300 words for each question, due Monday

Labor Law

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What is “Law”?

A. Statutes (created by legislators) 1. Examples: Freedom of Information Act, GI Bill of Rights, Civil Rights Act,

National Labor Relations Act B. How courts have interpreted and applied these statutes

1. Statutes are very general and can’t go into all the detail about when and how they apply

2. Courts must decide if a law applies in various concrete situations and how it applies and who it applies to. Or doesn’t apply. i. Situations regularly come up with unique “facts” in which it is not clear how a statues

applies. A court will decide. ii. A body of “case law” comes into being that creates precedents that courts are expected to

follow.

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Employment Law

A. Employment law = law that affects all workers and all management (related to employment relationship).

B. Default situation: “employment at will” 1. Management can hire and/or fire whoever they like for any reason. (However,

see below.) 2. Management can restrict whether employment at will is available to them, or

not i. Written or oral agreements limiting employment at will (say, employee handbook) ii. Behavior that has created reasonable expectation in workers that employment at will

does not hold.

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Employment Law

A. However, federal and state laws limit employment at will for certain workers and certain situations 1. “protected classes of workers” and non-discrimination. If someone is treated

different because they are a member of a protected class, then these laws might provide this person some protection.

B. Additionally, laws are passed on a wide range of issues that limit management’s behavior 1. Minimum wage law 2. Health and safety laws 3. Laws governing private pensions 4. etc

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Labor Law

A. Labor law = law that affects workers, unions, and management when workers act in concert (that is, jointly). Applicable to both unionized workers and non-union workers acting in concert. 1. Statutes such as National Labor Relations Act 2. Case law that interprets, applies, limits, and sometimes undercut these laws. 3. Additionally, policy decisions by the National Labor Relations Board.

B. Employment law also applies to these workers and firms. 1. Example: health and safety laws apply to unionized firms, although a union

contract might specify more stringent health and safety rules and procedures in the firm.

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Labor Law before Great Depression

A. Early: no particular statute explicitly said unions were illegal conspiracies. Instead, courts interpreted existing statutes (unrelated to labor) and existing court cases to say that unions were illegal conspiracies.

B. Later: even when selected laws opened the door to making unions legal, courts continued to interpret old and new statutes/cases to say that most union actions to affect wages and working conditions were illegal. That is, you could form a union, but the union was not permitted to do much. Also, while workers could form unions, management could fire pro-union workers.

C. Powerful anti-union court action: injunctions directing unions and workers to stop certain behavior. Injunctions could be issued in a matter of hours by a judge sympathetic to businesses.

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Labor Law Created during Great Depression

A. Context 1. Huge manufacturing plants (with sometimes 10,000+ employees) driving

less-skilled workers using, for instance, assembly lines. 2. Strikes, violence, falling wages, shift of public attitudes toward workers (and

socialism). 3. Congress was interested in promoting “industrial stability,” but this was just a

neutral way of saying they had to respond to social upheaval or things might get out of control.

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Labor Law Created during Great Depression

B. Norris-LaGuardia Act (1932) 1. Allowed private sector employees “full freedom of association, self-

organization, and designation of representation of (their) own choosing, to negotiate the terms and conditions of employment.

2. Restricted the issuance of injunctions against workers and unions by federal courts.

3. Outlawed “yellow-dog” contracts (in which workers were forced to agree not to join a union as a condition of employment).

4. Yet 1. Did not limit state courts from issuing injunctions 2. Still permitted civil suits against workers and unions based on law such as anti-trust acts 3. Management could still fire pro-union workers 4. While unions could be formed, management did not have to bargain with them

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Labor Law Created during Great Depression

C. National Labor Relations Act (1935), aka, Wagner Act 1. Identified and made illegal various “unfair labor practices.” Among these

were the firing of pro-union workers and workers who were engaged in concerted activity.

2. Required management to “bargain in good faith” with unions 3. Allowed unions to strike and engage in other actions in support of

bargaining (overruling the use of other laws used to ban strikes and related activities)

4. Created National Labor Relations Board, which was part of separate labor court system. Created because no all regular judges were experts in labor law.

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Labor Law Created during Great Depression

D. Important characteristics of NLRA…that led to problems 1. Management could be punished for, say firing pro-union worker only if it

could be shown management fired the worker because she/he was pro-union. The intent of management (for firing a worker) was key i. For instance, management could fire a pro-union worker if they successfully argued they

fired the worker for reasons unrelated to the worker being pro-union. 2. The punishments for management’s unfair labor practice of firing a pro-

union worker was, at most, to require the worker be hired by with backpay. 3. It generally took a long time for the NLRB to finally decide management

engaged in an unfair labor practice. The procedures to lead to this conclusion were very time-consuming.

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Labor Law Created during Great Depression

4. The Supreme Court in 1938 decided that while workers had the right to go on strike, management had the right to replace striking workers.

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Labor Law Created during Great Depression

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5. While the NLRA permitted strikes and protected workers going on strikes, the Supreme Court decided in 1939 that management could fire workers who engaged in a “sitdown” strike and have such strikers removed from the place of business.

Labor Law Created after WWII

A. Context 1. WWII

i. Rules and agreements that restricted workers (union and non-union) from receiving wage increases. Strikes were mostly banned.

ii. Inflation led to an erosion of real wages, and long work weeks to meet war production targets

2. When WWII ended i. Huge wave of strikes as workers tried to get wage increases ii. Some were violent, and they got the attention of the public

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One Example: In March 1945, the 10,500-member Conference of Studio Unions went on strike. But the rival 12,000-member International Alliance of Theatrical Stage Employees did not strike — leading to confrontations between union members.

On Friday, Oct. 5, 1945, the studio unions came out in force to block the Warner Bros. employee entrance. Large numbers of strikers and non-strikers confronted each other outside the employee gate. At least 25 people were injured in the resulting riot. Hollywood remembers Friday, Oct. 5, 1945, as “Bloody Friday.”

Labor Law Created after WWII

3. Republicans took control of both houses of Congress 4. Unions remained relatively popular

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Labor Law Created after WWII

B. Labor Management Relations Act, 1949: aka, Taft-Hartley Act 1. Several union unfair labor practices established. Some of them:

1. Many are to protect workers (who oppose that union goals) from intimidation or punishment by unions.

2. Secondary boycott (in which a union puts pressure on another employer to not do business with the employer of workers in the union)

2. Allowed states to enact right-to-work laws, which allow workers (who are not members of a union) to not pay for the costs of union representation.

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Labor Law Created after WWII

C. Labor Management Reporting and Disclosure Act, 1959: aka, Landrum-Griffin Act 1. Promotes democracy within unions by, for instance, requiring regular, secret

voting for union leaders 2. Created “bill of rights” for union workers, including freedom of speech 3. Requires detailed financial statements be annually submitted to the

Department of Labor

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Decline of unions after WW2

A. As intent for firing pro-union workers was key, management developed procedures that permitted them to fire pro-union workers for ostensibly other reasons (not related to their union attitudes). Management gained experience in how to do this.

B. Management became willing to engage in many unfair labor practices as they determined the benefit > cost of these violations. 1. Small punishment, but union organizing drive stopped 2. Punishment not experienced until long after union defeated

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Decline of unions after WW2

C. Management developed techniques that allowed them to assert they were “bargaining in good faith” but they didn’t engage in any real give-and-take.

D. Management increasing became willing to replace strikers with strike-breakers. 1. Law always permitted management to replaced strikes with either

“temporary” replacements or “permanent” replacements. But, management was often reluctant to hire permanent replacements until Reagan fired PATCO (Professional Air Traffic Controllers Organization) in 1981 during their illegal strike.

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Decline of unions after WW2

E. Early 1980s 1. Federal reserve high interest rate policy

1. Dollar became stronger 2. Imports increased greatly, most notably in auto and steel industries, which were at the

center of union ecosystem in the US 2. Auto workers and Steel workers were forced to grant major concessions to

management. 3. Management in other industries demanded they too be granted concessions. 4. Going forward, unions didn’t look like they were able to provide what they

once provided members. 5. Management increasingly pulled out all the stops to halt any attempts to

form new unions at their workplaces.

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