20 December 2013

US Labor Law

Sidney Horowitz’ Booklet, Chapter 6

 Woody Guthrie: “This machine kills fascists”

Chapter 6

US Labor Law

Chapter V discusses laws regulating actions of workers and employers in the “free” job market. This chapter is about labor law, which confers a legal status on unions and establishes the collective bargaining rights and responsibilities of unions and employers.

The Wagner Act (NLRA) and the Taft-Hartley Act – Opposite Intentions

In 1935, in the midst of the Great Depression of 1929, Congress passed the historic National Labor Relations Act (NLRA, or “Wagner Act”). The NLRA not only protected workers from being fired for union activism (Chapter V); it also granted legal recognition to unions and collective bargaining. Congress passed the Act to end waves of historic industry-wide and city-wide (general) strikes that were severely disrupting production, commerce, and profits.

The Wagner Act established the right of private-sector workers to organize unions of their own choice, to picket, and to strike. To protect these rights from employer opposition, it defined many employer actions as “unfair labor practices.” Thus, it became illegal for employers to discriminate against (fire, demote, etc.) workers who joined unions and participated in “protected” union activities, including the right to strike. It also said employers could not dominate, interfere with, or give financial support to a union. And, it said employers could not refuse to bargain (in good faith) with leaders the workers had chosen.

The Wagner Act established the National Labor Relations Board (NLRB) to interpret and enforce the NLRA. As various American presidents have led the country, they have appointed new members to the NLRB, with the result that the NLRB has remade – again and again – regulations that affect the relative strengths of labor and capital. In addition, courts have made, and remade, decisions as to what the law provides. The result is an “evolving labor law.”

In 1947, in the midst of the Cold War and coordinated industry-wide strikes by the newly organized unions, corporations attacked the Wagner Act as giving too much power to unions. The Republican Party majority in Congress then passed the anti-labor Taft-Hartley Act, as a series of amendments to the NLRA. The T-H Act (Labor Management Relations Act, or LMRA) reduced union rights and increased employer rights. For the past 65 years, the T-H Act (as amended) has remained the nation’s most important labor law.

Union Rights, Limitations, and Misconduct

The Taft-Hartley added union “unfair labor practices” to the already-existing employer “unfair labor practices” in the NLRA. Some rules correspond to the employer unfair labor practices. Thus, unions cannot attempt to compel employees to join and/or participate in union activities. And, they must bargain collectively (in good faith) with employers.

The Taft-Hartley also bans many important union activities and forms of struggle, calling them “unfair labor practices.” These restrictions prevent unions from organizing new members and expressing their strength effectively, on both economic and political issues:

1.      Unions cannot engage in “secondary boycotts,” which are boycotts against employers that process or sell goods produced by a company that is involved in a strike. A boycott occurs when people refuse to use, buy, or deal with a company as an expression of protest or disfavor.
2.      Unions cannot engage in “secondary” (“sympathy” or “solidarity”) strikes to help other unions when they are on strike for their own wages and benefits. This outlaws general strikes, in an industry or geographic area. Especially in the era of huge companies with many production/sales/service sites, the right to conduct general strikes is very important.
3.      Mass picketing is illegal, preventing workers from displaying their collective membership power. Only “informational” picketing by small groups is legal.
4.      Political strikes (to influence government actions, including law-making) are not “protected” strikes by the T-H Act, so unions can be sued and workers fired for participating.
5.      The Act excludes supervisory employees from its coverage, so supervisors remain non-union and unable to participate in strikes. In addition, the Act does not consider independent contractors to be “employees” and does not give them the right to form labor unions.
6.      The Supreme Court (1938)[i] ruled that employers can “permanently replace” workers who strike, even though striking is a “protected act” and is the heart of union power. This decision, which employers began to use in the 1980s, has crippled most unions’ ability to strike.

Employers can sue unions for engaging in any “unfair labor practice.” For example, if autoworker local union “B” strikes to support striking local autoworker union “A,” employer “B” can sue union “B” for economic and punitive damages – and can fire “B” members who went on strike. Also, if a union does not obey a judge’s order (injunction) to end a strike, the government can sue the union and jail its leadership for violating a court order.

After a union has won a representation election within a (bargaining) unit of workers, showing that it has majority support (from those who voted), it then has the “right of exclusive representation” for that bargaining unit. Neither individual workers nor minority unions can bargain with the employer. Whatever bargaining agreement is achieved applies to all workers in that unit but not to other workers and employers in the industry.

In return for the “right of exclusive representation,” majority unions have the “duty of fair representation.” This means they must represent and defend all workers in the bargaining unit, including workers who do not like the union or its leadership.

Unions try hard to negotiate contracts that include a “union security” clause requiring all workers covered by the contract to pay dues and join the union. The T-A Act (Section 14b) allows individual states to pass “right-to-work” laws outlawing these “union security” clauses, and 22[ii] states have done so. If the contract does not have a union security clause, some workers do not join the union, preferring to keep their monthly dues (1.5-2.5 hours of pay) in their own pockets. Union supporters call these “right-to-work-for-less” laws since they weaken unions.

Employer Rights

The Taft-Hartley Act provides employers with extremely important rights. These include:
            1. The “free speech” right to campaign against unions during union organizing campaigns and afterward. This includes holding “captive audience meetings” with employees to convince them to oppose unionization.
            2. The right to “lock out” employees, which is the employer’s “strike.”
            3. The right to sue unions for committing “unfair labor practices.” If they win, they can bankrupt the unions.

Public Employees

Federal law allows national government employees to organize unions but denies them the right to strike – and it narrowly limits what subjects they can negotiate. The nation’s 50 states each pass their own labor laws for state and local government employees. In almost all cases, these employees also are denied the right to strike, but most can negotiate a wide range of issues.

Discussion Questions

1. Is the right to join a union a human right? Why?
2. Is the right to strike a human right? Why?

[i] N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 2 L.R.R.M. 610 (1938).


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