of those who cross
picket line
The Demise of the National Labor
Policy: A Question of Social Justice

Employer Resistance

Gross asserts that considerable management
opposition is motivated by belief that industrial
democracy and free enterprise are fundamentally
incompatible
 Growing
conviction among Ers that successful
competition in markets requires evading or resisting
unions

Unions and National Labor Policy

Meanwhile, union image has shifted from that of
force for economic and social justice to instrument
of oppression and exploitation
The Demise of the National Labor
Policy: A Question of Social Justice

Thoughts on a National Labor Policy

Gross argues that primary objective of policy
should not be promotion of productivity and
competitiveness, but promotion of social justice
 And

social justice flows from industrial democracy
Ultimate objective of Wagner Act was
establishment, through collective bargaining, of
system of labor-management cooperation based on
mutual interest in success of enterprise
 Argued
that Taft-Hartley undermined this objective by
enabling and encouraging Ers to contest and resist
organization and collective bargaining
POSTCRIPT: THE RISE OF
EMPLOYMENT LAW

Labor law focuses on workers’ collective actions
•
After 1960s, private sector law received little attention by lawmakers, while
employment law exploded
•
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Board has upheld Co’s decision to fire Ee who had asked colleague to testify
before state agency to support her claim of sexual harassement – NLRA prohibits
Ers from retaliating against workers who engage in concerted activity for mutual
protection, but Board found fired Ee was acting only in self-interest
Employment law focuses on individual employment rights.
•
•
•
First, social insurance (workers’ comp, unemployment insurance, social
security) and protective employment standards (minimum wage, maximum
hours and child labor restraints) in the 1930s
Second, restrictions on employment-at-will starting in the 1960s (Equal Pay
Act, Civil Rights Act, Age Discrimination Act, Pregnancy Discrimination
Act, Americans with Disabilities Act)
Third, other employment laws impacted employment conditions beyond
FLSA (OSHA, ERISA, WARN, FMLA)
23
Public Sector Labor Relations

Legal Regulation

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Public ees excluded from coverage under NLRA
Separate legal regulations in each state
Federal Ees
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Received rights to unionize and bargain over working conditions
other than wages and fringes via Kennedy E.O.
In 1970 postal ees provided right to bargain over wages (strike
still illegal)
E.O. replaced w/ Civil Service Reform Act in 1978
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Regulated by Federal Labor Relations Authority
Impasse resolution responsibility of Federal Services Impasse Panel
Public Sector Labor Relations

Legal Regulation

State and local gov’t ees

Some 41 states have legislation that provides at least some public ees w/
right to organize and bargain
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Those wo/ laws primarily in South
Most politically powerful groups tend to have most comprehensive laws
(police, fire, teachers); state gov’t ees tend to have least

First-term Republican governors in Missouri and Indiana (Daniels)
have rescinded bargaining rights of state ees; Maryland’s governor
suspended pay increase negotiated by predecessor

Governors argue public ee unions waste resources and block
restructuring efforts
Some states provide limited right to strike
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PA, e.g., permits strikes by nonuniformed ees if public health, safety,
welfare not endangered
NY, on other hand, provide “2 for 1” penalty (Er gets to keep money)
Strikes do occur even in states making them illegal; less likely where
compulsory interest arbitration provided and where penalties are
consistently enforced