Happy Birthday, Labor Law!

Legal Corner

Volume CX, No. 7/8July, 2010

Harvey Mars, Esq.

It’s the diamond anniversary of the National Labor Relations Act. Otherwise known as the Wagner Act, this bedrock legislation provides the foundation for modern labor management relations.

It’s now 75 years after its enactment, and the NLRA is a law labor practitioners often take for granted.

Lest we forget the vital importance of this law, now is the time to reflect on the protections afforded by it, the constitutional challenges its enactment faced and its future vitality.

Section 7 of the NLRA established the legal entitlement of employees to engage in organizing and concerted activity and protected that right by making it an unfair labor practice for employers to inhibit their right to do so.

The NLRA created the National Labor Relations Board and charged it with the duty to investigate and determine the legitimacy of unfair labor practices brought before it.

The NLRA created various remedies to be applied by the NLRB, including injunctive relief in the event that employers committed egregious unfair labor practices that poisoned the fair laboratory conditions the law requires for union elections and negotiations.

The NLRB is also responsible for conducting union elections and is required to determine challenges to election proceedings and issue certification orders in the event a union is elected as a bargaining unit’s representative.

The NLRA requires employers to collectively bargain in good faith and will issue bargaining orders in the event that it is not.

It is fair to say that without the NLRA, unions and collective bargaining would not exist in their present form in the United States.

The National Industrial Recovery Act of 1933, the precursor to the NLRA, guaranteed employees the right to organize and bargain collectively through representatives of their own choosing without employer interference.

In exchange for permitting these guarantees, employers were allowed to form trade associations to create minimum prices and terms of fair competition without fear of violating Anti-Trust laws.

The NLRA and NIRA were part and parcel of President Roosevelt’s New Deal legislation.

The intent of that legislative initiative was to provide economic recovery from the Great Depression through a legislative program promoting government/industry cooperation.

However, like many pieces of progressive legislation codified at that time, the NLRA and NIRA faced severe constitutional challenges.

These challenges were best presented in the infamous 1935 Supreme Court decision, A.L.A. Schechter Poultry Corporation v. United States, 295 U.S. 495.

In the Schechter decision, the Supreme Court invalidated provisions of the Live Poultry Code of Fair Competition on the ground that it violated the Commerce Clause of the U.S. Constitution by improperly regulating “intra-state commerce.”

Thus, the court held that in permitting the enactment of the Poultry Code, Congress had improperly encroached on individual states prerogatives.

Based on this decision, the American Liberty League argued against the constitutionality of these laws and advised employers that the NLRA and NIRA may be disregarded.

Opposition to the Recovery Act and the NLRA was so pronounced at the time that once President Roosevelt was re-elected to office in a landslide victory, he developed what’s now been coined the “court packing” plan to add members to the Supreme Court who would be much more sympathetic to his New Deal legislation.

(Roosevelt complained of the “nine old men” who comprised the court at the time.)

Not surprisingly, faced with being rendered irrelevant by the court packing plan, in 1937, the Supreme Court declared the NLRA to be constitutional in NLRB v. Jones & Laughlin Steel Corporation, 301 U.S. 1.

In Jones & Laughlin, the court sustained the NLRB’s ability to issue an unfair labor practice complaint in face of the employer’s constitutional challenge to the NLRA.

This challenge had been sustained by the U.S. Court of Appeals of the Fifth Circuit.

The Supreme Court reversed and held that Congress in fact had the right to regulate commerce in as broad a fashion as necessary to prevent industrial conflict even though the effects on commerce may be indirect.

The court cited the effects of a 1919 steelworkers strike as an example of how a labor dispute can have a profound effect upon inter-state commerce.

This decision was a major victory for Roosevelt and his New Deal legislation.

The NLRA has been amended several times.

In 1947, the Taft-Hartley Act passed Congress and established unfair labor practice charge that may be brought against unions.

In 1959 the Landrum-Griffin Act was enacted to develop internal union obligations and reporting.

It is undeniable that the NLRA is the most important piece of legislation for participants in the labor movement.

However, on the eve of its 75th anniversary, we must also reflect upon the future of this historic law and the further refinements that are now necessary.

In appreciating the hard won victory in 1937 we should also move forward and push for the enactment of the Employee Free Choice Act.

Under the EFCA, employees may dispense with arcane election procedures codified in the NLRA and obtain union representation quicker through the streamlined card checking process. Without enactment of the EFCA, the goals intended for the NLRA may never be fully realized.

Harvey Mars is counsel to Local 802. Legal questions from members are welcome. E-mail them to Harvey Mars’s previous articles in this series are archived at (Click on “Publications & Articles” from the top menu.) Nothing here or in previous articles should be construed as formal legal advice given in the context of an attorney-client relationship.