LABOR LAW OUTLINE
Prof. Clancy—Spring 2001
I. Labor as a Commodity
A. The Common Law: historically, it was unlawful for workers to combine together for the purpose of raising wages even though employers together could agree to raise prices under to aegis of competition. The ends/means test was used to resolve labor disputes. Collective action was deemed a criminal conspiracy to raise wages. Even if picketing was peaceful, it would be illegal if the ultimate ends or objective of the picketing was to raise wages. If collective bargaining was the means to raising wages, this was also illegal. Judges could look to either the ends or the means of employee action to determine if it was illegal.
1. Coppage v. Kansas (USSC 1915), p. 47: Court upheld employers’ right to create and enforce yellow dog contracts which prohibited employees from joining labor unions or forego employment if they did (not a due process violation). The purpose of such contracts was to scare employees from joining unions and to give employers a legal device to thwart union power it otherwise would not be able to control. J. Pitney held that the government should not interfere with business decisions (laissez-faire) and that not allowing yellow dogs would deprive employers right to contract. Note: the Norris-LaGuardia Act of 1932 finally outlawed yellow dog contracts and the Court did not overrule this federal statute.
Note: the dicta of this case said that unions have an inherent right to deny membership to whomever they want. This would become a problem because in 1947, the Taft-Hartley Act allowed for union shops which required that all employees hired must become a member of the union which represents employees of the particular employer. This meant unions could deny membership to minorities and this would subsequently prevent them from obtaining work with a particular employer.
B. Early Statutes (Sherman, Clayton, Norris-LaGuardia):
1. Sherman Anti-Trust Act:
a. Loewe v. Lawlor (USSC 1908), p. 52: employer would not allow employees to organize under a union. Employees picketed peacefully and called for a widespread boycott of employer’s products in all cities where sold. Employer had no state law remedy to enjoin this peaceful activity. So, he sought relief under the Sherman Anti-Trust Act. Holding: Court held that Sherman applies because it prohibits every contract or combination designed to restrain trade. Labor unions are a form of combination, so when they organize a boycott, that is an unlawful restraint of trade. Since Sherman was a federal law, it trumped all state laws which favored unions. Note: NLRA §8(b)(4) or §8(b)(7) would now protect the union’s activity, but it was not yet enacted at the time of this case.
b. Coronado Coal v. United Mine Workers (USSC 1925), p. 71: a riot ensued when coal miners tried to prevent replacement workers from taking over when the company changed hands. Originally, the Court held this was a local strike which had nothing to do with the Sherman Act. The riots were not intentionally directed towards a restraint of interstate commerce. Holding: Court eventually held that the strike was an attempt to prevent non-union coal from being sold so even though it was a local strike, it violated Sherman. Note: today, these activities would be controlled by NLRA §8(b)(4) or §8(b)(7).
2. Clayton Act of 1914: Magna Charta of organized labor. §6 held that labor cannot be considered a commodity nor an article of commerce. As such, anti-trust laws cannot apply to labor unions. Negates Loewe. §20 held that federal courts cannot enjoin union activities unless there is actual harm towards the employer. Employees have the right to engage in concerted activities such as strikes, boycotts, and picketing.
a. Duplex Printing Press v. Deering (USSC 1921), p. 58: union tried to organize printing press employees. Employees strike peacefully and call for a secondary boycott by all newspapers in NYC of Duplex presses. Issue: does Clayton apply to and allow secondary boycotts or does Loewe still apply? Holding: Court held that Clayton applies only to immediate employer/employee relationships, not secondary boycotts. Here, the boycott in NYC did not involve an immediate relationship. J. Pitney reads Clayton very narrowly to allow only primary boycotts and basically mutilates it.
Note: Norris-LaGuardia was drafted in response to this case. It was clear and unambiguous in allowing secondary Duplex-type boycotts as well as primary Loewe-type boycotts. Takes away the equitable jurisdiction of federal courts to issue injunctions against labor disputes. Applies only to labor disputes. This basically overrides Clayton in the labor dispute area (but it still has anti-trust implications).
b. Great Northern Railway v. Brosseau (D. N.D. 1923), p. 75: Judge here criticizes other federal judges for ignoring Clayton and abusing their injunctive powers against strikes. Clayton expressly allows local strikes (between employeer and employee relationship) and other courts had been unwilling to enforce that provision. Courts were still issuing very broad injunctions. the Clayton Act only allows a court to enact injunctive relief to prevent strikers from performing acts of violence that will prevent an employer from carrying on his business This is the only instance of a federal judge avidly criticizing other judges on this issue.
3. The Norris-LaGuardia Act of 1932, p. 85: enacted in response to judges ignoring Clayton and issuing injunctions against union activities. Congress wanted legislation to take away federal power to issue injunctive relief for labor disputes. §13(a)-(c) defines labor dispute broadly and specifically includes Duplex-type secondary boycotts. §4(a)-(i) is a list of specific union activities protected by the act. §7(a)-(e) is a list of activities for which injunctions can be issued. However, the activity must fall within within these provisions and outside of §4 in order for the injunction to be proper. So, if the labor union activity does not fall within §4, it must still fall within
a. NLRB v. Jones & Laughlin Steel (USSC 1937), p. 110: Employer was ordered to cease and desist from an unfair labor practice by NLRB. Employer refused because it felt that it was entitled to a jury trial under the Seventh Amendment. NLRB went to Circuit Court for enforcement. Circuit court refused and held that NLRB was acting beyond its powers. Court: no jury trial need have been afforded. This was not a suit at common law, it arose under the Wagner Act, a federal statute. The Wagner Act has not been deemed unconstitutional, so it cannot be argued against on Constitutional grounds. Court will give deference to the NLRB’s interpretation on the Wagner Act as long as it is reasonable.
Note: NLRB has the power to prevent and remedy employer practices described in §8(a)(1)-(5). However, the Wagner Act does not include any instances of unfair union labor practices.
Note: District courts have no role in the Wagner Act. Review of NLRB decisions is made by Circuit courts only (can go to any circuit court you choose when appealing).
2. Preemption:
a. Allen-Bradley v. Wisconsin Employment Relations Board (USSC 1942), p. 122: employer claimed union was engaging in unfair labor practices (disagreement over terms of collective bargaining agreement). Wagner did not cover union activity and Hutcheson precluded the use of Sherman. Employer went to state labor law for remedy. Wisconsin Board ruled it was not preempted by NLRA or NLRB and ruled against the union whose acts it deemed unfair. Holding: Court held that the union activity is not protected by Wagner Act. Wagner Act does not apply to union activity and thus does not wholly foreclose on the states’ ability to regulate such acts undertaken by the union. The Wisconsin Board’s decision had nothing to do with labor, it simply ordered a cease and desist of activity clogging the streets (police power regulation). Wagner Act doesn’t apply to actions outside the realm of labor.
Note: this decision holds that Wagner Act doesn’t address preemption. Courts must address it on an ad hoc basis. Courts must look at what the state is trying to regulate, the manner by which it is regulating, and the affect this has on employees’ rights protected by the Wagner Act. Since no labor activity was involved in this case, this holding left open the question of preemption when states’ orders affect employees
