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Law in History of Labor Unions

Key Points

  • Government has played a large role in determining the course of labor history
  • Labor law has often tilted the playing field in favor of either unions or management; pro-labor Wagner Act of 1935 led to union growth; anti-union Taft-Hartley Act of 1947 led to union decline
  • Unions are currently pushing for card-check voting, which would likely lead to a resurgence of union membership
The government has long served as a referee in the ring where labor and management have fought for power. Court rulings and legislation have shaped how the contest was fought and who had the advantage at any given moment. The major labor laws that Congress has passed have provided a kind of scorecard to show which group was predominant at a particular moment in history. Both sides have continually urged the referee to tip the balance one way or the other, and the rules that the government has laid down have been a critical part of labor history.

Law as an Employer's Weapon

  • In 19th century, government almost always intervened in labor disputes on the side of employers, often using force to crush strikes
  • After 1890, courts used antitrust law to rule unions illegal
  • Lack of legal status made it difficult for unions to achieve gains
In the earliest days of the labor movement, there were few laws that addressed the new phenomenon of national unions. Employers labeled union activity, particularly strikes, as illegal conspiracies. At first, judges agreed. In a case as early as 1806, a Massachusetts court said that it was illegal for employees to band together to raise wages.

The courts based their view on the idea that the purpose of a union was coercion. Individual liberty had been the ideal of the American Revolution, and the courts held tightly to that concept. They were protecting not only the property rights of the business owner, but the freedom of the worker as well. In an 1871 Massachusetts case, the court ruled that every worker had the freedom to enter into a contract with his employer and the right to be free from interference by a union. Freedom of contract, a principle that undermined a union's collective purpose, would remain an impediment to labor organizing well into the twentieth century and remains a point of contention today.

The first major piece of legislation that affected labor unions was the Sherman Antitrust Act of 1890. The law forbade any "restraint of commerce" across state lines, and courts ruled that union strikes and boycotts were covered by the law. This was ironic since the Sherman Act had been passed by liberal reformers hoping to curb the abuses of business cartels and monopolies, not to crack down on unions.

In 1894, members of the American Railway Union, led by Eugene V. Debs, walked off their jobs at the Pullman Palace Car Company. Owner George Pullman manufactured his railroad sleeping cars in a company town near Chicago. Because of the depression that had hit a year earlier, Pullman cut wages 25-40%. The union called for a nationwide strike and boycott.

Sympathetic workers across the country refused to handle Pullman cars, slowing the entire national rail system to a crawl. Alarmed businessmen obtained an injunction based on the Sherman Act. Federal troops were sent out to enforce the injunction, and violent confrontations ensued. But the tactic worked. Debs and 700 Pullman workers were arrested and the strike was crushed.

Judges began to issue injunctions that threatened serious penalties if union members did not immediately stop a strike, boycott, or some other action. Injunctions became the bane of unions' existence, kneecapping unions' ability to organize successfully in the late nineteenth century.

Labor Gets a Boost

  • New Deal changes to labor law favored unions
  • Wagner Act of 1935 gave unions legal protections, led to rapid growth in union membership
As part of his New Deal New Deal, President Franklin Roosevelt introduced a series of laws that gave unions a leg up in their perennial struggle with management. The most important of these was the 1935 National Labor Relations Act, known as the Wagner Act. Its sponsor, New York Senator Robert F. Wagner, a strong supporter of unions, explained his views by asserting, "Industrial tyranny is incompatible with a republican form of government."27

The Wagner Act gave unions the right to organize workers without being harassed or intimidated by employers. It established a National Labor Relations Board, which had the responsibility to assure that elections to determine if a union would represent workers were fair, and to oversee the collective bargaining that took place between union representatives and management once a company was unionized.

The Wagner Act and other New Deal legislation channeled conflict in the workplace into the collective bargaining process. Harvard labor economist Sumner Slichter wrote that this legislation calmed the troubled waters of labor relations by "introducing civil rights into industry, that is, requiring management be conducted by rule rather than by arbitrary decision."28

Specifically, the Wagner Act allowed workers to strike, picket and boycott businesses with whom they were having disputes. It made illegal so-called company unions, which were employee organizations sponsored by employers. It also outlawed blacklisting, intimidation, and industrial spies. Under the NLRB, management had a legal obligation to negotiate a contract with a duly chosen union.

The effect of the Wagner Act was astounding. Unions all over the country began to organize. Millions of new members poured in, bringing more dues and more political power. By giving workers new rights, the act defused what might have been an escalation of class conflict during the Depression, which in turn could have rocked the entire society.

The "Slave Labor Act"

  • Huge strike wave in 1946 turned public opinion against unions
  • Pro-business Taft-Hartley Act passed Congress in 1947, rolling back many of the advantages unions gained in 1930s
Basking in its New Deal victories, organized labor grew complacent. In 1947, Republican lawmakers, reflecting the public perception that unions had grown too powerful, passed the Taft-Hartley Act over the veto of President Truman.

The assertion by labor unions that the law was a "slave labor act" was obviously overblown, but the legislation did hit unions right where it hurt. While the New Deal Wagner Act had protected the rights of unions, Taft-Hartley gave new rights to businesses.

As an omnibus bill, the Taft-Harley Act contained a number of laws and had numerous benefits for employers. It banned the closed shop, in which only union members could be hired. It allowed states to pass "right-to-work" laws that instituted open shops, where workers did not have to join a union if they chose not to.

Taft-Hartley allowed the federal government to call off a strike, or an employer's lockout for that matter, during an eighty-day "cooling-off period" if the national interest was endangered. That provision has been invoked 36 times in the intervening years. The law banned sympathy strikes and secondary boycotts, actions by employees against companies not directly involved in a labor dispute.

Anther key provision required union leaders to sign an affidavit swearing they were not communists. Some union leaders, especially those in the CIO, were or had been communists. Unions whose leaders refused to sign lost most of their collective bargaining rights. The CIO was stripped of many leaders and members. This anticommunist provision dampened much of the radicalism of the labor movement, leaving leaders wary about speaking out on social issues.

The effect of Taft-Hartley was to tilt the playing field back toward employers, but not as far as workers feared or managers hoped. Taft-Hartley did play a role in the long decline of unions. Almost all the southern states passed right-to-work laws, hamstringing union organizing and providing a haven for businesses fleeing unionization. When Taft-Hartley was passed, labor leaders vowed to force its repeal. So far, all their attempts to overturn the law have failed.

The Importance of the Law

  • Much of 20th century labor history can be explained simply by the Wagner Act and Taft-Hartley Act; labor law largely determined outcomes in labor disputes
  • Current debate over Employee Free Choice Act will determine the course of labor history in the future
Because the power struggle between employers and employees has been so hard fought, any advantage is bound to help one side or the other. Senator Robert Taft said his purpose in crafting his landmark legislation "was to 'equalize' the bargaining power of the employer and union by increasing it for the one and decreasing it for the other."29 But it's significant that he was after what he viewed as a level playing field, not a return to the anti-union legal climate of the nineteenth century. The Wagner Act and the Taft-Hartley Act stand as the two pillars which define labor movement history in recent times.

Today unions are pushing for a new labor law. They feel that employers have interfered with their right to organize workers by firing union sympathizers, threatening to close unionized plants, or refusing to negotiate in good faith after workers unionize. The unions are today pushing the Employee Free Choice Act (EFCA), which would make it much easier for unions to enlist workers by simplifying the process by which workers can form a union. The law would also provide for stiffer penalties for employer violations of current labor laws.

Employer groups argue that this so-called "card check" system violates workers' rights by eliminating the secret ballot election supervised by the National Labor Relations Board. The system proposed by the EFCA, business interests argue, would allow workers to be pressured into siding with the union and would "take away a worker's right to a federally supervised private ballot."30

Free choice? Workers' rights? Sound familiar? The same terms have been used for more than a century. The fact is, this is simply the next round in an old power struggle, with both sides rolling out the rhetorical flourishes as they try to tilt the contest in their direction. But the contest is sure to have profound effects; if EFCA passes, it seems quite likely that the United States will see its first surge in unionization in more than half a century. If it doesn't pass, it seems almost certain that unions will continue to occupy only a marginal place in twenty-first century America. If you're for unions or if you're against them, it might be a good idea for you to put in a call to your congressman or congresswoman today; the future of the American labor movement may well depend on their vote.

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