The Rise of Legal Protection
3
Courtesy Everett Collection
Learning Objectives
After completing this chapter, you should be able to:
• Explain how legal processes such as yellow dog contracts, injunctions, and antitrust legislation
restrained labor.
• Examine the legislation that was passed prior to World War II that helped unify and protect workers, including
the Norris-LaGuardia Act, the National Industrial Recovery Act, and the National Labor Relations Act of 1935.
• Summarize the major events that occurred after World War II that affected organized labor, such as the
Taft-Hartley Act, the merger of the American Federation of Labor and the Congress of Industrial Unions, and
President John F. Kennedy’s administration.
• Describe the position of labor at the end of the 20th century.
47
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Impeding Union Activity
Section 3.1
Introduction
At the end of the 19th century, intense animosities continued between workers and management. Events like the violent Great Railway Strike of 1877, the Haymarket Square Riot, and
the Homestead Strike exemplify these tensions.
With the turn of the 20th century, these animosities did not disappear; on the contrary, they
heightened, but there was eventual progress. The next sections discuss the legal processes
that were used to keep labor in check, followed by a slow evolution toward the other end of
the spectrum: recognition that labor should have a voice in the workplace.
3.1 Impeding Union Activity
There were three key ways in which the law was used to shut down union activity between
the 1870s and 1930s. These methods included yellow dog contracts, injunctions, and antitrust legislation. Each method was sanctioned by the courts and upheld as a legal way to stop
workers from organizing.
Yellow Dog Contracts
Starting around 1870, employers began using what are referred to as yellow dog contracts.
These contracts stated that as a condition of being hired, the employee agreed not to participate in a union while in the employ of the owner. Refusing to sign such a contract resulted
in not getting the job, so workers complied with these terms. After the contract was signed,
if a union attempted to get workers to join, the owner could sue the union for attempting to
breach the contract between the employee and employer, a wrong known as interference
with a contractual relationship.
Although these contracts were initially upheld as legal and constitutional, they were finally
laid to rest when Congress passed the National Industrial Recovery Act (NIRA) in 1933,
which stated that employees have the right to organize and bargain collectively, free from
interference, thus making it illegal to use yellow dog contracts. Until that time, however, the
yellow dog contract was a highly effective way to halt union activity.
Injunctions
In addition to yellow dog contracts, courts during this era also employed another weapon to
effectively quash union activity—that of the injunction. An injunction is an order issued by a
court that commands the enjoined party either to do a specific act or to refrain from doing a
specific act. For example, an injunction might order a union to cease its strike (commanded
to refrain from doing a specific act) and return to work (commanded to do a specific act). One
of the earliest and most successful uses of the injunction can be found in the Great Pullman
Strike that occurred in 1894.
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Impeding Union Activity
Section 3.1
The Great Pullman Strike
At this time, train travel in the United States was dirty, noisy, and cramped. George Pullman,
a carpenter and engineer, was traveling overnight on a train, uncomfortable as he sat up for
the entire night. He was struck by the fact that train travel could be vastly improved with
luxurious accommodations. This revelation led him to create what he called Pullman sleeping
cars, railroad cars with comfortable chairs and cabins with beds for overnight sleeping. He
then leased these specialized Pullman cars to various train companies, who attached them to
their line of cars. Patrons could travel in luxury and sleep overnight in a bed while the train
continued its journey.
The resulting Pullman Palace Car Company was successful and profitable; so much so that
in the 1880s Pullman founded a town outside of Chicago named Pullman, Illinois. There he
built his factory and provided company housing for his workers and their families, as well
as churches, schools, and stores. The town still exists today and can be viewed in pictures at
http://www.pullmanil.org/town.htm. Workers paid rent to Pullman and bought their groceries from his stores so that, in effect, much of the money they earned was paid back to Pullman; this arrangement became known as a company town.
Pullman Palace Car workers were members of the American Railway Union (ARU). The ARU
represented most railroad workers and was founded in 1893 under the leadership of Eugene
Debs. It had been previously successful in a strike against the Great Northern Railway, shutting
it down for 18 days. In 1894 George Pullman lowered his workers’ wages. The ARU called a
strike and asked every train worker in the nation to join in. Eventually, the successful strike shut
down the entire railway system in the Northeast, causing a major disruption in interstate commerce, rail travel, and the economy. Strikes of this significance made a long-lasting impression
on the American people. It is one thing for workers to shut down a plant, but when commerce
comes to a halt, people’s daily lives are disrupted—rather than feeling allegiance to the workers
and their cause, the public’s reaction is one of anger (Illinois Labor History Society, 2010).
In the case of the Pullman strike, the managers of the railroad had a novel idea: They attached
the Pullman cars to the back of the mail trains. When the strikers delayed the trains, they
delayed the mail, which then became a federal issue. As a result, President Grover Cleveland
had jurisdiction to act under the commerce clause. He called in federal troops, and a huge
melee ensued. An injunction was issued to stop the strike, and Debs was arrested and held in
contempt for failing to abide by the injunction when he refused to end the strike. The resulting 1895 case, In re Debs (In the Matter of Debs) was significant because the U.S. Supreme
Court approved the use of an injunction to stop a labor strike.
Samuel Gompers
An injunction was next used effectively against American Federation of Labor (AFL) president
Samuel Gompers in the 1909 case Gompers v. Buck’s Stove & Range Company (Gompers
v. Buck’s Stove & Range Company, 1911). The AFL published a monthly magazine called the
American Federalist, which contained a “We Don’t Patronize” (which is another way of saying
boycott) list of companies that the union designated as unfair to labor. Buck’s Stove & Range
had refused to give its workers a 9-hour day. As a result, the company appeared on the magazine’s list. When readers saw that the company was unfair to labor, word spread and sales
at Buck’s Stove & Range dropped. The company saw its profits fall and sought an injunction
against Gompers, his fellow officers, and the AFL.
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Impeding Union Activity
Section 3.1
The court agreed, issuing an injunction that prohibited Gompers and the AFL from publishing the list. Gompers had other ideas, however. He refused to obey the order and continued
to publish the list, arguing that his First Amendment free speech rights were impeded by
the issuance of the injunction and that free speech was more important than Buck’s Stove
& Range’s appearance on the list and subsequent loss of business. The court did not agree,
holding that the injunction did not prohibit free speech; rather, it prohibited the boycott. As a
result, Gompers was sentenced to jail for contempt of court for refusing to honor the injunction. However, he was released on bail; the case was appealed to the U.S. Supreme Court,
where it was eventually struck down, so Gompers never served any jail time (Gompers v.
Buck’s Stove & Range Company, 1911).
These cases are representative of the many in which injunctions were used to shut down
workers who called for either a strike or a boycott. Subsequent legislation eventually prohibited this particular use of an injunction in a labor dispute, but it would be some years until
that occurred.
Antitrust Legislation
The third weapon in the antiunion arsenal was the application of antitrust legislation to
union activity. Antitrust laws are concerned with stopping monopolies, or combinations, so
that consumers can buy goods at a price based on the marketplace. Following the Civil War,
numerous business entities combined to form powerful trusts or monopolies. One such
business was the Standard Oil Company, founded by John D. Rockefeller. The creation of such
entities stifled competition by acquiring competitors until none were left. This allowed the
business to set a price for its goods without any other business remaining to compete and
offer a lower price. Under increasing pressure from the general public to end such combinations, in 1890 Congress passed the Sherman Antitrust Act.
Another typical Sherman Antitrust Act case would be one in which two competing businesses
conspired together to diminish competition. Say, for example, that Tire Company A and Tire
Company B had a meeting of their top management in which they decided not to compete against
one another, but instead agreed to set their prices at the same amount. As a consumer, you would
see the effect of such price fixing if you shopped around for tires. Instead of varying prices, you
would find that the cost of a tire from Company A is exactly the same as a tire from Company B.
Therefore, competition between the two businesses is not encouraging them to lower prices.
Instead, by working together, the tire companies have set the price of products, so there is no
competition. When there is no competition, product price does not fluctuate, but instead is
set by the sellers. Standard Oil was one of the first industries to feel the effects of the Sherman Antitrust Act in the 1911 case Standard Oil Co. of New Jersey v. United States, in which the
court divided the company into smaller entities that could then compete against one another.
It may seem strange to think that the same law used to break up combinations and monopolies would apply to unions, but the courts soon applied the act under the theory that unions
behaved like monopolies when they set prices for their wages. The first application of this
theory was in the 1908 Danbury Hatters case, Loewe v. Lawlor (1908/1915). The Danbury
Hatters factory in Connecticut manufactured hats and sold them to buyers within and outside
the state, thus making the business engaged in interstate commerce and subject to federal
law. The United Hatters of North America, a union that consisted of 9,000 members and was
affiliated with the AFL, had organized most of the hat factories in the country but was not
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Section 3.1
Impeding Union Activity
successful at the Danbury Hatters plant, despite the fact that the plant featured dismal working conditions and treated its workers poorly (American Federation of Labor, 1914).
The AFL, the United Hatters, and the workers considered how to respond to the conditions
at the plant. If they went on strike, they reasoned, the company would just replace them with
new workers, which was not prohibited at the time. They decided instead to declare a nationwide boycott. They publicized that Danbury Hatters treated its employees unfairly and asked
the general public not to buy its product. (Since union-made hats had a union label attached
to them, the American public would be able to discern if the hats were union made or not and
could respect the boycott.)
The boycott ensued, and it was a success. Profits at Danbury Hatters dropped significantly.
Searching for a way to recover their losses, the owners of the factory decided to sue the union
and its members for financial damages incurred during the boycott. The lawsuit characterized the boycott as a combination in restraint of trade, which was in violation of the Sherman Antitrust Act.
Since the union asked consumers throughout the United States not to buy the hats, the union
engaged in what is deemed a secondary boycott. In a secondary boycott, neutral parties
such as consumers are asked to apply pressure to the employer, in this case Danbury Hatters,
to force the employer to comply with the union’s wishes. The concerted, or united, activity
between the union and consumers was used to determine that the union was “united in a
combination” and that it was “restraining and destroying interstate trade and commerce,”
thereby violating the act (Danbury Hatters Case, 1908).
Secondary boycotts can be effective tools for unions to employ against owners. They are still
used today in limited circumstances. Figure 3.1 depicts how a secondary boycott works.
Figure 3.1: Diagram of a secondary boycott
A secondary boycott relies on neutral parties to apply pressure to the employer, forcing the employer
to comply with union wishes.
Primary Boycott
Employer A
Danbury Hatters
Secondary Boycott
Neutral Party
Suppliers to Danbury
Hatters (hypothetically)
Neutral Party
Truck drivers refusing
to deliver goods
(hypothetically)
Neutral Party
Customers of
Danbury Hatters
Original boycott starts here
Boycott by Union
Against
Danbury Hatters
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The union involved in the dispute with Employer A
then exerts pressure on all different neutral parties
not to do business with Employer A.
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Turning the Tide Toward Labor
Section 3.2
Not only was the union held in violation of the act, but the union and its members were also held
personally liable for the loss of profits sustained and were assessed damages in the amount of
$252,000. Personal liability means that once the assets of the union were depleted, the workers
themselves would have to pay back the money. In addition, the Sherman Antitrust Act awards
treble damages, so the amount owed was then tripled. These were enormous sums at the time,
and workers made very little money. The court’s holding must have been devastating to the
employees and their families and undoubtedly made them, and other workers throughout the
country, think twice about ever conducting an open and visible campaign again.
After this decision, there was a public outcry about what was perceived to be a misapplication of the law. In response, Congress amended the Sherman Antitrust Act with the Clayton
Antitrust Act of 1914, a federal statute that added language specifically excluding labor
unions from being deemed a combination or conspiracy:
The labor of a human being is not a commodity or article of commerce. . . . Nor
shall such organizations, or the members thereof, be held or construed to be
illegal combinations or conspiracies in restraint of trade, under the antitrust
laws. (Clayton Act, 1914)
Unions and labor leaders alike heralded the Clayton Act. Gompers declared it the “industrial
Magna Carta upon which the working people will rear their construction of industrial freedom”
(as cited in Craver, 1995, p. 21). However, the rejoicing was short lived, and labor was taken
aback when a subsequent court decision in 1921, Duplex Printing Press Co. v. Deering, held
that the Clayton Act did not provide statutory protection to secondary boycotts. The court not
only outlawed labor’s ability to legally engage in secondary boycotts, it also gave employers the
right to sue any union that did so. Declaring secondary boycotts illegal while also giving employers a right to sue proved to be effective in halting these types of boycotts.
3.2 Turning the Tide Toward Labor
With the use of injunctions and antitrust laws to prohibit union activity as well as the public’s
general disdain resulting from the many strikes, it must have seemed like a discouraging time
for labor. After all, they had seen their leader, Samuel Gompers, jailed for contempt of court
and watched as the courts imposed personal fines on Danbury Hatters employees. History
is never without its twists and turns, however, and just as the labor movement seemed at its
lowest ebb, the early 20th century heralded the beginning of labor’s greatest strides toward
unification and legal protection.
The Railway Labor Act of 1926
Between 1917 and 1920, during which time the United States was engaged in World War I,
there was widespread fear that labor unrest could lead to a shutdown of the nation’s railroads.
Mindful that if the railroads shut down, the economy would suffer, the government nationalized
the railroads under the Federal Possession and Control Act in 1916. By taking over the railroads, the government could ensure that no strikes would take place (because military personnel would be available to take over the job of any striking workers). The government argued that
national security was at risk, the quality of the railroads had been degrading, and the president
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Section 3.2
and Congress, under their war powers, had to do something to ensure the railroads’ viability. As
a result, the federal government took the railroads out of the hands of their owners until 1920,
after the war had ended and the threat to national security had diminished.
That same year, Congress passed the Transportation Act of 1920, which created a Railroad
Labor Board to hear disputes between railroad owners and workers, a forerunner to today’s
arbitration process. Although creating such a board represented tremendous progress, parts of
the act were so criticized that the president sought revisions. This time, however, the process
was much different. In an extraordinary recognition of labor, President Calvin Coolidge called
for the railroads and unions to work together on a bill that would ensure peace in the railroad
industry, which culminated in the Railway Labor Act of 1926 (Barrett & Barrett, 2004). Today
the Railway Labor Act governs labor relations in both the airline and railway industries.
The significance of including labor in these meetings cannot be overstated. This was the first
time that labor and management sat down at the behest of the government and worked out an
agreement together. The Railway Labor Act is still in effect today and guarantees “effective and
efficient remedies for the resolution of railroad–employee disputes arising out of the interpretation of collective-bargaining agreements” (Railway Labor Act, 2012). The Adjustment Board
(which replaced the Railroad Labor Board) “was created as a tribunal consisting of workers and
management to secure the prompt, orderly, and final settlement of grievances that arise daily
between employees and carriers regarding rates of pay, rules and working conditions” (Union
Pacific Company v. Sheehan, 1978).
In short, the federal government recognized the importance of unions enough to include representatives in both the formulation and establishment of this agency, signaling a newfound
and profound respect for unions and their concerns.
Norris-LaGuardia Act of 1932
Just a few years later, the United States underwent a major economic depression, beginning
with the stock market crash in 1929. Much pressure was on President Herbert Hoover’s
administration to turn the economy around. Hoover recognized that labor was an essential
ingredient to revitalization and that the laws would have to change for that to occur. Under
his auspices, new legislation that bolstered workers’ rights was passed in 1932, named the
Norris-LaGuardia Act.
Few laws have served to change the face of labor relations as much as this act, in part because
it granted explicit rights that were previously denied. For example, the law stated that the
federal courts could no longer issue injunctions to prevent nonviolent strikes or keep workers from becoming members of labor organizations and peaceably assembling. Furthermore,
the act outlawed yellow dog contracts and allowed secondary boycotts as long as they were
not violent.
Norris-LaGuardia did not ban injunctions altogether, but it did stop the practice of issuing
injunctions without any notice to the union. Without notice, of course, the union could not
know to appear in court or that a court was contemplating the issuance of an injunction, and
therefore could not contest its issuance. With the new requirement mandating notice, however, the union could now testify about the nonviolent nature of its strike or that its strike
would not cause property damage. Such testimony could then result in the court refusing to
issue the injunction and allowing the strike to take place.
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Section 3.2
Turning the Tide Toward Labor
In one of the first cases to test the new law, New Negro Alliance v. Sanitary Grocery Co.
(1938), a group of African Americans formed an alliance, not a union, which picketed a grocery store that refused to employ African American clerks. The protesters were not employees of the store but were concerned about its discriminatory employment practices. They
carried placards that read, “Do Your Part! Buy Where You Can Work! No Negroes Employed
Here!” Because the picketers were not workers or employees of the store, the question of
whether Norris-LaGuardia protected them arose in court. In its opinion, the court stated:
It was intended that peaceful and orderly dissemination of information by
those defined as persons interested in a labor dispute concerning “terms and
conditions of employment” in an industry or a plant or a place of business
should be lawful; that, short of fraud, breach of the peace, violence, or conduct
otherwise unlawful, those having a direct or indirect interest in such terms
and conditions of employment should be at liberty to advertise and disseminate facts and information with respect to terms and conditions of employment, and peacefully to persuade others to concur in their views respecting
an employer’s practices. (New Negro Alliance v. Sanitary Grocery Co., 1938)
Note that the language clearly expands Norris-LaGuardia to “persons interested in a labor
dispute” and does not thereby limit the application of the law to just employers or employees.
In addition, the court stated that injunctions may not be issued if the actions of the protesters
are peaceful and orderly. Thus, the right to protest and express views about the unfair treatment of labor was greatly expanded by this case.
The National Industrial Recovery Act of 1933
Just one year after Norris-LaGuardia,
President Franklin D. Roosevelt took
office in the midst of the continuing
depression. Roosevelt’s administration
is viewed as one of the strongest prounion presidencies in history (Library
of Congress, 2012).
During his 12 years in office, Roosevelt
supported and stewarded numerous
bills through Congress in support of
labor—none more short-lived than
the National Industrial Recovery Act of
1933 (National Industrial Recovery Act,
Courtesy Everett Collection 2012), in which he asked businesses
Franklin D. Roosevelt is typically viewed as a proand workers to suspend the antitrust
union president.
laws, fix prices, and work together to
create codes of fair competition to get
the economy moving. The grand experiment did not last long, however, because the Supreme
Court declared the act unconstitutional in Schechter Poultry (A.L.A. Schechter Poultry Corp. v.
United States, 1935) because it gave the president powers beyond the scope of those granted to
him by the U.S. Constitution.
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Turning the Tide Toward Labor
Section 3.2
The National Labor Relations Act of 1935 (the Wagner Act)
With the NIRA held unconstitutional, Roosevelt needed comprehensive legislation that spoke
to the rights of labor to organize and collectively bargain. It was not long before he replaced
the defunct NIRA with a new law, the National Labor Relations Act (NLRA) of 1935, sometimes referred to as the Wagner Act after its author, New York senator Robert F. Wagner.
This law guarantees employees four historic and fundamental rights: first, the right to join a
labor union; second, the right to collectively bargain through representatives of their own choosing; third, the right to go on strike; and fourth, the right to refrain from union activity. At the
same time, the law prohibits employers from refusing to bargain with unions, interfering with or
restraining the right to join or form a union, attempting to dominate or influence a union, interfering with collective bargaining, and discriminating against union members or union activity.
In short, the act gave labor many of the rights it had been so eagerly seeking but, in contrast,
did not expand the rights of managers. As a result, business was eager to see the law overturned and challenged it in the landmark case NLRB v. Jones & Laughlin Steel Corporation
in 1937. Here the Supreme Court upheld the constitutionality of the act. An excerpt follows:
N.L.R.B. v. Jones & Laughlin Steel Corp.
301 U.S. 1, 57 S.Ct. 615 (1937)
Mr. Chief Justice HUGHES delivered the opinion of the Court.
In a proceeding under the National Labor Relations Act of 1935 the National
Labor Relations Board found that the respondent, Jones & Laughlin Steel Corporation, had violated the act by engaging in unfair labor practices affecting
commerce. The proceeding was instituted by the Beaver Valley Lodge No. 200,
affiliated with the Amalgamated Association of Iron, Steel and Tin Workers
of America, a labor organization. The unfair labor practices charged were
that the corporation was discriminating against members of the union with
regard to hire and tenure of employment, and was coercing and intimidating
its employees in order to interfere with their self-organization. The discriminatory and coercive action alleged was the discharge of certain employees. . . .
The National Labor Relations Board, sustaining the charge, ordered the corporation to cease and desist from such discrimination and coercion, to offer
reinstatement to ten of the employees named, to make good their losses in
pay, and to post for thirty days notices that the corporation would not discharge or discriminate against members, or those desiring to become members, of the labor union. As the corporation failed to comply, the Board petitioned the Circuit Court of Appeals to enforce the order. The court denied
the petition holding that the order lay beyond the range of federal power. We
granted certiorari. We think it clear that the National Labor Relations Act may
be construed so as to operate within the sphere of constitutional authority.
The jurisdiction conferred upon the Board, and invoked in this instance, is
found in section 10(a), 29 U.S.C.A. s 160(a), which provides: “The Board is
empowered, as hereinafter provided, to prevent any person from engaging in
any unfair labor practice affecting commerce.”. . .
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Section 3.2
Section 7. 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 concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
Thus, in its present application, the statute goes no further than to safeguard
the right of employees to self-organization and to select representatives of
their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer.
That is a fundamental right. Employees have as clear a right to organize and select
their representatives for lawful purposes as the respondent has to organize its
business and select its own officers and agents. Discrimination and coercion to
prevent the free exercise of the right of employees to self-organization and representation is a proper subject for condemnation by competent legislative authority. Long ago we stated the reason for labor organizations. We said that they were
organized out of the necessities of the situation; that a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily
wage for the maintenance of himself and family; that, if the employer refused to
pay him the wages that he thought fair, he was nevertheless unable to leave the
employ and resist arbitrary and unfair treatment; that union was essential to
give laborers opportunity to deal on an equality with their employer. . . . Fully
recognizing the legality of collective action on the part of employees in order
to safeguard their proper interests, we said that Congress was not required to
ignore this right but could safeguard it. Congress could seek to make appropriate collective action of employees an instrument of peace rather than of strife.
(NLRB v. Jones & Laughlin Steel Corporation, 1937)
Why was NLRB v. Jones & Laughlin Steel Corporation such an important case? At issue was the
constitutionality of the National Labor Relations Act, with some commentators believing that
the law exceeded the scope of the president’s powers. The case settled once and for all the
constitutionality of the NLRA and the right of workers to collectively organize.
In addition to the sweeping guarantees promised to labor, the National Labor Relations Act
established the National Labor Relations Board, which is the federal administrative agency
that has oversight of labor relations in the United States.
The National Labor Relations Board has two principal functions: (a) to determine and implement through secret ballot elections the free democratic choice by employees as to whether
or not they wish to be represented by a union dealing with their employers and, if so, by which
union; and (b) to prevent and remedy violations of the NLRA, called unfair labor practices, by
employers, unions, or both (NLRB, 2013). Unfair labor practices can occur against employees,
employers, unions, individuals, or a combination of any of these entities.
As previously noted, although the National Labor Relations Act was another step forward for
labor, it was not popular with owners or management. The perception that the NLRA and the
NLRB favored labor and that management and owners were disregarded in the legislation
became a pervasive drumbeat that did not diminish until the act was amended by the TaftHartley Act in 1947.
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Post–World War II Developments in Labor Relations
Section 3.3
Today the National Labor Relations Act is regarded as the most comprehensive and important
foundation of labor relations and labor law in the United States. Interpretations of the act
take up volumes of administrative and case law. Although we cannot address every aspect of
the law, we will nevertheless consider the most important foundational pieces of the act in
Chapter 4.
3.3 Post–World War II Developments in Labor Relations
Following World War II, union membership was at an all-time high; but the perception of unions
by the general public became mixed as more and more strikes took place. As a result of these
strikes, Congress felt compelled to pass legislation that limited union power, clamped down
on the right to strike, and imposed internal controls on financial dealings of unions. Labor had
some victories with the merger of the AFL and the Congress of Industrial Organizations
(CIO) in 1955, making it the largest umbrella organization in the country, but suffered setbacks
as well. By the end of the century, private unions were decreasing in size and power.
The Labor Management Relations Act of 1947: Taft-Hartley
The United States entered World War II in 1941 when Roosevelt was still president. He was
mindful that strikes by workers or lockouts by employers could shut down vital industries
while the war was in progress. He therefore created the National War Labor Board to take
over major industries for the duration of the war (and thereby ensure that the jobs could be
staffed by military personnel, if necessary) and freeze the wages of workers.
Roosevelt died in office in 1945 while the country was still at war. He was succeeded by Harry
S. Truman. When the war came to an end, workers wanted the wage freezes lifted and felt it
was unfair for them to remain in place. Membership in labor unions was at an all-time high,
but so was labor unrest, resulting in numerous strikes.
The frequency of these strikes led this period to be characterized as one of the most tumultuous
in labor history. At the end of World War II, more than 14.5 million workers were union members, or 35% of the overall population in the United States, the highest figure ever in the history
of the country. Yet in 1946 alone there were more than 4,985 strikes. The frequency of strikes
greatly affected the nation’s economy and disrupted commerce. It also exposed the growing tension between unions and management and placed labor in a negative light because the American
public blamed the workers for the disruptions caused by the strikes (Ludwig, 2007).
This era was called the Great Strike Wave of 1946. One colorful event during these strikes
was Truman’s address to Congress in which he asked not only for the power to take over the
striking railroads but also the power to take every striker and put them into the army. In that
speech, Truman asked Congress to develop a long-term labor policy to “prevent the recurrence
of such crises and . . . reduce the stoppages of work in all industries for the future” (Word Has
Just Been Received, n.d.). You can listen to Truman’s speech here: http://historymatters.gmu
.edu/d/5137. While Truman was delivering his speech, he received a note that the railroad
workers had capitulated and ended their strike. Even though that strike ended, the enormity
of 4,985 strikes in 1 year tarnished public perception of unions, resulting in a groundswell of
support to change the law.
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Post–World War II Developments in Labor Relations
Section 3.3
It was in this context of great union unrest and public sentiment condemning the continual
strikes and shutdowns by labor that Congress passed the Labor Management Relations Act
of 1947, better known as Taft-Hartley. The act was named for its two sponsors, Robert Taft, a
Republican senator from Ohio, and Fred Hartley, a Republican representative from New Jersey.
Interestingly, Truman vetoed the act, believing that it would infringe on workers’ free speech.
Despite his opposition, Congress overcame his veto and garnered enough support for passage.
Taft-Hartley is considered tilted in favor of management and is therefore characterized as antiunion because it restricts unions’ powers. It gives workers the right to refuse to participate
in a union except when becoming a union member is a condition of employment. It imposes
on unions the same duty to bargain in good faith as management and prohibits unions from
charging excessive dues. Supervisors are excluded from bargaining units. It gives the president the right to halt strikes if he or she can show that doing so is in the national interest; and
at the same time it outlaws numerous types of labor activities, as follows:
1. Jurisdictional strikes
A jurisdictional strike is when a union refuses to work. These strikes occur to protest
work assignments. For example, suppose a business assigned the electrical work
on its new office building to a company that had no union. Union A goes on strike in
protest that its own members were not given the job.
2. Wildcat strikes
Wildcat strikes occur when workers go on strike without their union’s permission.
3. Solidarity or political strikes
Solidarity or political strikes do not occur because of wages or issues of employment, but to protest a political event in the country.
4. Secondary boycotts
As previously explained, a secondary boycott occurs when workers of one company
exert pressure on another company with whom they deal and refuse to perform any
work that may impact that other company, such as delivering goods.
5. Closed shops
Closed shops are workplaces that make joining a union a condition of employment.
Taft-Hartley declared the closed shop illegal. Another type of shop is a union shop. In
a union shop, the employee may be hired without being a union member but must
join the union within a certain amount of time after he or she is hired.
A union shop is legal under Taft-Hartley only if the union and the employer make it
part of the collective bargaining agreement (CBA). There are, however, right-to-work
states. These states make a union shop illegal. Therefore, union shops are legal under
Taft-Hartley only if the union and the employer agree on it as part of the CBA and only
if not outlawed by state law. Table 3.1 illustrates the application of Taft-Hartley and
right-to-work laws to closed and union shops.
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Section 3.3
Post–World War II Developments in Labor Relations
Table 3.1: Application of Taft-Hartley and state laws to closed and union shops
Definition
Closed shop
Union shop
Employee must join the
union before he or she
can be hired.
Employee must join the
union after he or she is
hired.
Application of
Taft-Hartley
Application of state law
Illegal under Taft-Hartley
Illegal in all states
Legal under Taft-Hartley
if the employer and the
union make it a part of
the CBA
24 states prohibit union
membership or payment
of dues as a condition
of employment
6. Monetary donations
It is illegal for unions to donate money to federal political campaigns.
Taft-Hartley survives to this day in the current National Labor Relations Act. One important
change Taft-Hartley made was giving the NLRB the power to determine the direction of U.S.
labor policy by making decisions in court-like hearings. These hearings, which are described in
greater detail in Chapter 5, are presided over at the NLRB by a board of five people appointed
by the president, often referred to as the board.
An agency shop hires both union and nonunion members. However, employees who are not
members of the union must still contribute to the union dues to cover the costs of collective
bargaining. In a public or governmental union, this payment covers the costs of collective
bargaining and is often referred to as a fair share fee.
One problem with allowing workers to opt out of paying union dues is that by law, a union has
the duty to represent everyone. Yet if it has such a duty but not all of the workers pay for this
representation, then some workers receive the benefit of union representation free of charge
(Becker, 2014).
Landrum-Griffin Act of 1959
The successor to Truman was President Dwight D. Eisenhower. During his second term, in
the late 1950s, it came to light that there was much corruption occurring in labor organizations. The American people were made aware of this widespread corruption thanks in part to
a new invention named television, which carried daily congressional hearings that featured
the testimony of colorful persons such as Teamsters president Jimmy Hoffa. Hoffa talked and
acted like a gangster during the hearings, and his responses were considered crude and disrespectful by many of those watching, especially toward Attorney General Robert F. Kennedy. To
watch testimony from these congressional hearings visit http://www.youtube.com/watch?
v=tsWVzTK0__s&list=PLhFd1Avy_vKGa0vf6jtRUx8AHYLKd0H-b&index=2. For an excellent
biography of Hoffa, visit http://www.youtube.com/watch?v=w6bcro9f5ak.
A general chorus of outrage followed the hearings, and Congress took action with passage
of the Landrum-Griffin Act in 1959, which amended the Labor Management Relations Act
of 1947 (Taft-Hartley). Landrum-Griffin had two main purposes: (a) to make the internal
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Post–World War II Developments in Labor Relations
Section 3.3
governance of labor unions more democratic, and (b) to protect the “rights and interests of
employees and the public generally as they related to the activities of labor organizations,
employers, labor relations consultants, and their officers and representatives” (Labor Management Reporting and Disclosure Act, 1959).
The end result of the legislation was that labor organizations became accountable for their
activities. The law now required them to disclose their financial transactions, protect union
funds and assets, and have standards for the election of officers. Unions must file information reports, constitutions, and bylaws as well as annual financial reports with the Office of
Labor-Management Standards. These documents are all a matter of public record and are
available at http://www.dol.gov/olms/regs/compliance/rrlo/lmrda.htm.
Merger of the AFL and CIO, 1955
In 1955 the AFL and the CIO merged,
becoming today’s AFL-CIO. The history
of the AFL was discussed in Chapter
2. Recall that 38 trade unions formed
under one umbrella organization that
called itself the American Federation
of Labor, under the leadership of Samuel Gompers. As a craft union, the AFL
was committed to embracing members who were skilled tradesmen;
in this way, their belief was that they
could demand more money for their
workers.
© Bettmann/Corbis
The CIO, on the other hand, was not
The
AFL-CIO
was
formed
in
1955
and
continues
to
formed around craft unions, but instead
operate
today.
Here
New
York
governor
W.
Averell
favored industrial unionism. Rather
than unionize around a particular skill, Harriman speaks to members of the AFL-CIO the
members would form in a particular year the group was founded.
type of industry, as is indicated by the
organization’s name. The CIO also had a much different ideology than the AFL. Whereas the AFL
embraced the notion of capitalism, the CIO welcomed socialism and communism.
In the early 1930s three successful strikes led to the creation of the CIO: the Minneapolis
Teamsters Strike of 1934, the 1934 West Coast Longshoremen’s Strike, and the 1934 Toledo
Auto-Lite Strike. These strikes showed that industrial unions could be successful at both
organizing and holding a strike. As a result of those successes, John L. Lewis, a labor leader,
organized a subgroup under the AFL that consisted of the International Typographical Union;
the Amalgamated Clothing Workers of America; the United Textile Workers; the International
Union of Mine, Mill and Smelter Workers; the Oil Workers International Union; and the United
Hatters, Cap and Millinery Workers International Union.
At first, the thinking was that the industrial unions could remain in the AFL. Although these
unions formed the initial CIO under the auspices of the AFL, the AFL opposed the CIO. One
reason for the schism between the two organizations was that the AFL was a much more
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Post–World War II Developments in Labor Relations
Section 3.3
conservative organization (at that time) compared to the CIO, which had liberal leanings
that embraced communism. While two separate organizations, the CIO continued to pick up
steam, be successful, attract members, and hold meaningful strikes, leading to its independence from the AFL.
The AFL and the CIO continued as separate entities until Taft-Hartley was passed in 1947,
requiring that all union members sign a pledge that they were not Communists. This presented a unique problem for the CIO because many of its members were Communists. Those
members were expelled, which resulted in great internal strife for the organization and its
leadership. Finally, new leaders took over the CIO, and coincidentally, new leadership also
headed the AFL, making talks of a merger possible in the 1950s. The CIO also became more
conservative and the AFL more liberal, making them more politically aligned. For instance,
the AFL started to support Democratic platforms. In 1955 both unions officially merged; the
AFL-CIO was formed and continues to this day, with more than 12.5 million members representing 56 unions (AFL-CIO, 2014). To learn more about the AFL-CIO, visit its website at
http://www.aflcio.org.
The Kennedy Administration, Federal Organizing,
and Civil Rights (1960–1963)
John F. Kennedy succeeded Eisenhower and served as president from 1961 to 1963, when he
was assassinated. His presidential term is marked by numerous important and far-reaching legislative enactments. In terms of labor relations, Kennedy was responsible for passing Executive
Order 10988, which gave federal workers the right to organize and collectively bargain. This is
extraordinary legislation, because up until this time, the right to form a union and bargain was
limited to the private sector.
To ensure its success, Kennedy brought in labor experts from outside his administration to
write the legislation. These outsiders included Ida Klaus, a labor lawyer highlighted in this
informative link: http://legalhistoryblog.blogspot.com/2010/10/ida-klaus-1905-1999.html.
She was an attorney and expert in labor law at a time when it was very rare for women to be
admitted to law school or practice law in the United States. “In some classes the men would
stomp their feet so that we could not be heard” (Brozan, 1996, para. 2), she recalled of her
days at Columbia Law School. Kennedy was successful in implementing this executive order,
which ultimately became part of Title VII of the Civil Service Reform Act of 1978.
Another momentous piece of legislation Kennedy signed in 1963 was the Equal Pay Act. This
was an amendment to the Fair Labor Standards Act and was the first law in the history of the
United States to address the inequality of pay based on gender. This law provides that people
in the same workplace be given equal pay for equal work (U.S. Equal Employment Opportunity Commission, n.d.).
Kennedy fought for civil rights but did not live to see passage of the landmark Civil Rights Act of
1964, which makes it illegal to discriminate on the basis of race, color, religion, sex, or national
origin in employment. The legal ramifications of this legislation have been profound and far
reaching, affecting all people in the United States. It is a little-known fact that unions played
an essential role both in the civil rights movement and in the passage of this act. To read about
the role of the Teamsters in passage of the law, as well as civil rights throughout U.S. history,
visit http://teamster.org/content/civil-rights-and-labor-movement-historical-overview.
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The End of the 20th Century
Section 3.4
In the News: Royal Tire Will Pay $182,500 for Wage Discrimination
Based on the article by Marta Jewson in the SC Times on August 5, 2014.
Although the Equal Pay Act was passed in 1963 and may seem like an outdated law, it is still
invoked frequently when women are paid a lower salary than men for the same job. In a 2014
case brought by the Equal Employment Opportunity Commission (EEOC), Christine FellmanWolf, Royal Tire’s human resource director, was paid $35,000 less per year than her predecessor and $19,000 less than the minimum salary for the position under Royal Tire’s own
compensation system.
Trial attorney Jessica Palmer-Denig, who handled the litigation for the EEOC, said in a
statement:
Employers should carefully examine the actual job duties of their employees, not just
employee or job titles, to determine if wages are really equal. If a pay disparity exists
between men and women doing the same work, the employer is well-advised to raise
the salary of the lower-paid employees immediately. (Greenwald, 2014, para. 7)
Discussion Questions
1. The Equal Pay Act is limited to discrepancies on the basis of gender. Do you agree that
workers’ salaries deserve such protection? If so, why? If not, how would you go about
ensuring equity in the workplace?
2. The Equal Pay Act was passed in 1963, yet the case against Royal Tire was settled more
than 50 years later. Are you surprised that such salary discrepancies still exist? If yes,
what legislative actions would you suggest to remedy the situation? If no, why not?
3. After realizing that the Equal Pay Act has not solved the problem of gender pay inequities, what other suggestions can you think of, in addition to legislative enactments, that
could make pay more equal?
3.4 The End of the 20th Century
The years from the end of the Kennedy administration in 1963 until the start of the 21st century may be characterized as a national awakening. The plight of the disenfranchised—be they
African Americans, women, migrant farmworkers, or Latinos—were suddenly in the forefront.
The following descriptions depict the rise of some of these workers as they fought to gain recognition and equality.
Cesar Chavez and the National Farm Workers Association
No one brought home the issues of poverty, injustice, and the hopelessness of migrant workers like Cesar Chavez in the 1960s. Born to migrant workers, he possessed an extraordinary
ability to organize fellow workers through local community grassroots organizing and a philosophy of nonviolence.
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Section 3.4
The End of the 20th Century
Chavez first came to national prominence when he
allied California farmworkers with another coalition, the Agricultural Workers Organizing Committee, to protest the horrendous working conditions
in the grape industry. Both groups later merged in
1966 to become the United Farm Workers Organizing Committee, a highly successful organization that publicized the plight of migrant workers
to the American people. Chavez himself engaged in
numerous fasts to gain sympathy and publicity for
his cause, and he succeeded.
Courtesy CSU Archives/Everett Collection
Cesar Chavez was known for his highly
successful organizing methods.
Other Coalitions
One boycott against the grape industry resulted in
14 million Americans refusing to buy grapes.
Chavez’s highly successful organizing methods
resulted in contracts with growers that gave the
workers wage raises, more safety on the job, and a
medical plan (PBS, 2004). The alliance later became
a member of the AFL-CIO in 1972 and changed its
name to the United Farmworkers Union. At the
height of its powers, the union was also successful
in getting California state legislation passed requiring growers to bargain (PBS, 2004).
Watch This
Three coalitions founded during this same era represented groups that had been long ignored: African A film depicting the life of Cesar Chavez
Americans, Latinos, and women. The Coalition of and the movement, The Fight in the Fields:
Black Trade Unionists formed partially in reaction to Cesar Chavez and the Farmworker’s
dislike of AFL-CIO president George Meany’s stand on Movement, is available at https://www
the 1972 presidential elections, in which he supported .youtube.com/watch?v=HgMkX4eE3bs.
the conservative Richard Nixon, who ultimately won
the presidency. This organization continues today as
a “progressive forum for black workers to bring their
special issues within unions as well as act as a bridge between organized labor and the black
community” (Coalition of Black Trade Unionists, 2011, para. 4).
That same year, the Labor Council for Latin American Advancement was founded as the
grassroots organization of the Latino labor force. This group has more than 1.7 million members and its own television channel on YouTube.
Women in the workforce also felt disenfranchised and in 1974 started their own group called
the Coalition of Labor Union Women to bring attention to issues unique to working women
such as equity in pay and family leave (Coalition of Labor Union Women, 2014). These three
groups represent the efforts of minorities to have a voice in their conditions of employment
that they felt was lacking with traditional labor organizations.
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The End of the 20th Century
Section 3.4
Wins and Losses
Despite the many successes enjoyed by labor, the latter half of the 20th century also saw
setbacks. One such event occurred in 1981 when President Ronald Reagan fired more than
12,000 striking air traffic controllers who were protesting their pay and long hours on the job.
Air traffic controllers are public (governmental) employees who are prohibited from going on
strike. Reagan threatened the workers with the loss of their jobs if they did not return to work
within 48 hours. When the controllers refused Reagan, he not only fired almost all of them,
but also mandated that they not be rehired. Supervisors and nonstriking workers took over
the control towers until others could be trained and hired.
In essence, Reagan’s actions undermined the power of the strike because once he fired the
workers, the strike had no impact on their demands. Professor and labor author Joseph A.
McCartin believes that Reagan’s actions set a tone for the relationship between business and
labor. For example, two private companies, Phelps Dodge and International Paper, followed
suit and also replaced strikers rather than entering into negotiations with workers or their
unions (McCartin, 2011).
On the other hand, a labor strike at the end of the 20th century involving members of the
United Mine Workers at the Pittston Coal Company was considered a win for labor. Pittston
had stopped contributing to a trust established in 1950 for the women and children of retired
coal miners, leaving them without health care. The company also refused to pay overtime and
eliminated clauses in their worker’s contracts that ensured job security if the mines were
ever sold. When the strikers walked off their jobs in 1989, just as in the air traffic controller
strike, Pittston immediately brought in replacement workers.
The strikers employed other methods, however, including sitting down in the roads and
blocking coal shipments, throwing rocks, popping tires, and other acts that damaged property. These actions drew national attention to the strike. At one point, there were 2,000
United Mine Workers striking and 37,000 to 40,000 wildcat strikers. A sit-down strike by
union members that caused the plant to cease production for 4 days ultimately led to the reinstatement of health and retirement benefits and was considered a victory for labor; but at the
same time, the United Mine Workers were penalized more than $64 million for actions during
the strike, and Pittston had to sell many of its plants to nonunion companies, effectively going
out of business and causing the coal miners to lose their jobs (Coalminers Strike, n.d.).
Thus, the 20th century concluded with the biggest strides in federal legislation. The National
Labor Relations Act set up a framework of protection for labor unions, only to be tempered
by Taft-Hartley, which outlawed closed shops, and Landrum-Griffin, which held unions more
accountable. Public unions were recognized but then saw much of their power diminished
when Reagan fired all of the striking air traffic controllers and replaced them. The many
strikes in the private sector led to greater negative opinion among the American public about
unions in general.
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Summary & Resources
Summary & Resources
Summary of Chapter Concepts
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•
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Owners of businesses employed many methods to keep unions out of their shops,
including yellow dog contracts, in which employees agreed not to join a union as
a condition of employment. Another tactic used by employers was injunctions, or
orders from the court to stop labor strikes such as the one that took place in the
Great Pullman Strike.
Antitrust legislation was applied to boycotts and strikes because the courts characterized them as restraints on trade that were in violation of the Sherman Antitrust Act.
The Clayton Act specifically excluded labor unions from being deemed a combination or conspiracy, but the subsequent case Duplex Printing said that unions were
not protected from secondary boycotts.
President Calvin Coolidge had labor and owners meet together to determine the
terms of the Railway Labor Act of 1926, legislation that ensures the peaceful settlement of disputes in the railroad industry.
In 1932 the Norris-LaGuardia Act gave labor many rights, including the right to
strike (as long as it was peaceful), the right to peaceably assemble, and the right to
receive notice before an injunction is issued.
The National Industrial Recovery Act of 1933 asked businesses and workers to suspend the antitrust legislation and to set prices, as long as they were fair; this act was
deemed unconstitutional in the 1935 Schechter Poultry case.
The National Labor Relations Act of 1935, also called the Wagner Act, granted employees the right to form and join a labor union, the right to collectively bargain, and the
right to go on strike. It was upheld in the 1937 case NLRB v. Jones & Laughlin Steel.
The National Labor Relations Act created the National Labor Relations Board, which
oversees elections on whether or not workers wish to be represented by a union. It
holds hearings similar to court cases to oversee unfair labor practices.
The Labor Management Relations Act of 1947 (Taft-Hartley) is federal legislation
that put restrictions on labor by outlawing most types of strikes.
Taft-Hartley was amended by the Landrum-Griffin Act of 1959, which imposed new
restrictions on labor unions in terms of reporting their financial transactions, constitutions, bylaws, and internal governance.
The AFL and CIO merged in 1955, making this a powerful union with millions of
members.
Legislation passed during John F. Kennedy’s presidency granted to all federal workers the right to unionize and collectively bargain under Executive Order 10988.
Kennedy’s administration was also responsible for the Equal Pay Act, which granted
gender-neutral pay at work, and the Civil Rights Act that was ultimately passed in
the Lyndon B. Johnson administration in 1964, which prohibited workplace discrimination on the basis of race, color, sex, national origin, or religion.
Labor suffered a setback when President Ronald Reagan fired striking air traffic controllers in 1981, but the resolution of a contract dispute by the United Mine Workers
with Pittston Coal was considered a victory for labor.
By the end of the 20th century, labor had gained many legal protections but lost
favor with the public due to the many strikes in the last half of the century.
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Summary & Resources
Key Terms
Adjustment Board A tribunal established
to hear grievances between railway workers
and management; it replaced the Railroad
Labor Board.
combination in restraint of trade
An agreement between two or more businesses to overcome normal competition by
fixing prices or diminishing competition.
American Railway Union (ARU) A union
consisting of railway workers founded in
1893; one of the largest industrial unions
of its time, it participated in the Great Pullman Strike.
Eugene Debs One of the founders of the
Industrial Workers of the World (IWW, or
Wobblies) and leader of the boycott by the
American Railway Union against Pullman in
1894 who went to jail for refusing to follow
a court injunction not to strike.
boycott The refusal by consumers to buy
the goods of a specific manufacturer, usually
due to political, ethical, or religious beliefs
about the manufacturer or its product.
Equal Pay Act A 1963 amendment to the
Fair Labor Standards Act that granted equal
pay regardless of gender.
agency shop A business that hires both
union and nonunion members; employees
who are not members of the union must still
contribute union dues to cover the costs of
collective bargaining.
antitrust legislation State and federal
legislation intended to outlaw monopolies,
trusts, and combinations.
Cesar Chavez An activist and successful organizer of migrant farmworkers who
formed the United Farmworkers Union.
Clayton Antitrust Act A 1914 amendment
to the Sherman Antitrust Act that specifically
excluded labor from being deemed a combination or conspiracy.
closed shops Places of employment that
make union membership a condition of
employment.
Coalition of Black Trade Unionists
An organization formed in the 1970s to better represent African American workers.
Coalition of Labor Union Women
A national organization formed in 1974
whose purpose is to unify union women.
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Congress of Industrial Organizations (CIO)
An industrial labor union that eventually
merged with the American Federation of
Labor to create the AFL-CIO.
Duplex Printing Press Co. v. Deering
A 1921 court case that held that the Clayton
Act did not provide statutory protection to
secondary boycotts.
Executive Order 10988 Signed by President John F. Kennedy in 1962, this order
created the right of federal employees to
organize and collectively bargain.
Federal Possession and Control Act
A federal law passed in 1916 that nationalized the railways during World War I.
Gompers v. Buck’s Stove & Range Company A 1909 court case that upheld the
finding of criminal contempt against union
leaders for failing to obey an injunction to
stop printing the company’s name in a union
magazine for alleged unfair labor practices.
Great Pullman Strike A strike by railway
workers against the Pullman Palace Car
Company in 1894.
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Summary & Resources
Great Strike Wave of 1946 An era that saw
thousands of labor strikes taking place.
industrial unionism The formation of
unions around a particular industry.
In re Debs A court case that upheld the use
of an injunction against a union in 1895 to
stop a strike.
Labor Council for Latin American
Advancement An organization of Latino
workers representing the needs of Latinos
in labor.
Labor Management Relations Act of 1947
Better known as Taft-Hartley, a federal law
passed in 1947 that amended the National
Labor Relations Act and imposed restrictions on labor organizations.
Landrum-Griffin Act Popular name for the
Labor Management Reporting and Disclosure Act of 1959.
Loewe v. Lawlor Also known as the Danbury Hatters case, a 1908 court case that
found a union strike was a violation of the
Sherman Antitrust Act.
National Industrial Recovery Act (NIRA)
A short-lived federal statute passed in 1933
that gave labor the right to collectively
bargain and was held unconstitutional in
Schechter Poultry.
National War Labor Board A board created
by President Franklin D. Roosevelt during
World War II to take over the major industries in the country.
New Negro Alliance v. Sanitary Grocery Co.
A 1938 court decision that held that the
Norris-LaGuardia Act applies to anyone
interested in a labor dispute.
NLRB v. Jones & Laughlin Steel Corporation
A 1937 court decision that held that employees can legally organize.
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Norris-LaGuardia Act Federal legislation
passed in 1932 that stated courts could no
longer issue injunctions to prevent nonviolent strikes or prevent workers from
becoming members of labor organizations
and peaceably assembling. It also outlawed
yellow dog contracts and allowed secondary
boycotts as long as they were not violent.
George Pullman Founder of the Pullman
Palace Car Company and Pullman, Illinois.
Pullman Palace Car Company The company founded in 1862 by George Pullman
that built luxurious overnight rail cars.
Railway Labor Act of 1926 A federal law
that provides remedies for the resolution of
railroad–employee disputes arising out of
the interpretation of collective bargaining
agreements.
right-to-work laws Laws passed by individual states that prohibit closed shops.
Schechter Poultry A 1935 court case that
held the National Industrial Recovery Act
was unconstitutional.
secondary boycotts Pressure put on
neutral businesses by workers engaged in a
primary boycott with their employer to try
to force the employer to accede to demands.
Sherman Antitrust Act An 1890 federal
law aimed at curtailing monopolies, combinations, and trusts.
solidarity or political strikes A strike for
the purpose of protesting a political event
happening in the country.
Transportation Act of 1920 A federal law
that created the Railroad Labor Board to
hear disputes between railroad owners and
workers, a forerunner to today’s arbitration
process.
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Summary & Resources
trusts or monopolies When two or more
businesses join together to try and curtail
competition using activities such as price
fixing.
union shop A place of employment that
requires union membership in order to work
there.
United Farmworkers Union An alliance of
farmworkers organized to better the conditions of workers.
yellow dog contract A contract that made
it a condition of employment not to join a
union.
Critical Thinking Questions
1. How did federal legislation support the establishment of unions and union rights?
If such legislation had not been passed, do you think that labor organizations would
have developed? Would they have succeeded in establishing themselves?
2. Which federal labor law do you think was the most significant in the 20th century
and why?
3. Early 20th-century decisions supported shutting down unions with legal processes.
Discuss each of these processes and how and why they would not be enforced today.
Case Feature
The following is an excerpt from a case heard in the Arizona courts concerning whether
or not it is constitutional to make employees contribute money to a union at their place of
work, sometimes referred to as “fair share” when those same employees also benefit from the
union’s collective bargaining agreement.
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL–CIO, LOCAL
238 vs. CITY OF PHOENIX (213 Ariz. 358, 142 P.3d 234, 180 L.R.R.M. (BNA) 2325, 484 Ariz.
Adv. Rep. 9) 2007
The American Federation of State, County, and Municipal Employees, AFL–CIO, Local 2384 is
an employee labor organization recognized by the City as the exclusive bargaining representative for all City employees within a designated bargaining unit. As such, the Union is required
by law to represent all Unit II employees without regard to union membership in negotiating,
administering, and enforcing collective bargaining agreements. The Union’s principal source
of income is membership dues collected from Unit II employees who are Union members.
However, the City also provides financial assistance to the Union to aid the Union in acting as
exclusive bargaining representative for all Unit II employees, including paying the full salary
and benefits of three full-time Union officials and providing the Union with another 3,610
paid hours annually.
On November 30, 2001, during the compulsory “meet and confer” process, the Union and two
other unions proposed a mandatory union contribution, or “fair share,” provision (in which
all workers, including non-union workers, would be required to contribute to the unions for
services performed for the workers’ benefit) in the unions’ original labor proposals submitted to the City.
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Summary & Resources
In pertinent part, the term “meet and confer” means the performance of the mutual obligation
of the public employer through its chief administrative officer or his designee and the designees
of the authorized representative to meet at reasonable times, including meetings in advance of
the budget making process; and to confer in good faith with respect to wages, hours, and other
terms and conditions of employment or any question arising thereunder, and the execution of a
written memorandum of understanding embodying all agreements reached.
The term “fair share” is frequently used in labor-management circles to describe situations in
which a labor organization, acting as an exclusive bargaining representative, seeks to recover
from non-union employees in the bargaining unit a pro rata share of expenses incurred by the
union for negotiation, administration, and enforcement of collective bargaining agreements
benefitting all members of the bargaining unit without regard to union membership.
Although conceding that traditional “agency shop” agreements were prohibited in Arizona,
the unions argued that, unlike “right to work” provisions found in some other states’ constitutions and statutes, nothing in Arizona’s constitution or statutes specifically prohibited
requiring the payment of a pro rata share of a union’s expenses, or similar fees, as a term or
condition of employment.
The Union argues that Arizona’s constitution and “right to work” laws contain less restrictive
language than that of some other “right to work” states because those states not only forbid compulsory union membership as a condition of employment, they also specifically bar
mandatory payment of any fee or contribution to a union as a term or condition of employment. Arizona’s constitution and statutes contain no such specific provision. Thus, the Union
argues, such fees or contributions, if paid as a proportionate share of the actual expenditures incurred by the Union for services rendered for the benefit of the collective bargaining unit (and therefore presumably in an amount less than the equivalent of full Union dues),
should be legal in Arizona.
The United States Constitution does not bar an employer from requiring that non-union
employees, as a condition of employment, pay a “fair share” of a union’s cost of negotiating and administering a collective bargaining agreement for those employees if the fees are
related to the union’s duties as bargaining representative.
Arizona law, however, specifically prohibits compulsory union membership as a condition of
employment as do Arizona’s “right to work” laws. The Arizona Attorney General has twice
issued opinions concluding that an “agency shop” agreement between an employer and a
labor organization, in which all non-union employees would be required to pay to the union
an amount equal to regular union dues, would violate the Arizona constitution.
1. What do you think the court held in this case?
2. Do you agree with the union that because nothing in the Arizona Constitution prohibited requiring the payment, the union could demand it?
3. Do you think that unions should be allowed to require that workers pay union dues
in support of collective bargaining in a unionized workplace?
ANS: As the decisions make clear, both an agency shop arrangement requiring nonunion
employees to pay the equivalent of full union dues and a fair share arrangement requiring the
payment of a pro rata share of union bargaining or representation costs impinge on workers’
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Summary & Resources
right to work. Consequently, the fact that the union’s proposed fair share fee may be less than
the amount of full union dues is a distinction without a difference; it is the compulsion and not
the amount that is important. Article 25 of the Arizona Constitution and Arizona’s right-to-work
statutes prohibit the union’s fair share proposal. As a result, the proposal is not a proper subject
of collective bargaining between the city and the union.
Research Projects
1. Proceed to the website http://www.nlrb.gov. Find the tab labeled “Cases and Decisions.” Click on that tab and go to “Board Decisions.” In the search box type in terms
to find an NLRB decision related to a subject that interested you in this chapter. For
example, you could type in the name “Cesar Chavez” and be directed to cases involving the labor icon. Once you have located an NLRB decision that interests you, read
the decision and write a brief summary of what happened and what decision the
board made. Did you agree with the decision? Why or why not?
2. Make a chart of all the significant labor legislation passed in the 20th century. Next to
the name of each law, place a column with the year it was passed, and then another column with a brief description of what the law covered. If the law amended another law,
make an additional column and explain why and how it amended the previous law.
3. Choose one individual who appears in this chapter and search for him or her online.
Then write a brief biography of that person. After you become familiar with that
person’s background, conduct an imaginary interview with him or her about the era
in which he or she lived, what interested him or her about labor problems of that
era, and how and why he or she helped make the role of labor better. Conduct the
interview as if you were talking to the person and asking questions to which he or
she would respond with plausible answers based on your research.
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Representation Elections
Under the National Labor
Relations Act
4
Robert Churchill/iStock/Thinkstock
Learning Objectives
After completing this chapter, you should be able to:
• Evaluate the steps of union formation under the National Labor Relations Act.
• Analyze employers’ use of unfair labor practices such as coercion, interrogation, and surveillance.
• Assess employers’ use of unfair labor practices such as regulating solicitation, relocating the workplace, and
holding captive audience meetings.
• Examine union activities that may invalidate union representation elections, the process by which the workforce votes for or against union representation in the workplace.
• Summarize the ways in which labor relations consultants may assist employers in the union representation
election process to determine if workers wish to be represented by a union.
71
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Section 4.1
How Unions Are Formed Under the NLRA
Introduction
This chapter and the next offer a detailed explanation of the National Labor Relations Act
(NLRA), the federal law initially enacted in 1935 that first granted workers the right to form
a labor union. We will examine how to form a union and achieve recognition pursuant to the
act. Then we will study how employers sometimes violate the act and examine ways employers can stay within the parameters of the law.
Much of this chapter will refer to elections under the NLRA. Elections refer to the process in
which workers vote at their workplace to determine whether they wish to be represented
by a union; other ways to refer to this process include representation elections or the election process.
4.1 How Unions Are Formed Under the NLRA
This section discusses how a labor union is formed in a private business under the National
Labor Relations Act. We will begin by covering who is qualified to start the unionization process and then examine how the petition is actually filed with the National Labor Relations
Board (NLRB), the administrative agency entrusted with overseeing representation elections
and resolving labor disputes under the act. Defining who is an employee is an important first
step to determining which workers are eligible to vote for union representation.
Defining Employees
The first step in forming a union is to identify which members of the working unit qualify to
participate in the representation election. Union formation is limited to particular employees, which begs the question: Who is an employee? Generally, employees are workers with
two characteristics: (a) they are compensated for their service to the employer, and (b) the
way in which they carry out their duties is under the employer’s control and direction.
Simply declaring a worker an employee does not make it so. Nor is it necessarily obvious that
some people are employees at all. For example, football players at Northwestern University
sought recognition as a bargaining unit, arguing that they were employees of the university
since they received compensation in the form of scholarships and worked as athletes under
the supervision of a coach. Ultimately, the National Labor Relations Board heard their case,
more details of which can be found in the In the News feature box titled “Are Northwestern
Football Players Employees?”
In the News: Are Northwestern Football Players Employees?
Higher education is becoming a battleground for labor relations decisions. Of note is the 2014
case concerning football players at Northwestern University, who sought recognition from the
NLRB to form a union at their school.
(continued)
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How Unions Are Formed Under the NLRA
Section 4.1
In the News: Are Northwestern Football Players Employees?
(continued)
The students argued that they met the two criteria of employees: First, they “worked” for
the university because they received scholarships that paid for their tuition, valued at some
$65,000 each per year; second, they were under the control of their coaches, who told them
what to do, when to do it, and basically structured their days.
The case was first heard by the NLRB’s regional office. There, the administrative law judge
found that those athletes who received scholarships qualified as employees, which then made
them eligible to vote in the representation election (to determine whether a union would represent them). The university appealed to the full NLRB in Washington, D.C. They argued that
football players are not employees and therefore could not legally form a union.
In the meantime, the football players were allowed to vote, but because of the appeal, the ballots were impounded until the case could be heard. At issue is whether the NLRB will uphold
the decision of the regional office in allowing the football players to be classified as employees,
and therefore eligible to form a bargaining unit leading to the election process for union representation (Strauss, 2014).
Discussion Questions
Watch this video (https://www.youtube.com/watch?v=a-i8lOSb1Ck) and answer the following questions.
1. Why were only scholarship players eligible for classification as employees?
2. Why do you think that football players would want to form a union? What issues do you
think they had with the university that necessitated this effort?
3. Why have the players’ votes been impounded until the process is finished?
As a general rule, an employee works for compensation under the discretion of a supervisor. However, the NLRA does not put forth such a definition. Instead, the act lists categories
of workers who are not covered, referred to as exempt employees. These categories include:
1. Government workers in state and federal offices, Federal Reserve banks, and
employees subject to the Railway Labor Act. As we will discuss in Chapter 7, which
covers public unions, government workers such as police and firefighters are government employees, and as such are not under the jurisdiction of the NLRA.
2. Agricultural laborers, such as farmers, including dairy farmers and those who raise
livestock.
3. Domestic servants, including nannies and housekeepers.
4. A person employed by his or her parent or spouse.
5. Independent contractors, or workers usually hired for one job, who are paid once;
have discretion over when, how, and where they do the work; and are not covered by
the employer’s worker’s compensation, retirement, or tax withholding.
6. Supervisors, or workers with “the authority to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees” (29 U.S.C.A.
§ 152[11]). Why are they exempt? One of the purposes of the NLRA is to provide
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Section 4.1
How Unions Are Formed Under the NLRA
workers with the ability to organize with other workers, wielding them greater
power when they negotiate with management. Supervisors, on the other hand,
already have power, and even if they are not the owner of the business, they have
much more control over their work and the conditions of their employment than
their subordinates. In short, because supervisors exercise authority and independent
judgment, the act does not need to protect them in their dealings with management.
In summary, although the NLRA does not define the characteristics of an employee, it clearly
excludes particular types of workers from coverage, most notably supervisors, government
workers, and independent contractors.
Forming a Community of Interest
Once it is established that the workers in question are employees, it
must next be determined which of
those employees can form a bargaining unit. A bargaining unit is
a group of employees who share a
common interest and therefore can
be identified as a discrete group. For
example, suppose a plant consists
of 4,000 workers, 150 of whom are
electricians. The electricians make
up a bargaining unit, because they
are an identifiable group within a
larger group of employees (see Figure 4.1).
Figure 4.1: Illustration of a discrete
bargaining unit
Employees in a discrete bargaining unit have a common
interest, making them an identifiable group within the large
organization of employees.
All of the Workers
in the Factory
The
Electrical
Workers
Generally, to determine which
employees make up a bargaining
unit, the NLRB applies a commuThe bargaining unit may be formed from some of the
nity of interest test that identiworkers in the factory.
fies what commonalities the group
The
shares. For example, electricians
Electrical
at the same plant have the same
Workers
type of job, and therefore form a
discrete work unit. Another conThe electrical workers form a discrete group of workers
figuration is a plant unit, which
with a commonality (or community) of interest.
consists of all workers at the same
geographic location. For instance,
all of the workers at Plant #101 of Atlas Industries, regardless of their position, make up a
plant unit. If Atlas was a large multinational company with multiple plants, and all employees
from all of its plants wished to unionize, an employer unit would be formed.
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Section 4.1
How Unions Are Formed Under the NLRA
In the News: Micro Units May Be the New Bargaining Units
The case Specialty Healthcare and Rehabilitation Center of Mobile is a good example of
whether employees correctly constituted a bargaining unit. In order to form a union in a
workplace, employees must show that their bargaining unit has a commonality of interest. This court decision allowed workers to form much smaller units, dubbed micro units,
rather than bargaining units. What sets micro units apart is that they are composed of a
much smaller defined group, which makes it easier to form a union since there are fewer
workers to organize.
The NLRB has “wide discretion” in determining which workers should be included in a bargaining unit, and courts reviewing the decisions of the NLRB must uphold the board’s decision “unless the employer establishes that it is arbitrary, unreasonable or an abuse of discretion” (Specialty Healthcare and Rehabilitation Center of Mobile, 2011). “By organizing a
small group of workers, a union can gain a foothold within a company’s workforce, as well as
access to company information during contract negotiations that can give it leverage and make
subsequent organizing campaigns easier” (Specialty Healthcare and Rehabilitation Center of
Mobile, 2011).
Discussion Questions
1. Can you think of a reason the NLRB would support allowing smaller groups of workers
to form a bargaining unit?
2. Does recognizing smaller units help workers or the employer? Explain.
3. How small a unit would you advise the NLRB to allow? What is your justification for the
number you came up with?
Signing Authorization Cards
After the bargaining unit is identified, the next step is to determine if there is sufficient
support to form a union within that unit. This can be accomplished informally as employees talk with one another and gauge the level of support. However, when the employees
decide that they want to move forward, each worker must sign an authorization card
stating that they are willing to join the union. A sample authorization card is shown in
Figure 4.2.
If the prospective unit can garner at least 30% of all
bargaining unit workers’ support (as demonstrated by
the number of signed authorization cards), the workers
can then file a petition with the NLRB asking for representation by the union of their choice.
sea81813_04_c04_071-096.indd 75
Watch This
To watch an employee submitting authorization cards to his local NLRB office prior
to the union representation election process, visit https://www.youtube.com
/watch?v=9XDZIKHSgS8
12/9/14 11:22 AM
Section 4.1
How Unions Are Formed Under the NLRA
Figure 4.2: Authorization for representation card
Workers must sign an authorization card if they support the identified bargaining unit and would like
them to become the employees’ representative in collective bargaining and negotiation.
AUTHORIZATION FOR REPRESENTATION
I hereby authorize Teamsters Union Local No. 315, I.B.T., under the National Labor
Relation Act, I, to be my exclusive collective bargaining representative
tative in negotiations
for better wages and working conditions.
Name
Address
City
E
L
P
M
A
S
Date
D
Hired
Print
Telephone
e
State
Zip
Name of Company
Kind of Work
Date
Dept.
Salary
Your Signature
This card is strictly confidential. Please remove tape and seal.
NLRB, Representation Petitions, RC (2014).
Filing the Petition With the NLRB
Following the submission of the authorization cards, a petition must be filed with the regional
office. The employees or the union typically do this, but in some cases employers may also file
a petition to determine how widespread support is within the operation.
What are the chances of actually forming a union once a petition is filed with the NLRB? Figure 4.3 shows how few unions actually emerge after the authorization cards are submitted
and the petition is filed with the NLRB.
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Section 4.1
How Unions Are Formed Under the NLRA
Figure 4.3: Actual unions formed after filing a petition
This figure shows the number of unions formed (or not formed) after a petition was filed for the
years 2004–2013. Even after a petition is filed, some groups decide to withdraw petitions, an event
that happens for different reasons.
5,000
4,000
3,000
2,000
1,000
0
FY04
FY05
FY06
Petitions Filed
Petitions Dismissed
FY07
FY08
Elections Held
Petitions Withdrawn
FY09
FY10
Won by Union
FY11
FY12
FY13
Lost by Union
NLRB, Representation Petitions, RC (2014).
This figure shows in red the number of petitions that were filed each year from 2004 to 2013.
This number is then compared to the blue lines that show how many union representation
elections were actually held compared with the number of petitions filed. Of the petitions
filed that resulted in a union representation election, the green bars show in how many union
representation elections the workers voted for a union to represent them in the workplace,
compared to the beige bars, which represent the number of times workers voted against having a union represent them. Perhaps most interesting is the pink bar that depicts the number
of petitions withdrawn after being filed. There are many reasons for a withdrawal, including
workers’ demands being granted by the employer, an error in the petition, or a loss of support
that prompts the union to try for recognition at a different time.
Table 4.1 shows what happened to petitions filed between 2004 and 2013. In 2004, 141 petitions were filed, and of those, 60 were withdrawn. Only 37 out of the 141 actually resulted
in an election, and of the 141 petitions filed, the union won only 12, or about 8.5%. Based on
these figures, one could deduce that from an employer’s point of view, the odds of union representation actually transpiring from a filing are low.
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Section 4.1
How Unions Are Formed Under the NLRA
Table 4.1: Petitions filed with the NLRB, 2004–2013
Year
Petitions
filed
Elections
Won by
union
Lost by
union
Petitions
dismissed
Petitions
withdrawn
FY2004
141
37
12
25
37
60
FY2006
108
37
11
26
18
54
FY2005
FY2007
FY2008
FY2009
FY2010
FY2011
FY2012
FY2013
102
92
150
75
67
97
31
49
52
17
23
7
25
6
16
7
13
5
60
11
14
6
13
Watch This
To watch Calpine workers file with the
NLRB, visit https://www.youtube.com
/watch?v=OfPZiYKVMno
The NLRB Investigation
5
16
19
9
8
49
8
8
18
21
30
30
27
16
13
3
43
43
101
20
22
25
19
27
In addition to employees and employers filing a petition,
there are certain circumstances in which labor organizations may also file. This can occur when the employer
does not recognize the union or if the employer recognizes the union but seeks to go through the formal petition route so it can obtain the benefits of certification.
The NLRB next determines whether
30% of employees in the bargaining
unit have submitted their cards. To do
this it uses the employers’ payroll list,
also known as the Excelsior list, which
contains the names and addresses of
current employees and therefore all of
the persons eligible to vote in the representation election. The authorization
cards are compared against the Excelsior list, and if 30% support is reached,
the NLRB will accept the petition from
the union. When the petition is filed,
the NLRB notifies all parties involved.
At this point in the process, the regional
office will request any additional information, if needed.
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35
Jae C. Hong/Associated Press
Facilitating fair union elections is one of the NLRB’s
main goals.
12/9/14 11:23 AM
How Unions Are Formed Under the NLRA
Section 4.1
When all parties are informed that a petition has been filed, the regional office will conduct
an investigation to make sure the NLRB has jurisdiction and whether the petition is in order.
Most of the investigative work is done via telephone and e-mail. The agents will work out the
logistics for the election, which includes where the balloting will take place, the language that
will be used on the ballots, and how it will be determined who is eligible to vote (NLRB, n.d.a).
Once the parties arrive at an understanding about how the union representation election process will take place, the regional director is authorized to conduct the election.
If the parties have issues with the election or there are problems with the petition, however,
then there might be matters to resolve before an election can take place. In that event the
entire proceeding stops as the issues are heard (in a hearing) at the regional level and, if
needed, the national level. The most common issue typically regards the description of the
bargaining unit in the petition. For example, if the status of individuals in the bargaining unit
changed due to a personnel action, then the description is inaccurate. This could happen if
an employee designated as a supervisor is reclassified as nonsupervisory or if employees are
transferred out of the bargaining unit (FLRA, n.d.c.).
Hearings before the NLRB are similar to civil trials, except without a jury. The hearing officer
is an employee of the NLRB, and attorneys for both sides present their cases through witnesses, as in a court case. Witnesses are examined and cross-examined so that evidence can
be presented. At the conclusion of a regional hearing, the hearing officer will not rule on the
matter, but instead will write a report to the board, which ultimately makes the decision.
Once these issues are raised and resolved, the election can proceed. There are situations in
which a hearing is not necessary—for example, if the petition is withdrawn for lack of support, inadequacy, lack of jurisdiction, or an inadequate showing of interest. Likewise, a hearing does not take place if the regional director dismisses the petition.
The Voting Process
Fair and non-coercive union elections are at the heart of the NLRB’s mission. If workers can
vote to unionize without fear of reprisals, job loss, or physical harm, then the NLRB has successfully created an atmosphere conducive to a fair outcome. The rules governing union elections have evolved over time and are partly the result of past eras in which corruption and
violence occurred. For this reason, the rules and regulations governing the electoral process
may seem overly complicated, but their purpose is to create a noncoercive atmosphere in
which to hold elections.
The NLRB provides written notice of election-related events; these are posted around the
employer’s place of business explaining the details of the election. These posters tell workers
that a representation election is to be held and that they have the right to vote if they are part
of the bargaining unit. On the day of the election, representatives from the NLRB arrive at the
place of business to supervise the election. They bring the voting booth, ballot box, and preprinted ballots for the election and do the actual count, unless the ballots are sealed.
As in the case with the Northwestern football players, ballots are sometimes sealed or confiscated pending a hearing by the NLRB. If the NLRB rules, for example, that the football players
were not correctly classified as employees, then their votes are moot; on the other hand, if they
really are employees, then they have the right to vote, and their ballots will be lawfully counted.
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How Unions Are Formed Under the NLRA
Section 4.1
NLRB representatives also watch the voting area for any signs of interference by either side
that may be coercive or a violation of the NLRA. They are especially watchful for electioneering, in which representatives of any party engage in “prolonged conversations with voters
waiting to cast their ballots, regardless of the content of the conversation”(Milchem, 1968).
Under the Milchem rule, elections in which electioneering occurs will be overturned. A proportionate number of observers are allowed for each side, depending on the total number of
employees in the business.
The election process is held via secret ballots. Election outcomes are determined by the
majority of the employees in a unit, which means the majority of employees who vote in the
election. NLRB representatives oversee all elections, and they count and report the vote.
The NLRB then issues a certification: either one of representation or one of results. A certification of results means that a majority of employees in the bargaining unit did not vote
in favor of union representation. A certification of representation means that a majority of
employees in the bargaining unit voted in favor of joining the union and authorize the union
to represent them in negotiations with the employer.
Either side can object to the outcome of the election by filing an objection with the regional
NLRB office within 7 days of certification, and the NLRB can then investigate. If the election
is set aside, or invalidated, the NLRB can make arrangements for a new election to take place.
If unionization prevails, it cannot be challenged for at least 1 year, meaning that another
union cannot claim that it now has a majority of workers; otherwise the workplace would be
disrupted by constant elections.
At any point in the process, the employer can challenge (either before the NLRB or in court)
any aspect of the election, from the accuracy of the authorization cards to the determination
of what constitutes the bargaining unit. The NLRB was created and is organized to hold hearings on such issues and make rulings, much like a court. This process will be discussed in
detail in Chapter 6.
Union Representation Without an Election
Sometimes a union is put in place without an actual election. This may happen in a number of ways, such as a consent election in which the employer agrees to the formation of
the union. At the other end of the spectrum are those workplaces that are so polluted by
employer misconduct that a fair election becomes impossible. In those cases the NLRB will
order the employer to recognize the union without an election.
Voluntary Recognition
One way that a union can represent workers without an election is through a process called
voluntary recognition. If the union has the support of 50% or more of employees from the
start (rather than 30%), the employer may avoid going through the petitioning process (as
long as the proof of 50% support is valid) and instead allow a consent election. In that case the
NLRB director conducts an election to ensure that a majority of the employees in the bargaining unit want to be represented by the particular union. For this to happen, the employees must
approach the employer and inform him or her that a majority of workers wish to unionize.
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Section 4.1
How Unions Are Formed Under the NLRA
Upon learning this information, the employer is not obligated to comply with the request
to unionize. If that happens, the workers have no choice but to proceed with an election.
“Although unions may try to pressure the employer to recognize their union without going
through the process of an election, this rarely happens. For example, employees may use a
strike or picketing to apply such pressure. Unions will instead usually use the route of a secret
ballot election. In most cases the union will seek a secret ballot election conducted by the
NLRB” (Associated Builders and Contractors, n.d.). If, however, the employer is willing to recognize the majority, then the employer will request proof that a majority of workers support
the union, which is proven by a count of the authorization cards.
An employer may not wish to entertain voluntary recognition. One reason is because pro-union
workers could pressure other workers into signing authorization cards. Signed cards may indicate that there is great support for union formation, but if workers were to vote anonymously,
the outcome may be very different. Like political elections, elections for whether to unionize
take place in a private booth so no one can see how each person votes; authorization cards, on
the other hand, are not necessarily confidential. A second reason is that voluntary recognition
does not result in certification of the union, whereas an election does. A certified union enjoys a
year of presumptive support and cannot be challenged within that year, whereas a noncertified
union can be decertified sooner than that.
Gissel Bargaining Order
Outside of voluntary recognition, electionless union representation can take place by virtue
of a Gissel bargaining order. This order mandates that the employer enter into a collective
bargaining agreement with the union even though the union has not won an election. If the
employer commits unfair labor practices and the work environment is not conducive to fair
elections, then the NLRB might take this extraordinary measure. The employer must have
committed infractions so serious that it would be impossible to hold a fair election.
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