LABOR LAW

An area of the law that deals with the rights of employers, employees, and labor organizations.

U.S. labor law covers all facets of the legal relationship between employers, employees, and employee labor unions. Employers' opposition to recognizing employees' rights to organize and bargain collectively with management has resulted in a system of primarily federal laws and regulations that is adversarial in nature. Modern labor law dates from the passage of the wagner act of 1935, also known as the National Labor Relations Act (NLRA) (29 U.S.C.A. §§ 151 et seq.). Congress has passed two major revisions of this act: the taft-hartley act of 1947, also known as the labor management relations act (29 U.S.C.A. §§ 141 et seq.), and the landrum-griffin act of 1959, also known as the Labor Management Reporting and Disclosure Act (29 U.S.C.A. §§ 401 et seq.).

The railroad and airline industries are governed by the Federal Railway Labor Act (45 U.S.C.A. § 151 et seq.), originally passed in 1926 and substantially amended in 1934. Federal employees are covered by the separate Federal Service Labor Management and Employee Relation Act (5 U.S.C.A. §§ 7101 et seq.). Labor law is also made by the national labor relations board (NLRB), an administrative agency that enforces federal labor statutes, and by federal courts when they interpret labor legislation and NLRB decisions. In addition, state and municipal employees are covered by state law.

A basic principle of U.S. labor law is that the supremacy clause of the Constitution authorizes Congress to prohibit states from using their powers to regulate labor relations. The ability of Congress to preempt state labor laws has been defined largely by the U.S. Supreme Court because the NLRA is imprecise about what states can and cannot do. The Court has set out two basic principles concerning preemption: not all state labor laws are preempted by federal statute, and conduct actually protected by the federal statutes is immune from state regulation. For example, vandalism committed by a union organizing campaign may be subject to state criminal and civil sanctions. A strike in an industry subject to the NLRA that is aimed at improving wages cannot be prohibited by the state.

Historical Background

Labor law traces its roots to the early 1800s, when employees who banded together to strike for improved working conditions were branded as criminals. By the mid-nineteenth century, the law changed to recognize the right of workers to organize and conduct collective bargaining with their employers. Employers, however, were not receptive to unions. Between 1842 and 1932, they routinely used injunctions to stop strikes and to frustrate union organizing. The norris-laguardia act (29 U.S.C.A. §§ 101 et seq.) was passed by Congress in 1932 to curb the use of labor injunctions, preventing employers from going through the federal courts to quash unions. The passage of the Wagner Act three years later signaled the beginning of a new era in labor relations and labor law. The legacy of employer-union conflict shaped the new system of government regulation of labor-management relations.

Modern Labor Law

The NLRA is the most important and widely applicable U.S. labor law. Its section 7 (29 U.S.C.A. § 157) guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively, through representatives of their own choosing, and to engage in other concerted activities for … mutual aid or protection." Employees are also entitled to "refrain from any or all such activities." The act prohibits employers and unions from committing "unfair labor practices" that would violate these rights or certain other specified interests of employers and the general public in various circumstances.

Labor law generally addresses one of three different situations: (1) a union attempts to organize the employees of an employer and to get the employer to recognize it as the employees' bargaining representative; (2) a union seeks to negotiate a collective bargaining agreement with an employer; or (3) a union and employer disagree on the interpretation and application of an existing contract between the two. Within these three situations, specific rules have been created to deal with rights of employees and employers.

Organization and Representation of Employees Under the NLRA neither employers nor unions may physically coerce employees or discriminate against them on the job because they do or do not wish to join a union, engage in a peaceful strike or work stoppage, or exercise other organizational rights. Although an employer is forbidden to discharge peaceful strikers, the employer may hire replacement workers to carry on business.

When the employees of a particular company decide to be represented by a union, they usually contact the union's parent association or local division for aid and guidance. The union may solicit membership by holding meetings to discuss how working conditions can be improved, and by distributing leaflets.

The employees, union, or employer, may file with the NLRB a petition to conduct an election to decide whether the union should be the collective bargaining representative. This petition must meet with the support of at least 30 percent of the employees in the bargaining unit named in the petition. Once the petition has been filed, the NLRB must determine whether any obstacles exist to holding the election. If not, the NLRB will attempt to get the union and employer to agree to an election.

If the union and employer agree to an election, the NLRB conducts a secret ballot election to determine whether the majority of the employees in the bargaining unit desire to be represented by the union. During the election campaign, both employer and union may freely express their views about unionization of employees, but neither may resort to threats or bribes. If the union wins the election, the NLRB will certify it as the exclusive bargaining representative of the employees. The union may then be designated an appropriate bargaining unit of a particular category of workers.

A union is generally entitled to picket or patrol with signs reading "Unfair," for up to 30 days at the place of business of an employer it is trying to organize. To picket longer for organizing purposes, the union must file for an NLRB election. If the union then loses the election, it is forbidden to resume such picketing for a year. The U.S. Supreme Court upheld the right to peaceful union picketing in Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940).

Negotiation of a Collective Bargaining Agreement Collective bargaining is the process in which an employer and an accredited employee representative negotiate an agreement concerning wages, hours, and other terms and conditions of employment. An employer and a union representing its employees have a mutual obligation under the NLRA to bargain with each other in good faith. The primary goal of collective bargaining is to promote industrial peace between employers and employees. The parties have a duty to try reasonably to accommodate differences and reach common ground, but ultimately they have no obligation to enter into a contract.

The federal mediation and conciliation service or state labor agencies may provide parties with mediators to help them negotiate. Mediators act as neutral facilitators. It is a fundamental part of federal labor policy that unions and management should resolve their disputes through voluntary collective bargaining and not through the imposition of a solution by the government. If a labor dispute becomes serious enough to significantly affect national health or safety, the president has the statutory authority to obtain an 80-day injunction from the federal courts against any strike or lockout. This procedure has been used over three dozen times since 1947, but rarely since the 1970s.

Pressure to Resolve a Contract Dispute When an employer and a union are unable to resolve their differences and negotiate an employment contract, the parties may use different types of pressure to produce an agreement. These types of pressure include boycotts, strikes, the carrying of signs and banners, picketing, and lockouts.

A labor boycott is any type of union action that seeks to reduce or stop public patronage of a business. It is a refusal to purchase from or to handle the products of a particular employer. Employees may legally exert economic pressure on their employer through a boycott, so long as they act peacefully. But a union is forbidden to engage in a secondary boycott. For example, if a union's primary dispute is with a hardware manufacturer, it may not picket or use other methods to get the employees of a hardware store, who are neutral or secondary parties, to stage a strike at the store in order to force it to cease handling the manufacturer's products.

A strike is a concerted refusal of employees to perform work that they have been assigned, in order to force the employer to grant concessions that the employees have demanded. The right of employees to strike is protected by the courts. A lawful strike must be conducted in an orderly manner and may not be used as a shield for violence or crime. Intimidation and coercion in the course of a strike are unlawful. The peaceful carrying of signs and banners advertising a labor dispute is ordinarily a lawful means to publicize employees' grievances against an employer.

Picketing consists of posting one or more union members at the site of a strike or boycott, in order to interfere with a particular employer's business or to influence the public against patronizing that employer. It can be reasonably regulated. Lawful picketing is peaceful and honest. The use of force, intimidation, or coercion on a picket line is not constitutionally protected activity. In addition, employees are not acting within their rights when they seize any part of the employer's property.

A lockout is an employer's refusal to admit employees to the workplace, in order to gain a concession from them. In American Ship Building Co. v. NLRB, 380 U.S. 300, 85 S. Ct. 955, 13 L. Ed. 2d 855 (1965), the U.S. Supreme Court upheld the right of an employer to lock out employees if the intent is to promote the company's bargaining position and not to destroy the collective bargaining process or the union.

With some frequency, lower federal courts and the National Labor Relations Board have upheld lockouts by employers. In Local 702,International Brotherhood of Electrical Workers v. NLRB, 215 F.3d 11 (D.C. Cir. 2000), the U.S. Court of Appeals upheld a ruling by the NLRB finding that an employer's lockout did not violate the NLRA. Employees of the union in the case resorted to "inside game" tactics, where the employees refused to work voluntary overtime and adhered strictly to company rules to such an extent that it slowed the company's productivity. The union began using this strategy during labor negotiations with the company. The company imposed a lockout of the employees in order to facilitate the negotiations and to counter the effects of the union's strategy. The appellate court, in upholding a decision by the NLRB, found that the employer had legitimate and substantial business justifications for the lockout and that the union had not proven that the employer had acted with an improper motive in initiating the lockout.

Unfair Labor Practices

An unfair labor practice is any action or statement by an employer that interferes with, restrains, or coerces employees in their exercise of the right to organize and conduct collective bargaining. Such interference, restraint, or coercion can arise through threats, promises, or offers to employees.

Reinventing the Workplace: Improving Quality, or Creating Company (Sham) Unions?

Foreign competition, technological change, and concerns about declining productivity have led to significant modifications in the way many U.S. businesses manage their affairs. These changes, which have been championed by a long list of management consultants, have appeared under numerous labels, including quality circles and total quality management (TQM). All of these approaches emphasize that the goal of a business is to achieve a high standard of quality in goods manufactured or services provided. To meet this quality goal, businesses have moved away from top-down management, substituting a team approach. Traditional management personnel and line-level workers meet in committees to discuss and resolve issues within the company concerning product, service, and the way work is organized.

The advocates of teamwork and quality circles have hit a legal brick wall in the National Labor Relations Act of 1935 (NLRA) (29 U.S.C.A. § 151 et seq.). Under the NLRA, sections 2(5) and 8(A)(2), employers are forbidden to create employer-dominated company unions. In Electromation, 309 N.L.R.B. 990 (1992), the National Labor Relations Board (NLRB) ruled that Electromation, a nonunion company, could not sponsor an "action committee" because that committee was, under the NLRA provisions, a labor organization. Additional cases have confirmed the NLRB's position on this issue.

Proponents of quality circles and teamwork argue that the NLRA is an antiquated set of laws, based on a period of U.S. history when businesses used every tool at their disposal to subvert unions and union organization. The adversarial posture of labor and management may have made sense in the past, this argument goes, but it is counterproductive in an economy that must adapt quickly to world market forces. The most radical proposal by critics of the NLRB's position on this issue is to abolish the NLRA altogether.

More moderate proponents argue instead for changes in the NLRA to permit committees, teams, and more of what they call workplace democracy. They point out that with the steady decline of union membership and blue-collar jobs, traditional labor-management relations have become irrelevant. They note that white-collar workers, who now dominate the U.S. economy, are less likely to join a labor union. Therefore, worker morale and job satisfaction are better when employees are included in the decision-making process of a business.

Proponents of quality circles also believe that a better educated workforce is capable of making informed decisions about its relations with employers. They assert that the days of the employer's being an absolute sovereign are over. It is more productive to allow nonunion employees to organize within the company based on committees and circles. These workers are entitled to the same type of participatory democracy found in labor unions.

Most proponents would give employees the chance to make up their own mind about their work environment. If a union successfully wins over enough employees to be certified as the legal bargaining agent, that would indicate dissatisfaction with the employer and would be an acceptable outcome. These proponents would object to unions filing complaints with the NLRB over company committees where the employees have rejected union representation in the past. As long as employees want to participate in a company committee or circle, they should be permitted to do so.

Proponents argue that the bar on these types of workplace organizational innovations hurts workers. These innovations give employees more autonomy to plan work schedules, meet deadlines, operate equipment, make repairs, and handle health and safety issues. In the past an employee could suggest a change to management but then had to stand back and observe whether the change took place. In today's workplace an employee wants to implement as well as suggest improvements.

Finally, proponents note that in union-organized companies unions are free to negotiate the participation of employees in teams and quality circles. They suggest that it is unfair to restrict nonunion employees from electing to participate in similar business management ventures.

The U.S. labor movement has resisted vigorously the introduction of employee involvement programs by management in both union and nonunion environments. Labor union leadership views the introduction of employer-sponsored committees as a return to the past and as a way of undercutting the ability of unions to organize white-collar workers.

Opponents point out the sordid history of U.S. labor relations prior to the passage of the NLRA in 1935. Company-sponsored unions were put forward as a way to resolve disputes over wages, hours, and other conditions of employment. Employees believed that these unions acted in good faith to negotiate a contract with management. In reality, these organizations were sham unions, dominated by the employer. The employers would put company spies in them to monitor what was discussed. Employees were either bought off or fired if they proved too effective in their union duties.

Opponents argue that the NRLA is preserving the independence of labor unions. Without its decisions employers of nonunion employees would use TQM, quality circles, and other buzzwords to promote a nonunion status that would place employees at a disadvantage. Employees will quite likely be intimidated in employer-organized groups, and unable to raise or meaningfully discuss certain issues that management does not want to hear. Without a collective bargaining agreement negotiated by a union, opponents maintain, employees will not have job security or promotion protection.

Opponents also question who makes the decisions in these groups. Though the rhetoric suggests empowerment of employees, employee committees are purely advisory, and the employer retains the authority to decide all issues. In addition, because management creates these committees, management can dissolve them at any time. The inequality of power within a nonunion business dictates that the employer can do whatever management wants, regardless of a recommendation by an employee committee.

The NLRA has placed a barrier to new models of business organization. The distrust of labor unions and their difficulty in making inroads with white-collar workers reconfirms to the unions the need for an adversarial posture with management. Those who seek fundamental change in the way U.S. business operates believe that the NLRA must be amended to accommodate a major shift in economic organization.

An unfair labor practice can occur during collective bargaining. In Auciello Iron Works v. NLRB, 517 U.S. 781, 116 S. Ct. 1754, 135 L. Ed. 2d 64 (1996), the U.S. Supreme Court upheld an NLRB ruling that the employer had committed an unfair labor practice. After the union accepted one of the employer's collective bargaining proposals, the employer disavowed the agreement because of good faith doubts about whether the union still commanded a majority of the employees. The Court reasoned that the employer's doubts arose from facts that the employer had known about before its contract offer had been accepted by the union.

Labor laws are not intended to interfere with an employer's normal exercise of discretion in hiring and firing employees. In general, an employer may hire employees based on their individual merit, with no regard to union affiliation. Refusal to hire an applicant owing to affiliation with a labor union is an unfair labor practice.

The motive of an employer in discharging an employee may be a controlling factor in determining whether the discharge is an unfair labor practice. An employer's history of antiunion bias is an extremely important factor in ascertaining the motive for discharge of an employee. An employer may discharge an employee on various grounds without being guilty of an unfair labor practice. Such grounds include misconduct, unlawful activity, disloyalty, and termination of the business operation. In addition, inefficiency, disobedience, or insubordination is proper grounds for dismissal, provided the discharge is not motivated by the employer's reaction to union activity. Firing an employee based on union activity or membership is an unfair labor practice. Furthermore, the filing of unfair labor practice charges or the giving of testimony in a case based on such charges does not warrant dismissal.

In general, an unfair labor practice exists when an employer contributes financial or any other support to a labor organization. An employer must, therefore, remain neutral between competing unions. It is also an unfair labor practice for an employer to dominate or interfere with the formation or administration of any labor organization.

A union commits an unfair labor practice when it causes, or attempts to cause, an employer to hire, discharge, or discriminate against an employee for the purpose of encouraging or discouraging union activity. The same is true when a union restrains or coerces employees in the exercise of their rights to self-organize; to form, join, or assist labor unions; to bargain collectively; or to refrain from any of these activities. The refusal of a labor organization to bargain collectively or to execute a formal document embodying agreement with an employer is another unfair labor practice.

Contract Enforcement and Contract Disputes

Almost every collective bargaining agreement in the United States contains a grievance procedure. In the grievance procedure, the union and the employer try to settle any disputes over the meaning or application of the contract by themselves. If the parties fail, they may invoke arbitration, a procedure that typically calls for referring the issue to an impartial third party for a final and binding determination.

Grievance provisions of a collective bargaining agreement govern the procedure to be followed to settle on-the-job disputes. Typical grievance procedures generally consist of at least three steps: (1) an employee and his or her union steward present their complaint orally to the supervisor, who has the power to settle it; (2) in the event that the matter is not settled at that stage, it is reduced to writing, and the union steward and union officers confer with management; (3) if no agreement is reached, the aggrieved employee may submit the matter to arbitration, which will be binding on all parties.

The arbitration of disputes under a collective bargaining agreement is a matter of contract, and the parties to it may delineate the scope of their arbitration clause. Common grievances settled under arbitration clauses include disputes over seniority rights, employee discipline, pension or welfare benefits, rates of pay, and hours of work. Ordinarily, the issue of whether a strike or lockout is a breach of an agreement is a proper subject for arbitration.

The vast majority of union-employer contract disputes are resolved in a grievance procedure, and most of the rest are disposed of routinely through arbitration. Occasionally, a party will resist arbitration or will refuse to comply with an arbitrator's award. In such a case section 301 of the Taft-Hartley Act authorizes a suit in federal court to enforce the agreement to arbitrate or the arbitrator's award.

The federal courts have enforced a proarbitration policy in labor contracts. If a union strikes over a grievance it could have arbitrated, the employer may secure an injunction against the strike under section 301 of the Taft-Hartley Act, even though ordinarily the Norris-LaGuardia Act prevents the federal courts from enjoining strikes by labor unions.

Regulation of Unions

The Landrum-Griffin Act contains provisions that regulate how labor unions conduct their internal affairs. These provisions seek to prevent union corruption and to guarantee to union members that unions will be run democratically. The act provides a bill of rights for union members, requires certain financial disclosures by unions, prescribes procedures for the election of union officers, and provides civil and criminal remedies for financial abuses by union officers.

Changing Labor-Management Relations

For most of the history of U.S. labormanagement relations, employers and labor unions have seen each other as adversaries. Federal labor law has been shaped by this adversarial relationship, yet shifts in the structure of the U.S. economy have led to more cooperation. In the 1980s unions agreed to givebacks, in which employees agree to reduced wages and benefits in return for job security, particularly in the manufacturing industries. In response, employers have given unions a larger voice in the allocation of jobs and in the work environment itself.

When economic hardships fall on employers, these employers must often negotiate concessions with employees and the unions representing employees in order to save their businesses. After the september 11th attacks in 2001, for instance, many airlines in the United States suffered devastating economic downturns. Many of these airlines were forced to negotiate concessions from unions representing airline employees in order to avoid bankruptcy. For instance, in April 2003, a union representing flight attendants for American Airlines agreed to concessions with the airline that saved the company $340 million. The concessions allowed American to avoid bankruptcy, which some commentators had previously suggested was inevitable.

Since the 1980s, innovations in corporate management that advocate teamwork, quality circles, and total quality management (TQM) have led to legal disputes and questions about the continued vitality of the adversarial model of labor-management relations. Under the NLRA, sections 2(5) and 8(A)(2), employers are prohibited from creating employer-dominated company unions. This prohibition was included in the original NLRA because employers had created sham unions that promised representation for workers but in fact toed the company line.

With the beginning of TQM and quality circles in the late 1980s, some employers have attempted to reinvent the workplace by empowering all levels of workers to help make decisions, instead of delegating this task to a set of managers. The creation of quality circles and employee committees has run afoul of the NLRA provision against employer-created unions. In Electromation, 309 N.L.R.B. 990 (1992), the board held that the company's "action committee" was a labor organization involved with and dominated by the company, in violation of sections 2(5) and 8(A)(2). Electromation was a nonunion company. In E. I. du Pont de Nemours & Co., 311 N.L.R.B. 893 (1993), the board considered identical issues in a union-organized company. The board ruled that a series of safety and fitness committees created by du Pont were illegal under the NLRA. These cases illustrate the skepticism of some unions about the true intentions of management and the difficulty in adjusting to change in some areas of labor law.

further readings

Jasper, Margaret C. 2002. Labor Law. Dobbs Ferry, N.Y.: Oceana.

Lareau, N. Peter, et al. 2003. Labor and Employment Law. Conklin, N.Y.: Matthew Bender.

Squire, Madelyn C. 1993. "Reality or Myth: Participatory Programs and Workplace Democracy—A Proposal for a Different Role for Unions." Stetson Law Review 23.

Wade, David R. 1994. "When Two Worlds Collide: Company Unions and Employee Empowerment in the Aftermath of NLRB v. Electromation and NLRB v. DuPont." Ohio Northern University Law Review 21.

cross-references

Administrative Agency; Bargaining Agent; Boycott; Employment Law; Federal Mediation and Conciliation Service; Landrum-Griffin Act; Norris-Laguardia Act; Taft-Hartley Act; Unfair Labor Practice.

LABOR AND THE LAW

Labor on the Defensive

The coming of the Depression hurt the unions as much as it did any other organization. Like everyone else, the unions were unprepared at first to deal with the drastic changes these new conditions brought to the workplace. Membership declined as layoffs increased and shops closed. Without an effective plan or vision, organized labor's response to the desperation many workers felt was erratic and often ineffectual. Disputes between management and the workers, however, continued and even worsened as the availability of a cheap pool of labor grew. President Roosevelt's approach to the problems of labor in the early days of the New Deal was that of a conciliator. He believed that through cooperation the interests of both would be inevitably served, and toward that end he attempted to gain the workers' confidence by acknowledging that they were entitled to a voice in industry. No other piece of legislation more reflected this attitude than did Section 7(a) of the National Industrial Recovery Act (NIRA), which gave laborers the right to organize and to bargain collectively through unions of their own choosing. There were some in Congress and many more in the unions who believed the president was placing too much faith in the employers' goodwill. They felt that his paternalistic views of the workers' needs and his belief that it was the government's responsibility to administer to those needs were preventing organized labor from getting the recognition and bargaining equality it was due.

Labor Ignored

By 1934, moreover, it was becoming increasingly apparent to the now rapidly growing unions that the intent of Section 7(a) was being subverted. Employers had taken advantage of the provision to establish company unions that they used to factionalize their labor forces. Under the NIRA employers had been given the authority to create and impose industrywide codes controlling not only prices and production but also wages, a power which they frequently abused to protect profits. In practically every industry employers were resisting collective bargaining demands, and doing so successfully. Neither Section 7(a), which lacked any enforcement mechanism, nor the president had been of much help. But Congress was. Later that same year Sen. Robert Wagner introduced a bill to protect the nation's industrial workers by assuring them of the right to organize and by establishing a National Labor Relations Board. The board would be authorized to prohibit unfair practices by employers opposed to the unionization of their employees and to conduct elections to determine whether workers wished to bargain collectively and, if so, whom they desired to represent them for that purpose. Nothing could have conflicted more with the president's approach to the relations between management and labor, and he refused to endorse the bill, thereby delaying its consideration until after Congress had reconvened in 1935.

"Labor's Great Friend."

The year 1935 was to be eventful. The results of the midterm and congressional elections held late the previous year clearly showed that the public was prepared to go yet further in implementing reform. Organized labor had been a major contributor to the Democratic Party's election success and expected to wield greater influence with the membership of the new, far more liberal Congress. None of this was lost on the president, who had become increasingly disappointed with the NIRA and the failure of his national labor policy. With some adroit maneuvering on the part of its sponsor and his allies, the Wagner bill was passed in the Senate and sent to the House of Representatives for its consideration. The president, perhaps sensing that any further opposition to the bill would prove futile, reversed his position in time to see and take credit for the passage of the National Labor Relations Act (the Wagner Act) on 5 July.

The Supreme Court Steps In

In quick succession, the Supreme Court delivered a series of decisions that would affect labor no less than it did any other group or aspect of national life. On 7 January 1935 in what became known as the "Hot Oil Cases" (Panama Refining Company v. Ryan), the Court invalidated the provision in the NIRA that regulated the oil industry, having found the act to be an unconstitutional delegation of legislative power. On 6 May the Supreme Court, by a vote of five to four, found the Railroad Retirement Act—an act similar in structure to the social security bill then under consideration in the Congress—unconstitutional because it was a violation of due process and involved matters beyond the scope of the commerce clause. Then, on 27 May in the "Sick Chicken" case (Schechter Poultry Corp. v. U. S.), the Court invalidated the NIRA itself. Section 7(a) had been eliminated.

… And Labor Steps Out

The National Labor Relations Board, to which the Wagner Act had given birth, began operating on 27 August and was immediately inundated with lawsuits challenging its authority and existence. Spurred on by the Supreme Court's recent opinions in the Schechter case, organizations such as the ultra-conservative, anti-New Deal American Liberty League sought injunctions to paralyze the board and to prevent it from pursuing its congressional mandate. While the government was struggling to respond to the challenge, labor grew increasingly restless and belligerent. Toward the end of the year the major rubber companies announced an increase in work hours with no corresponding increase in pay. The workers reacted swiftly: they struck the plants and in the process refused to give up possession of the company's factories. To its first important test the newly formed Congress of Industrial Organizations (CIO) responded with both aid and leadership, major factors in bringing about the manufacturers' capitulation.

The Battle for Flint

In 1935 automobile-plant workers in Michigan reached the limit of their patience with conditions in their plants. Both the CIO and the United Auto Workers had been hamstrung by the reluctance of the employers to reach an agreement. At meetings convened by the unions' leadership, a proposal to strike was approved, but it was postponed pending further attempts to negotiate. On 30 December, however, the workers took matters into their own hands and shut down the plants. Two weeks later, police and striking workers who were gathered outside the plant clashed. The police, in what became known as the "battle of the running bulls," were forced to retreat, and the sit-down was expanded to include other manufacturing plants in the Chevrolet division. The auto companies were able to obtain an injunction against the strikers, but there was no attempt to enforce it, a factor that contributed to the strike's settlement sometime thereafter.

The Memorial Day Massacre

Many of the country's largest corporations entered into contracts with CIO member unions, effectively recognizing the unions' authority to bargain on behalf of the companies' work-forces. Still, there were others who continued to resist, including Republic Steel. In 1937 the Steel Workers Organizing Committee ordered a work stoppage and posted pickets around many of Republic's mills. At one in south Chicago, the picketing was stopped by the police. A protest was organized and generated a march on the plant's main gate, where waiting police confronted the crowd and, in the melee that followed, killed ten of the demonstrators. Despite the outcry that followed, public reaction to labor's renewed militancy, its use of the sit-down strike to deprive company owners of their property, and its defiance of the law left many Americans with ambivalent feelings respecting labor's methods. When the Supreme Court eventually concluded, in the case of NLRB v. Fansteel Metallurgical Corp., that the sit-down strike was an unconstitutional abridgment of the rights of property holders, the decision was met with some relief by many citizens.

The Supreme Court Steps Back … a Little

Whatever effect the president's court-packing plan may have had in 1937, the fact that labor benefited from the rather sudden and startling change in the Supreme Court's position regarding a host of concerns to its membership is undisputed. In 1938, in the case of Lauf v. E. G. Shinner & Co., the Court sustained the constitutionality of the Norris-LaGuardia Act of 1932, which prohibited federal courts from issuing injunctions against strikers in all but certain rare instances. The year before, in National Labor Relations Board v. Jones & Laughlin Steel Corp., the Court had upheld the National Labor Relations Act, laying to rest the fear that the protections it afforded the working man would be driven into oblivion. The decision also meant that the National Labor Relations Board could resume its function, free of the harassment it had suffered since its formation. During that period complaints of unfair labor practices had increased from a few hundred annually to more than nine thousand.

Sources:

Irving Bernstein, Turbulent Years: A History of the American Worker, 1933-1941 (Boston: Houghton Mifflin, 1970);

Robert S. McElvaine, The Great Depression: America, 1929-1941 (New York: Times Books, 1984);

Newsweek (13 February 1937): 10-11;

Newsweek (17 April 1937): 7-9.

Labor Law

BIBLIOGRAPHY

The purpose of labor law is to protect the interests of employers and employees in the workplace. Labor laws grant employers and employees the right to engage in certain conduct such as collective bargaining, strikes, and lockouts, in pursuit of their demands.

In the United States the area of labor law is governed by federal and state statutory law, judicial decisions and regulations, and decisions of administrative agencies. The National Labor Relations Act (NLRA), also known as the Wagner Act, enacted by Congress on July 5, 1935, marks the foundation of modern U.S. labor law. The NLRA covers all employers and employees involved in businesses that affect interstate commerce. The NLRA protects workers’ rights to strike, associate freely with one another, join labor organizations, and bargain collectively without interference. The NLRA also prohibits employers and unions from engaging in “unfair labor practices” and requires both parties to engage in good-faith negotiations to resolve their disputes.

The NLRA was amended in 1947 by the Taft-Hartley Act (29 U.S.C. § 141 et seq.), which was aimed at reducing the number of industrial disputes and strengthening the power of employers in their dealings with unions. The Taft-Hartley Act was a response to problems that emerged during World War II (1939–1945), such as closed-shop and union-shop agreements, secondary boycotts, and strikes that often resulted in violence. Under a closed-shop agreement, employees are required to join the union as a precondition of employment. Closed shops are the opposite of open shops, which are characterized by the unlawful refusal to hire persons or give them preference in hiring based on their membership in a union. Union-shop agreements do not require employees to be union members as a precondition of employment, but do require employees to join the union or pay union dues within a set period of time after being hired.

The Taft-Hartley Act outlawed the closed shop in the United States, but permits the union shop in states that have not enacted “right-to-work” laws. Right-to-work laws are statutes that discourage collective bargaining and prohibit unions from making union membership a condition of employment. Currently, there are twenty-two states that have right-to-work laws, including Florida, Texas, Virginia, North Carolina, Arizona, Georgia, and Nevada. According to the Bureau of Labor Statistics and the U.S. Census Bureau, the share of jobs in the manufacturing sector rose from 25.4 in 1970 to 34.3 in 2000 in right-to-work states, and all right-to-work states registered a net gain in manufacturing payrolls despite the loss of nearly 875,000 manufacturing jobs nationwide during this period. Moreover, from 1978 to 2000, right-to-work states had lower average annual unemployment rates for all but five years. However, in 2000, per capita disposable income was approximately 10 percent higher in unionshop states than in right-to-work states, and both the poverty rate and income inequality remained higher in right-to-work states than in union-shop states.

The National Labor Relations Board (NLRB) was established under the NLRA to hear disputes between employers and employees. The NLRB’s purpose is (1) to prevent and remedy unfair labor practices, whether committed by labor organizations or employers, and (2) to establish whether or not certain groups of employees desire labor organization representation for collective-bargaining purposes, and if so, which union. The NLRB is composed of five members whose five-year terms are staggered. There is a long-standing tradition that the board consist of a split in political party affiliation, usually a 3 to 2 split in favor of the president’s party. The president designates the chairman of the NLRB. The NLRB’s membership as of 2007 included Robert J. Battista (chairman), Wilma B. Liebman, Peter Carey Schaumber, Dennis P. Walsh, and Peter N. Kirsanow.

Usually, both labor and management are represented by attorneys who file grievances in writing with the NLRB, prepare and submit evidence, and argue their positions in the grievances. In cases where the employer-employee relationship is not governed by the NLRA, that relationship may be governed by other federal statutes such as the Federal Service Labor-Management Relations Act (5 U.S.C. § 7101 et seq.) or the Railway Labor Act (29 U.S.C. § 101). State law may also govern the employer-employee relationship where federal statutes do not apply.

Since 2005, new labor legislation has been enacted in several states seeking to improve standards associated with child labor, drug and alcohol testing, equal employment opportunity, human trafficking, the minimum wage, the prevailing wage, time off, wages paid, and worker privacy, among other areas. Currently, seventeen states and the District of Columbia have a higher minimum-wage rate than the federal minimum-wage rate of $5.15 per hour. Kansas and Ohio are the only two states with a minimumwage rate lower than the federal rate.

The labor movement has been instrumental in the establishment of laws protecting workers’ rights around the globe. For example, over 90 percent of all nations have some kind of minimum wage law. Eighteen out of twenty-seven members of the European Union have national minimum wages, and the People’s Republic of China, too, has established a monthly minimum wage for full-time workers and an hourly minimum wage for part-time workers. Moreover, labor-rights advocates in Europe have had success pushing through legislation that strengthens maternity and paternity rights and protects individuals from discrimination on the basis of age, religion, and sexual orientation, as well as gender, race and disability. The 35-hour maximum work week in France and the Working Time Directive in the United Kingdom, which covers working time, rest breaks, and the right to paid annual leave, are two of the most progressive pieces of labor legislation.

With the growth of democracy and capitalism worldwide, labor law will become more important in balancing the interests of employers and employees in the twenty-first century.

SEE ALSO Employment; Labor; Law; Occupational Safety; Regulation; Unions; Wages; Work; Work Week

BIBLIOGRAPHY

Gould, William B. 1994. A Primer on American Labor Law. 4th ed. Cambridge, MA: MIT Press.

Labor and Labor Relations. 1994. American Jurisprudence 48 (2nd. ed.) §§ 1–7. Rochester, NY: Lawyers Cooperative Publishing.

Rifkin, Bernard, and Susan Rifkin. 1979. American Labor Sourcebook. New York: McGraw-Hill.

Wilson, William T. 2002. The Effect of Right-to-Work Laws on Economic Development. A Mackinac Center for Public Policy Report. Midland, MI: Mackinac Center for Public Policy.

Klint W. Alexander

labor law legislation dealing with human beings in their capacity as workers or wage earners. The Industrial Revolution, by introducing the machine and factory production, greatly expanded the class of workers dependent on wages as their source of income. The terms of the labor contract, working conditions, and the relations between workers and employers early became matters of public concern.

Early Labor Law

In England, Parliament was averse to legislating on subjects relating to workers because of the prevailing policy of laissez-faire . The earliest factory law (1802) dealt with the health, safety, and morals of children employed in textile mills, and subsequent laws regulated their hours and working conditions. An act of 1833 provided for inspection to enforce the law. Young mine workers were first protected in 1842, women in 1844. Although labor unions were legalized in 1825, agreements among their members to seek better hours and wages were punishable as conspiracy under the common law until they were legalized in 1871 and 1906.

In colonial America, labor laws limited a worker's ability to raise his wages and legalized such forced labor systems as slavery and indentured servitude. Regulations were nonetheless passed limiting a master's control over servants and slaves and in the 19th cent. labor legislation was passed to improve working conditions. Federal employees were granted a 10-hr day in 1840, but the Supreme Court did not recognize the legality of state legislation that limited the work day to 8 hrs until 1908. Slavery ended with the Civil War and the legal basis for peonage and indentured servitude disappeared by 1910.

As in Great Britain, labor organizing in the United States was discouraged by the common law doctrine that unions represented a conspiracy against the public good. The Massachusetts supreme court abolished the doctrine in 1842, but in the 19th and early 20th cent. courts often prohibited unions for going on strike and generally granted prosecutors wide authority to indict union leaders for violence or property damage that occurred during a strike. Sedition laws passed in World War I were used to crush such unions as the Industrial Workers of the World .

U.S. Labor Law since the Early Twentieth Century

By the early 20th cent. many states had passed laws regulating child labor, minimum wages, and working conditions. Maryland was the first state to pass (1902) workers' compensation for employees injured on the job. The forerunner of the Dept. of Labor had been created in 1884 as a agency in the Dept. of the Interior, and in 1913 it was elevated to cabinet status with the mandate to "foster, promote, and develop the welfare of wage earners." Congress exempted (1916) unions from the antitrust laws, and the use of injunctions in labor disputes, begun in 1877, was outlawed by Congress in 1932, although the use of injunctions was reestablished by law (1947).

Popular unrest and massive poverty during the Great Depression led to a series of landmark labor laws. The National Labor Relations Act of 1935 (the Wagner Act) established the right of workers to organize and required employers to accept collective bargaining as a ruling principle in industry. The Social Security Act of 1935 created the basis for federal unemployment insurance. The Fair Labor Standards Act, or Wages and Hours Act (1938), provided for minimum wages and overtime payments for workers in interstate commerce, thus setting standards for many basic industries.

Strong antilabor sentiment after World War II, resulted in the Taft-Hartley Labor Act , which was passed over the veto of President Truman in 1947. It made secondary boycott and closed shops illegal and gave the President the power to secure an injunction to postpone for 80 days any strike that might affect the national security. Under the act, officers of unions were required to file affidavits that they were not members of the Communist party. Later the Federal Mediation and Conciliation Service was established as an independent agency. Congressional investigations of labor-management corruption led to the passage of the Landrum-Griffin Act in 1959. It guaranteed freedom of speech and of assembly for union members, and it provided for the regular election of union officers by secret ballot and for periodic and detailed financial reports by unions.

In the 1960s increased social activism once again produced a series of landmark labor bills. The Work Hours Act of 1962 provided time-and-a-half pay for work over an 8-hour day or a 40-hour week; the Civil Rights Act (1964) prohibited discrimination on the basis of race, sex, or religion; the Age Discrimination Act in Employment (1967) protected older workers from discrimination; and the Occupational Safety and Health Act (1970) created the Occupational Safety and Health Administration and gave OSHA the power to establish workplace safety rules, inspect workplaces for safety violations, and fine companies that violated safety rules. The Employee Retirement Income Security Act of 1974 created a federal agency to insure many pension plans and established regulations to protect them from mismanagement.

In the 1980s the pendulum swung back again, producing laws and legal decisions that limited labor and the power of labor unions. Cutbacks in federal agencies reduced federal enforcement of many work safety rules; officials appointed by the Reagan and Bush administrations attempted to reduce labor regulations, arguing that they made U.S. industry less competitive in the world market. In 1990 the Supreme Court made it harder for companies to replace union workers with nonunion workers and restricted the ability of a company to use bankruptcy laws to avoid paying pensions, two management tactics that were widely used in the 1980s. By the late 1990s union membership had increased, but the number of union members in the private sector and the percentage of union workers compared to nonunion workers had fallen.

Bibliography

See C. Tomlins, The State and the Unions: Labor Relations, Law and the Organized Labor Movement, 1880-1960 (1985); F. Snyder, Labor, Law and Crime (1987); B. Taylor, Labor Relations Law (1987); Michael Gold, An Introduction to Labor Law (1989); W. Forbath, Law and the Shaping of the American Labor Movement (1991).