LABOR LAW AND LEGISLATION

Attempting to strike a balance between assuring fair and humane treatment of workers and micromanaging business affairs, labor legislation is one of the often contentious battlegrounds over which the interests of employees and employers are negotiated. For more than a century a virtual state of war existed between labor and employers. Not until 1935, when meaningful labor law was passed acknowledging the legal rights of independent union organizations, did a climate of relative industrial calm prevail.

Today, labor law and legislation remains a highly contentious and divisive issue, with neither side finding the status quo to their liking. Such partisanship has traditionally not confined itself only to the workplace but also permeates numerous areas of civil society such as academia, the legal profession, the courts, management associations, major media, editorial boards, and religious groups.

When discussing labor law, a critical distinction can be made regarding laws that are binding only on organized labor and those that apply to labor as whole, whether organized or not. For instance certain sections in the Taft-Hartley Act apply specifically to organized labor while sections of the Social Security Act of 1935 are enforced for all employees. In most (but not all) instances, organized labor in the 20th century has endorsed legislation aimed at covering all employees regardless of their organizational status. For example, organized labor has played an instrumental role in proposing, endorsing, and defending legislation meant to improve the general public welfare. These include: social security, Medicare and Medicaid, unemployment compensation, education funding, mine safety and health laws, black lung disability funds, parental leave, universal single-payer health insurance, occupational safety and health laws, minimum wage laws, civil rights legislation, and progressive tax law.

LABOR LAW REVIEW

Prior to the passage of comprehensive federal labor legislation in the 20th century, U.S. labor relations were regulated by state law. Laws governing labor relations were largely handled by state courts on a case-by-case basis. In legal terminology such a process of judicial decision making is referred to as "common law." On the other hand, laws made by state legislative bodies or administrative agencies are referred to as "statutory laws." Throughout most of the 19th century, common law rulings were upheld whenever they came into conflict with statutory decisions. Frequently any action taken on the part of workers to form a union was met with judicial hostility. Acting on an employer's request, judges were quick to issue labor injunctions. At the time, the prevailing judicial doctrine held that workers who formed organizations to better their working conditions were guilty of unlawful conspiracy charges.

Even as some state courts began to recognize the rights of workers to form organizations in the mid19th century, the legal environment in which workers were allowed to operate was highly circumscribed. While some courts recognized the right of workers to strike, they also recognized the employer's right to continue operations using striker replacements (referred to by striking or unionized workers as "scabs"), along with the right of an employee to remain at work if he or she chose not to honor the strike. At the same time courts frequently issued labor injunctions prohibiting unions from peaceful picketing on the grounds that such actions interfered with the rights of the employer to continue operations. Under these terms the "right to strike" was seriously undermined if not rendered ineffective altogether.

The centerpiece of U.S. federal labor law is the National Labor Relations Act of 1935. The act was declared constitutional by the Supreme Court in 1937 and established employee rights and employer unfair labor practices. The National Labor Relations Board (NLRB) was established to administrate the NLRA. Its limited jurisdiction extends only to unfair labor practices and union elections covered in Sections 7-9 of the NLRA. In these matters it adheres to set procedures established by the statute and by regulations established by the board. Besides the NLRB, other government agencies play an important role in the administration of labor law. For instance, the U.S. Department of Labor administers portions of the Labor Management Reporting and Disclosure Act of 1959, the Fair Labor Standards Act of 1938, the Occupational Safety and Health Act of 1970, and the Employee Retirement Income Security Act of 1974 (ERISA). The Equal Employment Opportunity Commission (EEOC) administers Title VII (the statute regulating equal employment opportunity) of the Civil Rights Act, as well as the Equal Pay and Age Discrimination in Employment Acts.

The NLRB's Board has five members appointed by the president and confirmed by Senate vote. The president selects one of the five members to serve as chairperson subject to Senate confirmation. Each member serves five years; member appointments are staggered, and do not expire simultaneously. Along with the board, the statute set up a separate, independent general counsel, also appointed by the president subject to Senate approval for a four-year term. The relationship between the five member board and general counsel imitates that of prosecutor and judge in cases of unfair labor practice only (Section 8), where the board acts as judge and the general counsel as prosecutor. Matters related to election procedures (Section 9) are handled solely by the board and have nothing to do with the general counsel.

In 1947, under conservative political pressure, Congress passed the Taft-Hartley Act. In an attempt to redress the significant labor victories of Wagner, the Taft-Hartley Act, officially known as the Labor-Management Relations Act of 1947, dramatically altered the pro-labor provisions of the NLRA. Controversial aspects of this act are the statutory restrictions contained in Sections 8(b)(4) and 8(b)(7), which comprehensively regulate the right to engage in picketing. The U.S. Constitution permits a limited right to picket as a matter of free speech. But union challenges to overturn the LMRA's picketing statues have been unsuccessful. The courts have maintained that picketing is a form of action, not just speech, thus subject to regulation. The Supreme Court has upheld this argument and ruled that a union's right to picket is determined by the LMRA and not based on constitutional grounds.

Since the 1970s, U.S. union leaders and organizers have routinely voiced concerns about legal obstacles set up to discourage unionization. They are quick to mention that many companies that domestically oppose union organizing drives here have no trouble recognizing unions abroad at their foreign operations. Unfavorable comparisons between U.S. labor laws and those of other industrial democracies do not escape U.S. union advocates.

In mid- to late 1980s, during the Reagan and Bush administrations, pro-labor forces charged that the NLRB had become stacked with administration appointees intent on obstructing union certification campaigns. At first the Reagan administration practiced a policy of benign neglect. Over an extended period of time, cases piled up as vacant NLRB seats went unfilled. This added prolonged delays to a certification process that already worked to an employer's advantage. Moving from benign neglect to calculated activism, Reagan appointed four corporation lawyers and a chair to the board. Sounding very much like a throwback to the days when public officials were virtually indistinguishable from employers, they openly declared that "collective bargaining frequently means the destruction of individual freedom," that "unionized labor relations" figured as one of "the major contributors to the decline and failure of our healthy industries," and characterized strikes as "a concerted effort employing violence, intimidation and political intervention to prevent people who want to work from working." During the board's tenure, complaints against employers that were dismissed increased 300 percent while dismissed complaints filed against unions decreased 40 percent.

Indeed, by 1995, findings released by The Dunlop Commission, convened during the Clinton administration, confirmed this apparent anti-union bias. In the area of labor law, the commission reported the following: illegal firings occurred in one out of four union election campaigns compared to one in every twenty elections in the 1950s; only two-thirds of union-certified elections were recognized by employers agreeing to negotiate contracts, while employers incur no monetary penalty for refusing to engage in good faith bargaining; and, in general, recourse to legal relief through the courts was not an option for a majority of employees, whose low income levels precluded them from paying the high costs and contingency fees required by private lawyers.

PRE-NLRA HISTORY AND DEVELOPMENT

The history and development of U.S. labor law legislation based on independent and legally recognized union organizations divides into two periods—before and after the NLRA. In the pre-NLRA period, roughly 1800-1935, the dominant employer methods used to combat and deny the legal formation of independent unions took two forms: the threat or actual use of private and public armed force and espionage; and employer recourse to a punitive legal system that served as little more than an appendage to employer property interests.

As early as 1806, Pennsylvania courts found cordwainers (shoemakers) guilty of a criminal conspiracy when they combined for the purpose of raising their wages. In 1842, the Massachusetts Supreme Court in Commonwealth vs. Hunt repealed criminal conspiracy laws imposed on unions, but left them with little room to function legally. Following the Civil War, especially during the period of a resurgent labor movement in the 1870s and 1880s, labor conspiracy prosecutions soared. These, along with the upsurge in labor injunctions, proved effective weapons by which employers thwarted the formation of a legally constituted labor movement. By the early 20th century, many state courts were in agreement over the individual laborer's uncontested "right to strike." But then, echoing the 1906 opinion of the Massachusetts Supreme Court, state courts continued to declare many strikes illegal because of the "increase in power which a combination of citizens has over the individual citizen." In short, in most instances a combination of workers was outlawed from doing what one individual worker could do alone.

The use of labor injunctions (a court order prohibiting numerous union actions) rose to prominence during the upsurge in labor activities during the late 1870s and the unrest that was to follow. Just before the Haymarket Square confrontation in 1886, the focal rallying point of one of the first genuine national strikes in U.S. labor history, union strength had reached an all-time high. Leading the way were the Knights of Labor, with more than 700,000 members.

The use of labor injunctions continued well past the 1880s. During the period of 1880-1930, 1,845 labor injunctions were handed down by federal and state courts. And, for approximately the last 10 years of this period, a total of 921 were issued. Among the more notable were the injunctions issued in 1919 during the miners' strike, in 1922 against the national railway shopmen's strike, and in 1922 during the United Mine Workers' campaign to organize West Virginia and Kentucky miners. During the entire period of strife, the U.S. Supreme Court steadfastly upheld injunctions served up by the lower courts.

The Sherman Antitrust Act of 1890 outlawed combinations in restraint of interstate trade and commerce including labor. The Sherman Act was invoked 12 times in the first seven years of its passage. It was first used on a national level in breaking the American Railway Strike of 1894. The courts ruled that the union's national strike in solidarity with the Pullman workers violated the Sherman Act. Injunctions were issued, the U.S. Army intervened, and eventually Eugene Debs and other strike leaders were imprisoned.

Between 1908 and 1914, the Sherman Act was used some 20 times. But on the eve of World War I, a respite arrived in the form of the Clayton Antitrust Act. It declared that "the labor of a human being is not a commodity or article of commerce." Not long after the war's end, however, the courts ruled that the Clayton act did not prevent "private parties" from obtaining antitrust injunctions, only the federal government. As a result, antitrust actions against unions reached a new high in the 1920s. Unions and unionists were charged with some 72 violations. Nearly all the injunctions requested under law were obtained, and more than half of the cases resulted in convictions and lengthy prison terms.

Criminal prosecutions were meted out liberally during the 1920s and early 1930s. Felony charges typically included murder, riot, assault, criminal libel, unlawful assembly, malicious mischief, and sedition. Misdemeanor charges included trespassing, loitering, disorderly conduct, assembling without permit, and disturbing the peace. In many instances, hobos riding trains in search of work were charged with any one of these misdemeanors and then required to work for little or no pay as a punishment. In mining states like Idaho, Colorado, Montana, and West Virginia that were policed by national guard units, a person could be arrested without any charge save for "military necessity" and frequently held in prison for long periods of time.

From the 1900s to early 1930s, a common, legally sanctioned tactic was the discharge of an employee for union activities. It was used repeatedly by employers as a means of discouraging unionization. Some states eventually did make the tactic illegal, but courts routinely invalidated these laws. Early in the 1900s, federal legislation was passed that prohibited interstate carriers from discharging employees for union activities, but it was declared unconstitutional by the U.S. Supreme Court in 1908. Existing laws gave an employer the right to coerce or threaten employees who wanted a union. They also empowered an employer with the right to fire an employee that joined a union, to refuse to bargain with a union if it did exist, and the right to form a company union and force employees to join it. During this period arose the term "yellow dog contract," which was a written, legally enforceable contract that forbade workers from joining unions. Most courts faithfully enforced these contracts. The penalty for violation was automatic dismissal, and, since the contract was legally binding, unions were outlawed from organizing yellow dog contract workers. With some success, unions agitated for legislation against yellow dog contracts. But, the U.S. Supreme Court struck down these laws with passage of the Norris-LaGuardia Act of 1932.

Prior to labor's formation of the Congress of Industrial Organizations (CIO) in 1932, it was not unusual for employers to finance their own private

' armies" or else contract out services intent on crushing new labor organizations. Through mercenaries and spies, employer agencies engaged in subversion, violence, and deliberate lawbreaking. Upon infiltrating a union organization, employer agents identified union activists, gathered information on union organizing drives, fomented factional and ethnic strife among employees, and gained leadership positions with the intent of undermining other elected leaders. By assuming militant postures, these agents incited others to sabotage the union process or provoke violence in order to publicly discredit unions and invite employer retaliatory violence. Employers had no difficulty legally deputizing agents and mercenaries for strikebreaking and union-busting purposes.

Despite the scale and length of this war-like climate, no official casualty figures of those involved in labor disputes were ever kept, despite the fact that this was a time when the recording of statistics for all types of social and scientific phenomena was commonplace. However, one report, limited to reviewing newspaper coverage of strikes from 1877 to 1968, tallied 700 dead and thousands of others suffering serious injuries; the overwhelming majority the dead and injured were workers.

In 1912, the Congressional Commission on Industrial Relations investigated the activities of labor espionage agencies. A second investigation was conducted in the mid-1930s by the LaFollette Civil Liberties Committee of the U.S. Senate. Despite being conducted in two different time periods, both investigations uncovered similar patterns of corporate spying practices and private police activities. Their findings proved influential in framing the legal substance of what was soon to emerge as federal labor law.

In the pre-NLRA period employers also turned to public armed force as a means of intervening against labor unions. At times, because of a sanctioning legal system, the difference between private and public armed forces was indistinguishable. Intervention occurred from local and state police, sheriffs, deputies, state militia (later to be national guard units), and all branches of the U.S. armed forces, including air corps mobilization. The advantages gained by employer use of public force were several: in the eyes of the populace, public force struck a chord of legitimacy; they were empowered to arrest, jail, and punish strikers; and usually, but not always, being publicly financed and equipped for violence, such units were less costly to employers. At other times, employers used state militia that proved less than reliable due to lengthy call-up time and lack of loyalty. Most books dealing with labor history amply document the use of public armed forces to intervene in labor disputes. Even after the passage of NLRA, public armed forces were used in labor disputes although for different reasons. For example, President Richard Nixon used 30,000 federal and national guardsmen to replace postal workers during a 1970 strike and, 11 years later, President Reagan used military personnel to break the air controllers' strike.

Unlike past strikes, when public armed forces were used to break strikes by using their authority and violence, public forces were used in these two cases to maintain services that were deemed essential to the U.S. economy.

American labor began with the legal system clearly stacked against it. One historical study (as noted by Klaus van Bey me, 1980) analyzing comparative labor law legislation throughout Europe and the United States covering the same time period, concluded that, most often, U.S. employers "have made and enforced their own laws, acquired the services of public officials and law enforcement agents, resisted labor's claim to legal legitimacy, and assumed an imperial 'We are the law' posture."

THE NLRA AND ITS LEGISLATIVE
AFTERMATH

Enacted during the later years of the Great Depression, the NLRA was prompted by a rising wave of labor union militancy and a sympathetic Roosevelt Administration. It is often referred to as the Wagner Act after the New York Senator who sponsored the legislation. The NLRA established employee rights to organize, join unions, and participate in collective bargaining or mutual aid activities. It also established unfair labor practices, making employer interference with an employee's right to join a union and participate in concerted union activities unlawful. By law, employers were obliged to bargain in good faith with the union and refrain from discharging or otherwise discriminating against workers due to their involvement in union activities. Prior to the NLRA's passage, workers secured bargaining rights in two ways: through a forced strike or recognition based on the voluntary approval of their employer. In matters related to the enforcement of labor law, Congress created the administrative agency of the NLRB in full recognition of the dismal historical performance of the common law courts. At the time this was unheard of, since enforcement of all earlier law had been solely the domain of the courts.

The Taft-Hartley Act, passed in 1947 over President Truman's veto, cited the restoration of "balance" and "individual rights over collective rights" to rationalize its revision of the NLRA's "unfair labor practices." As a result, the NLRA was officially renamed the Labor Management Relations Act. At the time of Taft-Hartley's passage, the United States was caught up in the hysteria of what came to be known as McCarthyism. The House's Dies Committee, later known as the House Un-American Activities Committee (HUAC), took seriously charges that the prolabor LaFollette Civil Liberties Committee, communists, the CIO, the NLRB, and the Democratic National Committee had all conspired to engage (in the words of steel tycoon Tom Girdler) in a "cold-blooded plot" against business. Among one of its provisions was the requirement that union officers sign noncommunist loyalty oaths as a precondition for using the NLRB. Within the ranks of organized labor, a divisive factionalism resulted over how to best respond to the implementation of Taft-Hartley.

Out of such a political atmosphere did Taft-Hartley emerge. Its provisions prohibited unions from interfering with employee rights, from coercing or discriminating against employees through the unions' activities, and required union bargain in good faith. With respect to the employee rights provision, an employee could not be forced to engage in collective bargaining or any such union activities against their will. Subsequent restrictions on secondary boycotts and free speech and picketing were also an outgrowth of Taft-Hartley.

In 1959, Congress passed the next substantial piece of labor law legislation, the Landrum-Griffin Act. Named after its two Congressional co-sponsors, the legislation is formally called the Labor Management Reporting and Disclosure Act of 1959 and primarily governs internal union affairs. It established a "Labor Bill of Rights" for union members, such as internal union election procedures and reporting and disclosure stipulations for unions, union officers, and employers. It also added Section 8(e) to the LMRA, prohibiting "hot cargo" clauses whereby one employer was forbidden from dealing with other employers who were nonunion or on strike.

Soon to follow was passage of the Civil Rights Act of 1964. Under Title VII of the act, discriminatory wage differentials based on race, color, religion, sex, and national origin were prohibited. The Occupational Health and Safety Act (OSHA) was passed in 1970 to the applause of organized labor. Yet disillusionment with OHSA soon set in; both labor and management were critical of it, but for different reasons. For management, it was costly and overly regulatory. Labor complained that with fewer than 3000 inspectors available to visit five million places of work, each establishment would be inspected once every 75 years. At the same time, the average penalty per violation amounted to $25. In 1981, the Reagan administration cut the number of inspectors to 1,100. Exacerbating this trend in the 1980s, OSHA employed inspection procedures that provided incentives for employers to underreport injuries, and was known more generally as a "hands-off" agency. As a result, on-the-job injuries and lost work days rose substantially. Debate over the effectiveness and necessity of the OSHA, either as it exists now or altogether, is nowhere near settlement.

In 1974 Congress enacted the Employee Retirement Income Security Act (ERISA). With respect to private pension plans, ERISA was passed to curb administrative misuse and the discharge or permanent layoff of employees just prior to being vested. To further ensure that employees would receive retirement pension benefits, ERISA set up the employer-funded Public Benefit Guaranty Corporation government agency. In 1986 it guaranteed pensions up to $1,858 per month should the employer go out of business and/or terminate the plan.

In 1993, the Family and Medical Leave Act of 1993, endorsed by organized labor, finally became law. It permitted workers at firms of 50 or more employees to take up to 12 weeks of unpaid, but job-protected, leave for the birth or adoption of a child; the critical illness of a child, spouse, parent; or worker illness. In addition, health benefits would continue for the duration of the leave (if the worker had been receiving health benefits prior to the leave). By contrast, most workers in other advanced economies of the world have had this benefit (with pay and for longer periods) since at least World War II.

The Occupational Safety and Health Administration Compliance Assistance Authorization Act of 1998 amended the Occupational Safety and Health Act of 1970 (OSHA), calling on the Secretary of Labor to develop programs in cooperation with the states and allowing employers to consult with state officials about compliance with occupational safety and health requirements. The act requires states to provide on-site consultation, which must be independent of enforcement activities, upon employer request; such consultation, moreover, can exempt employers from certain types of inspection

Legislators sympathetic to labor causes have countered with measures seeking to provide workers with a greater deal of freedom and autonomy. The Right to Organize Act of 1999, introduced in the Senate in 1999, would amend the National Labor Relations Act (NLRA) to provide unions significant access to employers' facilities for purposes of the dissemination of information and other activities related to labor organizing. Furthermore, the act takes specific measures to prohibit employers from discharging employees for exercising rights protected under the NLRA. Whether or not this action results in a public law, it does demonstrate that the push and pull that has characterized labor legislation since the 1930s is hardly at an end.