I. History Overview
a. Until the 19th Century, work wasn’t based on freely bargained employment relationships. Rather, English law was based on the domestic relationships of master & servant growing out of the servant’s relationship in the master’s household.
b. In the Federal Period, labor market was mixture of free & paid labor; status based work.
c. The Rise of the Factory System after the Civil War
i. Free Wage Labor
a. Contractually based relationships
b. more specialized division of labor
a. erosion of the need for craft skills – appropriated by machines
b. growth in the scale of manufacturing enterprises – loss of the intimacy of the antebellum shop
c. change in the composition of the working force
a. supervisory positions were white males, but workers were children, immigrants
d. employers had unilateral power to make and enforce rules – carte blanche.
d. Rise of the Labor Movement after the Civil War
i. Less powerful unions formed and died with economic rises & depression until AFL formed under leadership of Samuel Gompers in 1886.
a. AFL Philosophy
a. “pure wage consciousness”
b. relied on economic power
c. not so radical, accepted idea that labor was commodity to be sold on a market, but that best way for the market to work was for the collective to organize.
d. Business union – want to maximize the return from the perspective of the workers.
e. CIO rival develops in the 30s
b. Also, IWW (Wobblies)
a. Radical Movement
i. Wanted to completely change capitalist system, have system of worker control
c. Knights of Labor fighting for 60 hour work week
a. At high mark 4 million belonged
d. Also, the company union
e. Judicial Intervention
i. Hostility to union activities
a. unions regarded as criminal conspiracies – illegal deprivation of employer’s property or interference with contracts.
a. Narrowed use when courts required employer show union was guilty of either an illegal purpose or the use of an illegal means (violence).
b. Courts accepted that employees would be permitted to strike for their wages. Needed another justification.
c. Vegelahn v. Gunter
a. Famous common law case – Mass. (1896)
b. TRO (injunction pendente lite) issued restraining union members from interfering with P’s business by patrolling sidewalk or street in front or around business premises to prevent scabs from entering.
c. Ds conspired to prevent Ps from getting workmen, from carrying on business until adopted schedule of business agreeable to the union.
i. Allen: patrol was unlawful interference with the rights of employer and employed;
– Employer has right to engage all persons who are willing to work for him at such prices as may be mutually agreed upon.
– Employed or seeking employment have corresponding right to enter into or remain in the employment of any person willing to employ them.
– Intimidation not limited to threats of violence or physical injury to persons or property; includes persuasion.
ii. Holmes’s Dissent: Picket line isn’t automatically threatening; workers publicizing their dispute with management. Shouldn’t be unlawful to do in a group what’s lawful for one man to do alone.
e. Analysis: look at the OBJECTIVE then MEANS.
d. Yellow Dog Contracts: employee agrees not to join a union.
a. Courts would issue injunctions to prevent breaking these contracts.
II. Anti-Trust Legislation
III. Sherman Act (1890)
ii. 1890: Congress declared unlawful “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states or with foreign nations.”
a. violations punishable as federal crimes, AG authorized to instituted injunction proceedings, and persons injured in the course of business given right to sue civilly for treble damages.
b. objective was elimination of agreements between manufacturers or suppliers to fix prices or regulate the supply of goods, but applied more often to labor unions than to business corporations.
c. Held could apply to labor unions in Loewe v. Lawlor.
a. Loewe v. Lawlor (Danbury Hatters)
i. Organizers unhappy b/c hatters weren’t union shop; other unionized hatters were saying would un-unionize if didn’t organize.
ii. Boycott organized with retailers.
iii. Loewe came up with idea to sue the workers with homes under Sherman act for treble damages.
iv. Boycott said to interfere with P’s production of hats & distribution in interstate commerce.
v. Ds combined to prevent Ps from manufacturing articles intended for transportation in interstate commerce; Ps prevail.
f. Clayton Act (1914)
i. Congress: shouldn’t be using Sherman Act to attack labor unions, but some loose language in there to allow hostile courts to weasel out of
erized views of economic and social theory…and on statutory misconstruction.”
IV. The NLRA or WAGNER ACT (1935)
h. Enacted in the heart of the Depression; culmination of a long period of development including enactment in 1926 of the Railway Labor Act.
i. Later amendments:
a. Taft-Hartley Act (1947
b. Landrum-Griffin (1959)
i. Structurally a New Deal Solution
i. Administrative Agency
ii. 5 member board.
j. Ringing declaration of policy in Section 1.
i. The denial by employers of the right of employees to organize and the refusal by employers to accept the procedures of collective bargaining….the inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers…tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.
k. Sec. 7: Beating heart of NLRA: Right to organize.
i. Employees have the right to self-organize, to form, join, or assist labor organizations, ot bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining (strikes, boycotts – even applies to non-union shops) or other mutual aid or protection.
l. Sec. 8: Employer unfair labor practices.
i. 8(a)(1): ER can’t interfere, restrain, or coerce EEs with their exercise of §7 rights.
ii. 8(a)(2): ER can’t dominate or interfere with formation or administration of unions (outlawing company unions).
iii. 8(a)(3): ER can’t discriminate against union members or discourage membership in the unions.
a. After Taft-Hartley, can’t encourage, either. EE has the right to not be in the union.
iv. 8(a)(4): ER can’t discharge or discriminate against EE b/c he filed charges or gave testimony under the act.
v. 8(a)(5): ER can’t refuse to bargain collectively with EE reps.