National Labor Relations Act (1935)

Thomas C. Kohler

Enacted in 1935, the National Labor Relations Act (NLRA) (49 Stat. 449) is the nation's basic labor relations statute. The act's provisions govern the relationship among employers, employees, and their labor unions in the private sector. The act also established the National Labor Relations Board (NLRB), an independent federal agency that administers and interprets the statute and enforces its terms.

Often described as the "heart" of the act, section 7 of the statute reflects the law's basic purposes. It provides that "employees shall have 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 the purpose of collective bargaining or other mutual aid and protection," as well as the right to refrain from engaging in any of those activities. Since one of the core purposes of the act is to protect the ability of employees to organize themselves freely and to undertake other activities designed to protect and advance their status, the rights set forth in section 7 are guaranteed to all individuals who come within the statute's definition of being an employee. They are not limited to individuals holding union membership.

THREE ASPECTS OF THE ACT

In framing the act, Congress did not invent the practices or institutions of collective bargaining. Instead, Congress simply adopted a system that had been worked out on a gradual, trial-and-error basis by employers and employees over the decades preceding the act's passage. There are three key principals on which the NLRA rests: 1) the exclusivity principle; 2) the notion of free collective bargaining; and 3) the structural autonomy of the bargaining representative of the employees (in other words, the independence of the employees' labor union from the employer).

Exclusivity Principle. The exclusivity principle is a basic feature of American-style collective bargaining. According to the exclusivity principle, the union representative selected by a majority of employees in a workplace becomes the exclusive (sole) representative of all those employees. The principle is simply an expression of the democratic notion of majority rule. The principle requires the employer to deal with the majority-designated representative of its employees on all issues concerning their "wages, hours, and other terms and conditions of employment." The principle prohibits an employer from making changes in employment terms and conditions without consulting the representative. It also prohibits the employer from attempting to avoid the representative by dealing directly with individuals or groups of employees. The act links privileges with duties: the privileged status that the majority representative enjoys carries with it the legally enforceable duty to represent all employees fairly and even-handedly, regardless of whether they support or are members of the union.

Free Collective Bargaining. Free collective bargaining is the second basic principle of the NLRA. The act leaves the decision whether to organize entirely to employees. Once they do select a bargaining representative, the NLRA requires the employer to bargain in good faith with the representative of the employees. The results of the bargaining process, however, are left wholly to the parties themselves, free from governmental intervention or influence. If the parties are unable to reach an agreement, the law leaves it to market forces—such as the application of economic power through strikes, lockouts, and other means—to set the terms that will govern the parties' relationship.

Collective bargaining can best be understood as a private lawmaking system. In the words of the United States Supreme Court, a collective bargaining agreement "is more than a contract; it is a generalized code." This code represents "an effort to erect a system of industrial self-government" through which the entire employer-employee relationship can be "governed by an agreed-upon rule of law." In recognition of the lawmaking character of collective bargaining, the Supreme Court has compared a union's role in the bargaining process with that of a legislature. Not only do the employer and the union make the "law" that governs the employment relationship, they also have the responsibility for administering it. Consequently, collective bargaining agreements typically establish a system to resolve disputes or grievances through arbitration, a process that the union and employer administer together. The arbitration system normally has jurisdiction over nearly every type of dispute that might arise concerning the employer-employee relationship. According to this process, courts do not hear matters that come within the parties' arbitration scheme.

Structural Autonomy. The structural autonomy of the employees' bargaining representative is the third key principle of the collective bargaining system adopted by the NLRA. This principle anchors the system of free collective bargaining. To guarantee employees free choice and freedom of self-organization, the act requires that the employee representative (the union) be solely the agent of the employees and that this representative stand completely independent of the employer. This requirement achieves one of the NLRA's basic goals: to remove barriers to employees' efforts to form autonomous associations, if they so choose, through which employees can engage in the lawmaking process. Section 8(a)(2) of the act forbids employers "to dominate or interfere with the formation or administration of any labor organization or to contribute financial or other support to it." The act broadly defines a "labor organization" as "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work."

HISTORY OF THE ACT AND AMENDMENTS

The version of the NLRA enacted into law in 1935 is often referred to as the Wagner Act, after its chief sponsor, Senator Robert Wagner of New York. The lion's share of the congressional debates over the Wagner Act concerned the language of section 8(a)(2) and the statute's definition of a labor organization. In the years preceding the passage of the NLRA, many large-scale enterprises had appeared and unions had grown. Employers had begun to search for a system of dealing with employees as a group that could act as an alternative to unions and collective bargaining. They came up with a variety of substitute methods for involving workers in managerial decision-making, including semi-autonomous work teams, worker-representatives on company boards, and versions of "unions" sponsored by management. As the participants to the debate understood, the Wagner Act confronted Congress with a clear choice between two distinctly different models of group dealing: on the one hand, self-organized employee associations, and on the other, employer-organized or -sponsored representation schemes.

Congress has made two significant amendments to the NLRA since its enactment. The first set of amendments came through the Taft-Hartley Act in 1947. Among other things, Taft-Hartley added a series of prohibitions against unfair labor practices by unions. These prohibitions largely mirrored those against unfair labor practices by employers that had been set forth in the Wagner Act.

The Taft-Hartley amendments also outlaw most "secondary boycotts ." In a secondary boycott, a union puts economic pressure on an employer with whom it has no dispute to persuade it to stop doing business with an employer with whom the union does have a dispute. In order to prevent this practice the amendments call for restricting the audiences to whom unions can make appeals. These amendments also dealt with aspects of strikes and other forms of economic pressure undertaken by unions. Under Taft-Hartley's "secondary boycott provisions," unions could direct their strikes and economic appeals only at certain audiences: employees and customers of the employer with whom the union has its dispute, but not suppliers of the employer.

Like some other provisions of the NLRA, the Taft-Hartley Amendments have been deeply controversial. They suggest strongly that unions and employee associations are a threat to individual status, and thus attempt to contain their activities. Many people oppose this view of unions and the way the amendments affect union activity. The second set of amendments to the NLRA, the Landrum-Griffin Amendments, passed in 1959, consist chiefly of a series of technical amendments designed to close a series of unintended loopholes in the act's Taft-Hartley provisions.

JUDICIAL OPINIONS AND THE NLRA

The commerce clause of the U.S. Constitution, which gives Congress the power to regulate trade among the states, serves as the constitutional basis for the NLRA. The constitutionality of the statute was sustained by the United States Supreme Court in its 1937 opinion in National Labor Relations Board v. Jones & Loughlin Steel Corp. Subsequently, the Court has had many opportunities to construe the statute. One of the most significant occasions came through the set of cases known as the Steelworkers' Trilogy. These cases produced a series of unusually challenging opinions on the issues of statutory interpretation, separation of powers, and federalism. The Court in these opinions began to fashion a body of law to govern the enforcement of agreements to arbitrate labor disputes.

The Court has heard a second significant line of cases that produced opinions on the NLRA and its amendments. These cases made it necessary for the Court to 1) adjust First Amendment freedom of association issues arising out of the act's requirement that even employees who do not wish to belong to the union are exclusively represented by it, and 2) to resolve conflicts between the act's Taft-Hartley restrictions on union communicative activities and First Amendment freedom of speech guarantees. The union's duty of fair representation was established in the Supreme Court's landmark 1944 opinion in Steele v. Louisville & Nashville Ry. Co., a case that involved discrimination practiced by a union against African-American employees it represented.

A subsequent line of cases involving duty of fair representation concerned the scope of a union's duty to represent individuals in grievances. The first such case produced the Court's 1967 Vaca v. Sipes opinion. Now largely resolved, this line of cases led to an unprecedented degree of substantive court review of union decisionmaking. Another very significant line of cases began with the Supreme Court's 1958 opinion in NLRB v. Wooster Division of Borg-Warner. There, the Supreme Court held that the NLRA makes a distinction between mandatory and permissive topics of bargaining. A mandatory topic settles an aspect of the relationship between the employer and employees. The parties must bargain over such topics and may use strikes, lockouts, and other economic pressure tactics concerning them. In contrast, the parties may discuss a permissive topic, but they are not required to do so. Moreover, they are forbidden to use economic pressure to achieve consensus over a permissive topic. In some important ways, the mandatory-permissive distinction contradicts the notion of free collective bargaining, and allows the courts a role in a process from which Congress had excluded them.

SOCIAL CONSEQUENCES OF NLRA

By any measure, the NLRA represents one of the landmarks of federal legislation. In passing the act, Congress deliberately opted for a system that would involve minimal government intervention in the employer-employee relationship. This is in sharp contrast to the course taken by the rest of the industrialized world. It is no accident that as the practice of collective bargaining has declined, the level of government regulation and intervention in the employer-employee relationship has substantially increased. In his analysis of the American political system, Alexis de Tocqueville, the great nineteenth-century French observer of democracy, insisted that for democracies, progress in all areas, including the future of self-rule itself, would depend on the "science of association"—the ways in which groups within democratic societies associate and work together. NLRA's greatest social contribution is the opportunity—and responsibility—it gives to employees to organize themselves and to determine and administer the law that most directly affects the day-to-day conditions of their lives.

See also: Fair Labor Standards Act; Taft-Hartley Act.

BIBLIOGRAPHY

Derber, Milton. The American Idea of Industrial Democracy, 1865-1965. Urbana: University of Illinois Press, 1970.

Dubofsky, Melvyn. The State and Labor in Modern America. Chapel Hill: University of North Carolina Press, 1994.

Dulles, Foster Rhea, and Melvyn Dubofsky. Labor in America: A History, 4th ed. Arlington Heights, IL: Harlan Davidson, 1984.

Freeman, Richard B., and James L. Medoff. What Do Unions Do? New York: Basic Books, 1984.

National Labor Relations Act

Legislation

By: Robert R. Wagner

Date: July 5, 1935

Source: 29th Congress of the United States. National Labor Relations Act. United States Code. Title 29, Chapter 7, Subchapter II. Available online at 〈http://www.ourdocuments.gov/〉 (accessed April 24, 2006).

About the Author: Senator Robert R. Wagner of New York, a Democrat who served from 1927 to 1949, was the author of the National Labor Relations Act and helped to create the National Labor Relations Board. Wagner sponsored the Social Security Act as well as a wide range of other New Deal reforms.

INTRODUCTION

Organized labor unions in the United States began to gain power in the 1850s, as industrialization grew in the northern states. While guilds had been present during the colonial era and into the early 1800s, organized unions for all trade workers did not emerge until the 1820s; early attempts to control shift length or women's hours led to some successes.

In 1852, the Typographical Union formed the oldest continuing national union in the United States. In 1859, in Philadelphia iron molders created a union, and in 1866, the first national union, the National labor Union, was founded in Baltimore, Maryland. The NLU was a federation of local unions; its primary success was the passage of an eight hour workday for federal workers. By 1873, the NLU lost power during an economic depression, while the Knights of Labor, a new union, rose to prominence.

The Knights of Labor formed in 1869 as a trade union open to women, minorities (in 1883), and immigrants as well as native-born white men. Founder Uriah Stevens, a member of the Garment Cutter's Association, helped bring the union's messages of social revolution—not just economic protection—to the public. By the mid 1880s, the Knights of Labor platform of the eight hour work day, the end of child labor, equal pay regardless of gender, age, or race, and the elimination of the private banking system contrasted with the new national union, the American Federation of Labor, which worked with employers on a more pragmatic level with no element of social change in their platform.

Although the Knights of Labor experienced some successful strikes, the 1886 Haymarket Square Riot, a labor protest of 1500 workers that turned violent when a bomb exploded and killed eleven people, twisted public sentiment against the Knights of Labor. The American Federation of Labor, however, stepped in to fill the gap, but did not permit women and minorities to join.

As industrialization increased in the early 1900s and factories needed large numbers of skilled and unskilled workers, loosely regulated capitalism, with no government safety oversight or bureau of labor, created workplaces with high injury and death rates, high turnover, and increasing tension between workers and owners. The 1911 Triangle Shirtwaist Factory fire in which 150 women and girls were killed ignited public outrage; the doors had been locked and chained from the inside by managers to prevent theft. The next year more than 50,000 textile workers in Lawrence, Massachusetts, led by the Industrial Workers of the World, nicknamed the "Wobblies," went on strike. The strikers faced arrest, violence at the hands of police and militia, and women and children were attacked by police as they attempted to leave town. Local, state, and federal government officials and law enforcement found themselves caught between laborers and industrialists as labor conditions and corporate demands faced off in conflict.

The Department of Labor, founded in 1913, and the 1914 Clayton Act which protected the right to strike and boycott, helped labor unions to expand and advocate for workers. The economic boon of the 1920s, followed by the Great Depression, weakened unions; many employers took this opportunity to create "open shops" or only hire non-union members. Workers who attempted to join unions had faced opposition and intimidation at times throughout the development of unions; as anti-immigrant and anti-socialist sentiment increased in the United States during the 1920s and 1930s, some nativists began to equate unions with socialism and communism, using violence, strike breaking, and company unions to destroy the AFL and other unions.

In 1935, as part of the New Deal series of laws, President Franklin D. Roosevelt signed the National Labor Relations Act.

PRIMARY SOURCE

AN ACT To diminish the causes of labor disputes burdening or obstructing interstate and foreign commerce, to create a National Labor Relations Board, and for other purposes.

FINDINGS AND POLICIES Section 1. The denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce by (a) impairing the efficiency, safety, or operation of the instrumentalities of commerce; (b) occurring in the current of commerce; (c) materially affecting, restraining, or controlling the flow of raw materials or manufactured or processed goods from or into the channels of commerce, or the prices of such materials or goods in commerce; or (d) causing diminution of employment and wages in such volume as substantially to impair or disrupt the market for goods flowing from or into the channels of commerce.

The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.

Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees.

Experience has further demonstrated that certain practices by some labor organizations, their officers, and members have the intent or the necessary effect of burdening or obstructing commerce by preventing the free flow of goods in such commerce through strikes and other forms of industrial unrest or through concerted activities which impair the interest of the public in the free flow of such commerce. The elimination of such practices is a necessary condition to the assurance of the rights herein guaranteed.

It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

SIGNIFICANCE

The National Labor Relations Act created the National Labor Relations Board, a government body that provides oversight for collective bargaining and the creation of unions. In addition, the NRLB investigates labor abuses, union concerns, and disputes. The NLRB conducts secret ballot elections in companies with employees who wish to develop unions. The National Labor Relations Act also protects workers' rights not to join or create unions; union organizers and coworkers cannot pressure others into union creation or membership under the law.

In 1947 Congress amended the act to prohibit unionization in four industries—airlines, railroads, agriculture, and government. The revision of the National Labor Relations Act, commonly called the Taft-Hartley Act, also curtailed union practices such as closed shops and certain forms of boycotting. In addition, the Taft-Hartley Act gave the federal government the power to use an injunction to stop a strike or a lockout if the strike or lockout caused harm to national interests. President Harry S. Truman vetoed the Taft-Hartley Act but Congress overrode his veto and the changes to the original National Labor Relations Act took effect on June 23, 1947.

The National Labor Relations Act and the Taft-Hartley Act have a long history of use. The federal government has used injunctions more than thirty times since its passage in 1947; President Richard Nixon used an injunction to break a dock strike in 1971. President Jimmy Carter invoked the Taft-Hartley Act during coal miner strikes in 1977 and 1978, President William J. Clinton in 1997 to avert an airline pilot strike, and in 2002 President George W. Bush used the provisions in the Taft-Hartley Act to stop a lockout started by shipping companies on west coast docks.

The National Labor Relations Board processes more than 30,000 cases of alleged unfair labor practices each year as part of its express mission, written into the original act, to promote industrial peace.

FURTHER RESOURCES

Books

Dubofsky, Melvin. Hard Work: The Making of Labor History. Champaign, Illinois: University of Illinois Press, 2000.

Fantasia, Rick and Kim Voss. Hard Work: Remaking the American Labor Movement. University of California Press, 2004.

Rosen, Ellen D. A Wobblie Life: IWW Organizer E.F. Doree. Wayne State University Press, 2004.

Web sites

FDR Library. "Franklin Roosevelt's Statement on the National Labor Relations Act (The Wagner Act)." 〈http://www.fdrlibrary.marist.edu/odnlrast.html〉 (accessed April 24, 2006).

NATIONAL LABOR RELATIONS ACT

NATIONAL LABOR RELATIONS ACT. The National Labor Relations Act (NLRA), enacted in 1935, was a major component of President Franklin D. Roosevelt's New Deal, and represented a sea change in national labor policy. Known initially as the Wagner Act, it followed three decades of debate over the role the federal government should play in labor policy. Its authors intended it as a law to extend democratic rights in the workplace by guaranteeing workers the rights to organize and to bargain collectively with their employers. It provided for the establishment of the National Labor Relations Board (NLRB) to administer its provisions.

The Wagner Act stipulated that workers had the right to collective bargaining, outlawed company unions, listed unfair labor practices, and provided governmental processes for the selection of employee bargaining representatives. Because it prohibited employers from interfering with, restraining, or coercing employees in the exercise of their rights to form unions, to bargain collectively, and to engage in other concerted activities, it also protected employees' right to strike. It prohibited discrimination in employment to encourage or discourage membership in a labor organization but permitted "closed shops" established by collective-bargaining agreements between employers and unions with exclusive bargaining rights. It protected employees who file charges or give testimony under the act from being fired or otherwise discriminated against. It also made it unlawful for an employer to refuse to bargain collectively with the representative chosen by a majority of employees in a group appropriate for collective bargaining.

Workers and their advocates initially hailed the Wagner Act as a milestone, for it made union recognition a right rather than an issue decided through overt conflict between labor and management. In the years following the act, numerous large industries such as automobile, electric, rubber, and steel were forced to allow their workforces to unionize. However, the act soon fell under attack, and was seriously compromised in 1947, after which its interpretation and enforcement varied widely along with the political tide. During President Ronald Reagan's administration in the 1980s, further changes brought federal labor law far indeed from the premises of the original National Labor Relations Act.

The first major blow to the NLRA came in 1947, when the Labor Management Relations Act, commonly known as the Taft-Hartley Act, shifted the legal conception of workers' rights from a collective one to an individualistic one. Taft-Hartley passed amid the first stirrings of the Cold War, was born of accusations that organized labor had become too strong and corrupt and was permeated by communists. Where the Wagner Act had protected workers' right to unionize, the Taft-Hartley amendment emphasized their right not to organize. Taft-Hartley outlawed closed shops, authorized the president to intervene in labor disputes with a "national emergency" injunction, required the National Labor Relations Board to seek injunctions against unions involved in secondary boycotts or jurisdictional strikes, and required union officials to sign affidavits swearing they were not and never had been communists. Another proviso stated that union-shop agreements could not be authorized in states where they were forbidden by state law, thus giving antiunion states the power to supersede federal protection of workers. In all other respects the NLRA preempted state laws. The 1947 amendments also reorganized the NLRB, providing for the president to appoint the general counsel, who was assigned statutory responsibility for the investigation of charges of unfair labor practice, the issuance of complaints, and the prosecution of complaints before the board. Thus, the National Labor Relations Board's administration of federal labor law became largely a matter of the political ideology of whichever president was in office. Employers and others who believed unions had too much power hailed the act. Taft-Hartley prompted outrage on the part of labor advocates and liberals, who continue to view it as an antilabor watershed in American labor history and an opening shot in the Cold War era war of suppression of activism and labor rights.

The NLRA was amended again in 1959 by the Labor-Management Reporting and Disclosure Act, commonly known as the Landrum-Griffin Act. These amendments forbade unions from picketing or threatening to picket to force recognition by the employer, or to force the employees to accept the union as their representative, if the union was not certified to represent the employees. The act followed upon a decade of well-publicized Congressional hearings that emphasized union corruption and presented the public with the image of powerful, anti-democratic union leaders, with the Teamsters' Jimmy Hoffa as their poster child. Rather than empowering the rank-and-file union members, however, Landrum-Griffin turned over more power to the National Labor Relations Board, which, as of 2002, was composed of five members appointed (since 1947) by the president subject to approval by the Senate, with each member having a term of five years. The general counsel, whose appointment also must be approved by the Senate, has a term of four years. Headquartered in Washington, D.C., the agency has more than thirty regional offices and eleven smaller field offices throughout the country, and thousands of staff members.

The board members act primarily as a quasi-judicial body in deciding cases on formal records, generally upon review of findings of fact and decisions by its administrative law judges (formerly called trial examiners) in cases of unfair labor practice or upon review of regional-director decisions in representation cases. The NLRB has no independent statutory power of enforcement of its orders, but it may seek enforcement in the U.S. courts of appeals; parties aggrieved by board orders also may seek judicial review.

At the turn of the twenty-first century, most labor historians viewed the National Labor Relations Board as a far cry from what the Wagner Act's authors envisioned. Some labor advocates argue that the NLRB should have more power to protect workers' right to organize. Others argue that rank-and-file union members need to have more control over their unions and that centralizing worker protection in a federal board is inimical to industrial democracy, the original goal of the Wagner Act.

BIBLIOGRAPHY

Gould, William B. Labored Relations: Law, Politics, and the NLRB: A Memoir. Cambridge, Mass.: MIT Press, 2000.

Gross, James A. Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947–1994. Philadelphia: Temple University Press, 1995.

O'Brien, Ruth Ann. Workers' Paradox: The Republican Origins of New Deal Labor Policy, 1886–1935. Chapel Hill: University of North Carolina Press, 1998.

Taylor, Benjamin J., and Fred Witney. U.S. Labor Relations Law: Historical Development. Englewood Cliffs, N.J.: Prentice Hall, 1992.

Tomlins, Christopher L. The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880-1960. New York: Cambridge University Press, 1985.

Frank M.Kleiler/d. b.

See alsoAmerican Federation of Labor–Congress of Industrial Organizations ; Clayton Act, Labor Provisions ; Closed Shop ; Fair Labor Standards Act ; Injunctions, Labor ; Labor Legislation and Administration ; Lockout ; National Labor Relations Board v. Jones and Laughlin Steel Corporation ; Wages and Hours of Labor, Regulation of .