* (c) 2003 Julius Getman, Earl E. Sheffield Regents Chair in Law, University of Texas at Austin School of Law. This Essay is based on a talk the author gave at The Future of Organized Labor, an interdisciplinary conference held in Washington, D.C. April 22–23, 2003. The Ray Marshall Center for the Study of Human Resources hosted the conference. Portions of this Essay appear in Julius G. Getman, Bertrand B. Pogrebin, & David L. Gregory, Labor Management Relations and the Law (2d ed. 1999).
1 Hereinafter also referred to as the “Act.”
2 See generally Irving Bernstein, The New Deal Collective Bargaining Policy (1950); James A. Gross, The Making of the National Labor Relations Board: A Study in Economics, Politics, and the Law (1974).
3 The current NLRA, codified as amended at 29 U.S.C. �� 151–169 (2000), is a combination of the major provisions of the Wagner Act, Pub. L. No. 198, 49 Stat. 449 (1935) (designated the National Labor Relations Act); the 1947 Taft-Hartley Amendments, Pub. L. No. 101, 61 Stat. 136 (designated the Labor Management Relations Act); and the 1959 Landrum-Griffin Amendments, Pub. L. No. 86-257, 73 Stat. 519 (designated the Labor-Management Reporting and Disclosure Act of 1959).
4 29 U.S.C. � 160(j) (2000).
5 Section 7 of the NLRA, its original language largely intact, announces a broad right “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Id. � 157. Section 13, another of the NLRA’s original provisions, specifies that “[n]othing in this subchapter, except as specifically provided . . . shall be construed so as either to interfere with or impede or diminish in any way the right to strike.” Id. � 163.
This language is in sharp contrast with the language of � 8(b)(4), which makes it an unfair labor practice:
to engage in, or to induce . . . any individual . . . to engage in, a strike or a refusal . . . where in either case an object thereof is . . . forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer.
Id. � 158(b)(4). The literal provisions of this language are violated in almost every strike in which the strikers seek to prevent pickups or deliveries. The NLRA thus contains language recognizing the common goals of organized labor and language that, if read literally, would outlaw almost all strikes and most inducements to strike. Similar tension exists between the policy favoring free collective bargaining developed by the Wagner and Taft-Hartley Acts and � 8(e), which prohibits agreements by which unions seek to enlist the support of an employer in favor of their organizing efforts elsewhere. See id. � 158(e). The NLRA’s inconsistencies invite judicial reconciliation.
6 304 U.S. 333, 345–46 (1938).
7 See Cynthia L. Estlund, Labor, Property, and Sovereignty After Lechmere, 46 Stan L. Rev. 305, 311–25 (1994) (discussing Supreme Court decisions regarding union actions and employer property rights).
8 See Lechmere, 502 U.S. 527, 538, 539 (1992); United Steelworkers, 357 U.S. 357, 363 (1958); Babcock, 351 U.S. 105, 112 (1956).
9 See, e.g., Mueller Brass Co. v. NLRB, 544 F.2d 815, 817, 821 (5th Cir. 1977); NLRB v. Lassing, 284 F.2d 781, 783 (6th Cir. 1960); NLRB v. Adkins Transfer Co., 226 F.2d 324, 328–29 (6th Cir. 1955).
10 See Coronet Foods, Inc. v. NLRB, 158 F.3d 782, 795 (4th Cir. 1998); Local 57, Int’l Ladies’ Garment Workers’ Union v. NLRB, 374 F.2d 295, 299–300 (D.C. Cir. 1967).
11 Archibald Cox et al., Labor Law: Cases & Materials 256–57 (13th ed. 2001).
12 See Consol. Edison Co. v. NLRB, 305 U.S. 197, 235–36 (1938). See generally J. Pope, Post-New Deal Economic Due Process and the Decline of the American Labor Movement (Oct. 15, 2003) (unpublished manuscript, on file with author).
13 See 33 NLRB Ann. Rep. 60 (1969).
14 See 359 U.S. 236, 246 (1959).
15 Norris-LaGuardia Act � 6, 47 Stat. 71 (1932) (codified at 29 U.S.C. � 106 (2000)).
16 See Linn, 383 U.S. 53, 55 (1966).
17 See Farmer, 430 U.S. 290, 302–03 (1977).
18 Julius G. Getman & F. Ray Marshall, The Continuing Assault on the Right to Strike, 79 Tex. L. Rev. 703, 725 (2001).
19 These cases dealt with the enforcement of the promise to arbitrate and of the arbitrator’s decision. See United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 599 (1960); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 585 (1960); United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 569 (1960).
20 29 U.S.C. � 160(a).
21 192 N.L.R.B. 837, 841–42 (1971). See generally Julius G. Getman, Labor Arbitration and Dispute Resolution, 88 Yale L.J. 916 (1979); Cornelius J. Peck, A Proposal to End NLRB Deferral to the Arbitration Process, 60 Wash. L. Rev. 355, 359 (1985).
22 See Alexander v. Gardner-Denver Co., 415 U.S. 36, 56–58 (1974) (discussing reasons arbitration is inappropriate for resolving issues regarding rights arising under Title VII).
23 268 N.L.R.B. 573, 576, 577 (1984).
24 Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 223 (1964) (Stewart, J., concurring); see First Nat’l Maint. Corp. v. NLRB, 452 U.S. 666, 676–80 (1981).
25 See 452 U.S. at 686. See generally Julius G. Getman, The Courts and Collective Bargaining, 59 Chi.-Kent L. Rev. 969 (1983) (discussing First National).
26 Racketeer Influenced and Corrupt Organizations Act, 84 Stat. 941 (1970) (codified as amended at 18 U.S.C. �� 1961–1968 (2000)).
27 18 U.S.C. �� 1951–1960.
28 See generally Getman & Marshall, supra note 18.
29 See Charles J. Morris, A Blueprint for Reform of the National Labor Relations Act, 8 Admin. L.J. Am. U. 517, 553–55 (1994); Clyde W. Summers, Exclusive Representation: A Comparative Inquiry into a “Unique” American Principle, 20 Comp. Lab. L. & Pol’y J. 47, 57 (1998).
30 Summers, supra note 29, at 57.
31 “Thus both the Board and the courts automatically find a violation when an employer treats union members differently from non-union members.” Julius G. Getman, Section 8 (a)(3) of the NLRA and the Effort to Insulate Free Employee Choice, 32 U. Chi. L. Rev. 735, 736 n.6 (1965).
32 197 F.2d 719, 722, 755 (2d Cir. 1952), aff’d sub nom. Radio Officers’ Union of the Commercial Tel. Union v. NLRB, 347 U.S. 17 (1954).
33 Radio Officers’ Union, 347 U.S. at 46.
34 See Int’l Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 739 (1961) (holding that granting a minority union the right to bargain for the entire unit violated � 8(a)(2) without regard to employer motivation). “There could be no clearer abridgment of � 7 of the Act.” Id. at 737.
35 See generally George Schatzki, Some Observations and Suggestions Concerning a Misnomer—“Protected” Concerted Activities, 47 Tex. L. Rev. 378, 378 (1969).
36 See generally id.
37 Pope, supra note 12.
38 Norris-Laguardia Act, 47 Stat. 70 (1932) (codified as amended at 29 U.S.C. �� 101–115 (2000)).
39 The Workplace Fairness Act, the Labor Reform Act of 1977, and the Dunlop Commission report all contain recommendations that, if enacted, would make the law more protective of workers’ rights and the interests of labor unions. See H.R. 5, 102d Cong. (1991); H.R. 8410, 95th Cong. (1977); Commission on the Future of Worker-Management Relations: Report and Recommendations (1994) [hereinafter Dunlop Commission]. It is difficult to imagine, however, their wholesale adoption any time in the immediate future. Even if the law was amended, it is difficult to imagine a successful strategy for restraining the anti-union biases of the courts and conservative Board.
40 See NLRB v. Mackay Radio & Tele. Co., 304 U.S. 333, 345–46 (1938) (recognizing an employer’s right to hire permanent replacements for striking employees).
41 See generally Julius Getman, The Betrayal of Local 14 (1998) (recounting a seventeen-month strike and how it permanently changed participants’ lives).
42 See Julius G. Getman et al., Union Representative Elections: Law and Reality 118 (1976).
43 See 29 U.S.C. � 158(b)(4).
44 Even in those very, very rare cases in which the Board orders and the courts accept, the chances for crafting a bargaining relationship are remote.
45 See 458 U.S. 886 (1982).
46 Id. at 912–13. For this conclusion the Court relied on its opinion in Thornhill v. Alabama, 310 U.S. 88 (1940), the case that first held labor picketing to be constitutionally protected. See Claiborne, 458 U.S. at 909, 911–12. The Thornhill case has since been distinguished to the point of irrelevance in the labor context. The Court’s reviving of it might be a signal that the Court is willing to rethink the issue of labor picketing and the First Amendment.
47 Claiborne, 458 U.S. at 912 (citations omitted) (quoting NLRB v. Retail Store Employees Union, Local 1001, 447 U.S. 607, 617–18 (1980) (Blackmun, J., concurring in part)).
48 See 485 U.S. 568, 576 (1988).
49 Id.
50 Claiborne, 458 U.S. at 912 (quoting Retail Store Employees, 447 U.S. at 617–18 (Blackmun, J., concurring in part)) (quotations omitted).
51 29 U.S.C. � 158(a)(2) (2000).
52 Id. at � 152(5).
53 360 U.S. 203, 204 (1959).
54 See id. at 207.
55 Id. at 211.
56 This development is traced in Thomas C. Kohler, Models of Worker Participation: The Uncertain Significance of Section 8(a)(2), 27 B.C. L. Rev. 499 (1986).
57 NLRB v. Walton Mfg. Co., 289 F.2d 177, 182 (5th Cir. 1961) (Wisdom, J., dissenting in part).
58 691 F.2d 288, 293 (6th Cir. 1982).
59 The Commission on the Future of Worker-Management Relations was announced by Secretary of Labor Robert B. Reich and Secretary of Commerce Ronald H. Brown on March 24, 1993 to study and report on ways to improve labor management cooperation. It was chaired by John T. Dunlop, former Secretary of Labor (1975–1976), hence the short name “the Dunlop Commission.” See Dunlop Commission, supra note 39, at x.
60 Id. at 8.
61 Id.
62 The dissenting opinion of Douglas A. Fraser, dated January 3, 1995, is included as an insert in Dunlop Commission, supra note 39 (attributing quote to Senator Wagner in 1935) (quoting Legislative History of the National Labor Relations Act 1416–17).
63 See, e.g., Paul C. Weiler, Governing the Workplace: The Future of Labor and Employment law 186–224 (1990).
64 309 N.L.R.B. 990 (1992).
65 Id. at 991.
66 See id. at 990.
67 Id. at 1004 (Oviatt, concurring).
68 See id. at 1013–14 (Raudabaugh, concurring).
69 334 N.L.R.B. 699 (2001).
70 For an interesting discussion of the case’s meaning, see generally H. Victoria Hedian, The Implications of Crown Cork & Seal Co. for Employee Involvement Committees as “Labor Organizations” Under the Wagner Act: What Constitutes “Dealing With” Pursuant to Section 2(5) of the Act since Electromation, Inc.?, 18 Lab. Law. 235 (2002); Gerald L. Pauling II & M. Andrew McGuire, The Implications of Crown Cork & Seal Co. for Employee Involvement Committees as Labor Organizations Under the NLRA: What Constitutes “Dealing With” Pursuant to Section 2(5) of the Act Since Electromation, Inc.?, 18 Lab. Law. 215 (2002).
71 See Crown Cork, 334 N.L.R.B. at 699.
72 See id. at 701.