Wednesday, April 18, 2012

Are Employers Afraid of Employees Learning of their NLRA Rights?

The Latest Obstacle Against Posting Notices of NLRA RightsAre
Employers Afraid
Employees Might Learn Of Their Rights and Exercise Them?

Charles J. Morris
(c) 2012
The 2011 notice-posting rule of the National Labor Relations Board (NLRB or Board) continues to receive intense judicial scrutiny in the two federal court cases pending in Washington D.C. and Charleston, South Carolina.  In the D.C. case, National Association of Manufacturers  v. NLRB, Judge Amy Berman Jackson ruled in favor of the NLRB on the basic issue, approving issuance of the rule, but she struck down its enforcement procedures.  Those issues will be decided on appeal and cross appeal in the D.C. Court of Appeals where the case is now pending; that court just issued an injunction prohibiting application of the rule while its validity is being determined.  The latest ruling on the substantive issue occurred on April 13 in the South Carolina case, Chamber of Commerce v. NLRB, where Judge David Norton held that the Board had no authority to issue the rule; the Board has indicated that it will appeal. 

With court approval, I filed amicus-curiae briefs in both of those district court cases,  This was consistent with my continued interest in this important issue, which began nineteen years ago when I filed the rulemaking petition that initiated the Board’s issuance of the rule that is now being challenged.  I briefly noted this issue in my first blog on February 25, and I shall now focus attention on Judge Norton’s ruling in the Chamber of Commerce case in which he unequivocally held that the Board lacked authority under the National Labor Relations Act (NLRA) to issue a rule requiring all employers subject to the Board’s jurisdiction to post an NLRB notice in their workplaces that advises employees of their rights under the NLRA and how to obtain protection of those rights.  

In terms of settled law, Judge Norton’s Opinion is incredible.  In the unlikely event that it is allowed to stand, he will, by judicial fiat, have effectively repealed Section 6 of the NLRA, the provision that authorizes the Board to issue substantive rules in accordance with the Administrative Procedure Act (APA), and by logical implication it will have also limited the Board’s ability to issue any such broad rule by adjudication.  Disregarding basic Supreme Court tests regarding agency rulemaking, Judge Norton invented a new test that is so extreme that it would have denied the Board’s right to issue the important unit rule for acute hospital care employees which the Supreme Court approved in the American Hospital Association case with specific language that Judge Norton quoted but failed to heed, which is that

if Congress had intended to curtail in a particular area the broad rulemaking authority granted in § 6, we would have expected it to do so in language expressly describing an exception from that section or at least referring specifically to that section.

Ignoring those unambiguous words from the highest court, Judge Norton has ruled just the opposite.  Under his topical heading of “The Meaning of Silence,” he asserts that

Because the statute is “silent” as to the notice posting, the court must look beyond the plain language of the statute to determine whether Congress intended to delegate authority to the Board to fill this legislative silence.

Prior to that, however, his tortuous Opinion asserts that the “court must be guided by the plain meaning of the word ‘necessary’ [in Section 6] and the statutory framework that channels the Board’s powers away from proactive regulation of employers to a mechanism whereby the Board’s functions are triggered by an outside party.”  Then, as if with blinders on his eyes, he purports to examine the “Statutory Scheme,” but he fails to see the quasi-legislative nature of Section 6 (as well as the Supreme Court’s definition of that section), focusing instead on his limited view of what Congress intended, which is that the Board is to “be a reactive, quasi-judicial body with two primary functions,” i.e., deciding unfair-labor-practice cases and conducting representation elections.   He is correct about the Board’s quasi-judicial function, but he overlooks its proactive function, which Section 6 specifies.  The Board alone is given the authority to initiate and adopt substantive rules by “notice and comment” rulemaking, which was emphasized and clarified by Taft-Hartley’s legislative history of the APA feature, which the court’s Opinion fails to mention. 

Judge Norton departs from the common judicial definition of “necessary” by declaring that the present Board has confused a “ ‘necessary’ rule with one that is simply useful, although he concedes that “[t]he court  does not discredit the Board’s factual finding of a need for the notice-posting rule” and that “the court respects the Board’s decision on that issue,” nor does he dispute the Board’s finding with regard to employees’ knowledge of their rights under the NLRA, that “most employees are unaware of those rights.”  Yet, he says, these facts are not sufficient because the Board “defendants have not shown that the rule is ‘necessary’ to carry out any other provision of the Act.”  This is so, according to the Opinion,  because “the Act places no affirmative obligation on employers to post notices of employee rights or inform employees of those rights [therefore] the rule cannot be ‘necessary’ to carry out a nonexistent provision.” 

Of course such provision is not “nonexistent,” for it, or more properly they, are clearly contained and stated in Sections 1, 7, and 8(a)(1).  Section 6, by its clear text, applies to all provisions of the Act, i.e., it grants " make...such rules and regulations as may be necessary to carry out the provisions of this Act."  (Emphais added.) 

 Regarding Section 1, as Judge Norton inconsistently concedes that the “[notice-posting] ‘rule’ aids or ‘furthers’ the aspirational goals of Section 1 by notifying employees of their rights under Section 7.”  Indeed, Section 1 clearly declares that “the policy of the United States” is

encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

Regarding Section 7, this is the provision that represents the primary content of the notice to be  posted.  And regarding Section 8(a)(1), this is the provision which states that it is  “an unfair labor practice for an interfere with...employees in the exercise of the rights guaranteed in section 7.”  (Emphasis added.)

Of these three applicable provisions, Section 8(a)(1)which Judge Norton never discussesis the key provision directly involved in the Board’s determination that is expressed in the notice-posting rule, that a refusal to post notices informing employees of their Section 7 rights and how to protect those rights interferes with the exercise of those rights and that such a refusal can be the subject of a subsequent charge alleging violation of Section 8(a)(1) .  This is when the Board’s quasi-judicial function is “triggered by an outside party.”

This Section 8(a)(1) determination is similar to what occurred when the Board fashioned the Weingarten rule (through the traditional alternative-method of rulemaking through adjudication that was validated in NLRB v. Bell Aerospace Co.), which established that a refusal by an employer to allow the presence of a grievant’s union representative, when so requested by the grievant, violates Section 8(a)(1), which the Supreme Court fully approved.  The Weingarten rule, like the notice-posting rule in issue, requires the employer to do something before, and without reference to, the filing of an unfair labor practice charge, but failure to allow the representative’s presencelike the failure to post the notice in the Chamber of Commerce case creates a potential unfair labor practice. 
The Supreme Court in Weingarten also defined the Board’s role in a manner especially applicable to the Board’s issuance of the notice-posting rule that Judge Norton was reviewing.  Here is that definition:

The use by an administrative agency of the evolutional approach is particularly fitting.  To hold that the Board’s earlier decisions froze the development of this important aspect of the national labor law would misconceive the nature of administrative decisionmaking....

            The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board....It is the province of the Board, not the courts, to determine whether or not the “need” exists in light of changing industrial practices and the Board’s cumulative experience in dealing with labor -management relations.  For the board has the “special function of applying the general provisions of the Act to the complexities of industrial life”....

Although there are many errors in Judge Norton’s Order/Opinion in addition to the few briefly noted above, those are the ones that immediately stand out. 

I close this comment with four questions:  (1) Why are nonunion employers so afraid of employees learning about their basic rights under the National Labor Relations Act?  (2) Could it be that they are afraid that some of them might exercise those rights?  (3) And why is the U.S. Chamber of Commerce and the NAM, as well as other major non-union organizations, including the National Right to Work Foundation, now contending that the Board has no authority to issue this prophylactic notice-posting rule in view of the fact that they previously supported an earlier effort to have the Board issue a similar rule requiring unions to post a prophylactic notice relating to certain union unfair labor practices?  (4) Could that be a hypocritical flip-flop, depending on whose ox is being gored?

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Thursday, March 22, 2012


by Charles J. Morris © 2012

As a prelude to the forthcoming pre-election debates about the role of labor unions in the American economy, especially how that role is affected by the National Labor Relations Board (NLRB or Board), the air needs to be cleared of critical misinformation propagated by the management lobby and their anti-union allies in the Republican party.  For the past several decades those groups have contended, erroneously, that the 1947 Taft-Hartley Act changed the basic policy of the National Labor Relations Act (NLRA or Act) from being pro-collective bargaining to one of neutrality between union and non-union employeeswhich it did not. 

Although not generally recognized, the Act’s monolithic statutory policythough not its enforcement recordhas at all times been to encourage union organizing and collective bargaining.  That conclusion is an incontrovertible factnotwithstanding the management lobby’s several unsuccessful attempts to change that policy by Congressional amendment.  Those legislative failures, however, were offset by widespread dissemination of false and revisionist versions of the Act’s policy, which did succeed in changing the general perception of that policyand hence the conventional wisdom.  As a result, most labor-relations observers and participants now assume that the NLRB is required to be rigorously neutral between labor and management and that the paramount purpose of the Act is to provide employees with the freedom to select or not select union representation, preferably through an election, and collective bargaining is relegated to secondary status where its importance is conceded only after employees have chosen to be represented by a union .  Although the Board genuinely strives to maintain strict neutrality in its adjudication of facts, the foregoing revisionist version of the Act’s policy grossly distorts the true policy that Congress enacted and intended.  Congress gave the Board a unified policy-driven role which it spelled out in three separate statutory provisions, the most recent one of which was enacted in 1959, twelve years after Taft-Hartley.  It specifies that it is “the responsibility of the Federal Government [i.e., the NLRB] to protect employees’ rights to organize, choose their own representatives, bargain collectively, and otherwise engage in concerted activities for their mutual aid or protection.”  (This and all subsequent italics in this blog have been added for emphasis.)  The Act was deliberately designed to encourage employees to exercise their latent economic power by protecting their right to act in concert and to bargain collectively for their wages and other conditions of employment.  The NLRBdespite all the rhetoric to the contraryis a pro-collective bargainng statute, for collective bargaining is the official labor-relations policy of the United States.  Critics of the NLRB need to be reminded often of this Congressional truth and challenged accordingly.

Illustrative of how one revisionist version of the Act’s policy has been usedor more accurately misused was that it was the rationale for several anti-union NLRB decisions issued during the administration of President George W. Bush.  For example, in the Dana Corporation case, the Bush Board rationalized its reversal of the long-established doctrine that allowed employers to voluntary grant union recognition on the basis of demonstrated card-check majorities by asserting that “free choice is, after all, the fundamental value protected by the Act.”

Until the appearance of my recent article, How the National Labor Relations Act Was Stolen and How It Can Be Recovered: Taft-Hartley Revisionism and the Appointment Process, upon which this blog is based, the common assertion that Taft-Hartley changed the policy of the Act was never adequately challenged by a comparison with a full and careful analysis of what the statutory text actually says and what the legislative history actually reveals.  That article, which was briefly noted in my last posting, digs deeply into the Act’s purpose and policy and the related issue of how Republican presidential administrations consistently prevented the Board from fulfilling the policy that Congress intended by selecting and confirming Board appointees whose backgrounds gave assurance that they would not enforce the Act in accordance with that policy.  What follows here is a mostly non-legalese description of the part of that article that explains the Act’s true policy and exposes the fallacies in the revisionist versions of that policy.  For readers interested in a more detailed legal analysis of this material and its pertinent history, with supporting authority, I recommend the full article.  (Here is the link to its early version : ; the final printed version in the Berkeley Journal of Employment and Labor Law will be available shortly.)

The Words of the Statute:

The true policy of the NLRA can be found in the words of the statute and also in the legislative history that supports and explains those words.  But as lawyers and judges commonly recognize, proof in statutory law, as in pudding, is in the eating, i.e., in the reading, not in the making.  So we start with the text of the Act.

Before beginning that reading, however, I want to explain why the Republican-controlled Taft-Hartley Congress was willing to retain all of the Wagner Act’s policy favoring union organizing and collective bargaining, as well as its key protective provisions.  The reason was simply that this was the price the sponsors  had to pay to achieve passage of a bill that required approval from at least two-thirds of the members of both Houses of Congress in order to override President Truman’s anticipated veto, which did occur.  As a result, although that Act was intended to reduce union economic power in the collective-bargaining processwhich it accomplishedit also retained collective bargaining as the nation’s preferred means for determining employee wages and working conditions.

Taft-Hartley thus drastically curtailed the economic power of unions in the collective-bargaining process, and it also overly complicated the Labor Board’s administrative procedures; nevertheless, it carefully preserved all of the Wagner Act’s substantive provisions protective of the right of employees to unionize and engage in collective bargaining and also its clear statement of policy to that effect, even adding new statutory language that reasserted that policy.  The latter Taft-Hartley benefits have not been sufficiently recognized.

We turn now to the statutory text that defines the Act’s policy.  The key provision is contained in the introductory Section 1, which defines that policy with its original 1935 language.  Note especially the italicized phrases:

It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

That text should now be compared with the text of Section 7 quoted below, whichfor a reason that I shall explain laterreceived the italicized part as a minor amendment in the Taft-Hartley Act.  This amendment is the weak link on which the anti-union revisionists have based their assertion of a major change in the policy of the Act, such as in their frequent contention that free choice is the fundamental value protected by the Act.  Here is the full text of Section 7, with the Taft-Hartley addition italicized:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).

Comparison of these two provisions reveals that the policy declaration in Section 1 paraphrases all of the rights spelled out in the original language of Section 7 but conspicuously omits any reference to the Taft-Hartley’s “right to refrain” additional language, notwithstanding that this Section 1 declaration was reenacted twice, once in the Taft-Hartley Act in 1947 and again in the Landrum-Griffin Act in 1959.  It is thus  evident from those repeated omissions, as well as from legislative history to be noted below, that Congress was carefully avoiding allowing the “right to refrain” from union activity to be a part of the Act’s basic policy, which continued to be the encouragement of union and concerted activity and collective bargaining, with no reference to individual or non-union bargaining or no bargaining.    

To further reinforce the monolithic nature of the Section 1 declaration, those same later Congresses enacted separate and additional policy declarations―the key phrases of which are italicized below―thus further reconfirming the undiluted nature of the Wagner Act policy.  The additional declaration in the 1947 Taft-Hartley Act (29 U.S.C. § 271(a))  states in pertinent part

That it is the policy of the United States that—

            (a) sound and stable industrial peace and the advancement of the general welfare, health, and safety of the Nation and of the best interests of employers and employees can most satisfactorily be secured by the settlement of issues between employers and employees through the process of conference and collective bargaining between employers and the representatives of their employees.

The additional previously noted declaration in the 1959 Landrum-Griffin Act (29 U.S.C. § 401(a) reads in pertinent part as follows:

Congress finds that, in the public interest, it continues to be the responsibility of the Federal Government to protect employees’ rights to organize, choose their own representatives, bargain collectively, and otherwise engage in concerted activities for their mutual aid or protection.... 

All of the above statutory language should suffice to demonstrate the singularity of the Act’s policy.  Yet, because anti-union spokespersons have so persistently pointed to the presence of the “right to refrain” language in Section 7 to support their policy contentions, further scrutiny of that part of the statute is in order.

As attorneys and others dealing with the NLRA are well aware, and as the structure of the Actreveals, Section 7 is not a self-enforcing provision.  It is only a repositorybut an exceedingly important oneof  basic rights under the Act, rights that are enforceable only through the unfair labor practice (ULP) provisions in Section 8 and the enforcement procedures in Section 10.  Because of differences in their key words, which are italicized below, two of those ULP provisions are of major importance to the meaning of Section 7’s “right to refrain.”  Sections 8(a)(1), which is applicable to employer conduct, provides that

It shall be an unfair labor practice for an interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.

Section  8(b)(1)(A), which is applicable to union conduct, provides that

It shall be an unfair labor practice for a labor organization or its restrain or coerce...employees in the exercise of the rights guaranteed in section 7.

It is evident, by comparison, that the only union conduct prohibited by Section 7’s protection of the right of employees to refrain from engaging in union and other concerted activity is conduct that restrains or coerces, i.e., active conduct that actually inhibits or prevents employees from exercising their right to refrain, for to be unlawful, the union’s targeted conduct must restrain or coerce, not merely interfere.  This is decidedly unlike the broader restriction applicable to employers under Section 8(a)(1), which prohibits interference, as well as restraint and coercion, of employees who engage in union and other protected concerted activity under Section 7.

Accordingly, the “refrain” language in Section 7 is simply the text that triggers Section 8(b)(1)(A) enforcement—just as the union-organizing and collective-bargaining text in Section 7 triggers Section 8(a)(1) enforcement.  That was all that Congress meant by the inclusion of the “refrain” language in Section 7, and—as we shall see—that conclusion is confirmed both by legislative history and by the Supreme Court’s subsequent construction of that text.  The fact that Section 7 is not independently enforceable is thus dispositive of the limited purpose that Congress intended for this statutory recognition of the right of employees “to refrain” from engaging in concerted activity.

Despite the fact that anti-union revisionists have largely succeeded in convincing the interested public to believe otherwise, the only conclusion that can legitimately be drawn from all of the above statutory text is that the sole policy of the Act is Section 1’s encouragement of

collective bargaining and protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

That statutory policy is reinforced by its legislative history.

Legislative History:

Between 1935 and 1947 union membership in the United States grew from three to fifteen million, and when Taft-Hartley was being considered as many as twenty million workers may have been covered by exclusive collective bargaining contracts. Some industries, including coal mining, steel, auto, construction, railroads, and trucking, had become almost totally unionized.  The resulting surge in collective bargaining, with its accompanying increases in wages and other benefits, produced in the long term a stronger middle class and a narrowing of income disparity among income earners, but in the short term it produced a wave of strikes that shut down many steel mills, auto plants, seaports, and large sections of other industries, all of which generated strong opposition among much of the public.  As a consequence,  following World War II there was considerable popular criticism of union power and a widely held belief that the NLRB had become one-sided and even influenced by Communists within the agency.    These were the principal factors that led to passage of the Taft-Hartley Act by the Republican dominated 80th Congress.

The Act that emerged was primarily a union regulatory statute, not anything else.  All of Taft-Hartley’s substantive law changes were regulatory of unions and union conduct.  The other changes, though numerous and important, were essentially changes in procedural and remedial law.  The basic union-organizing and collective-bargaining provisions, as well as the declared policy of the Act, remained unchanged.

Thus, at a time when the American labor movement was widespread and strong, Taft-Hartley succeeded in weakening the unions’ economic power within the collective-bargaining systemespecially by outlawing secondary boycotts and eliminating the closed shopbut without making any structural changes to that system.  As Senator Robert A. Taft, the Act’s chief sponsor, explained in a radio address following President Truman’s veto, the intent of the legislation was “to restore equality in collective bargaining,”  for, as he had explained on the floor of the Senate, the aim was “to get back to the point where, when an employer meets with his employees, they have substantially equal bargaining power….If there is reasonable equality at the bargaining table, I believe that there is much more hope for labor peace.”  He emphasized that the bill was “based on the theory of the Wagner Act…on the theory that the solution of the labor problem in the United States is free, collective bargaining.”   

The Hartley bill that passed in the House was a harsh anti-union measure that contained many elements inconsistent with the collective-bargaining process.  On the other hand, the Taft bill in the Senatewhich emerged, with only a few exceptions, as the bill that finally became the lawwas mild by comparison.

Despite the restrictions on union conduct contained in the Senate bill, from the beginning the Senate version expressly retained the concept of collective bargaining as the key focus of the Act.  Had that not been so, it is unlikely that moderates in the Senate, such as Republican Irving Ives of New York, would have approved of its passage.  In fact, Senator Ives, who had been the founding dean of the New York School of Industrial and Labor Relations at Cornell University and a long-time supporter of collective bargaining, was an active backer and one of the architects of the Taft bill.  It is especially significant that it was Senator Ives’ amendment that removed from the bill the phrase “interfere with” in Section 8(b)(1)the union unfair-labor-practice provision noted above that was meant to be the counterpart to Section 8(a)(1), the employer unfair-labor-practice provision.  Ives told his fellow senators that prohibiting unions from “interfering with” employee rights “may later, by interpretation and effect, defeat legitimate attempts at labor organization.”  His colleagues agreed, and his amendment to delete that phrase was adopted without objection.

The collective-bargaining policy of the Act was further underscored by the Senate subcommittee’s report on the Taft bill, which stated that the “bill is predicated upon our belief that a fair and equitable labor policy can best be achieved by equalizing laws in a manner that will encourage free collective bargaining.  The bill that passed the Senate made no changes in any of the foregoing provisions.  In contrast, the House bill, which contained many provisions adverse to unionization and collective bargaining, passed the House without any changes.

When the conflicting bills were sent to conference committee, the House’s approach was totally rejected.  Senator Ives was one of the Senate’s conference committee managers who succeeded in convincing a majority of the House conference managers to accept almost all of the provisions of the Senate bill, including the verbatim reenactment of the Wagner Act’s core provisions and its “Findings and Policies” (except for three innocuous revisions in the Findings).  The bill that emerged from conference was thus essentially the Senate bill with only a few additions, none of which affected the core provisions of the Wagner Act or its findings and declaration of policy.

The Senate’s victory was grudgingly recognized by proponents of the House bill—but very unhappily.  For instance, Representative C. E.  Hoffman, who had been one of the House conference committee managers, was so disappointed with the resulting bill that he declined signing the House’s conference committee report and during the brief debate that followed remarked “I do not like the bill….this was the gift of the Congress to the unions and the union leaders.” Nevertheless, he and other disappointed House members voted for the bill and also the motion to override the President’s veto.  Their disappointment thus underscored that Taft-Hartley did not change the core policy of the Act.

Although the bill that was finally enacted was tilted in numerous ways to favor employers, in order to achieve its passage with sufficient support among members of both houses of Congress and, as previously noted, to avoid a presidential veto and when a veto was deemed likely to have the votes to override it, the final bill enacted over President Truman’s veto made it absolutely clear that the policy of the Act would continue to be the encouragement of union organizing and collective bargaining.

So much for the legislative history of the declared policy.  But what does that history tell us about the phrase in Section 7 that gives employees the right “to refrain” from engaging in union and other concerted activity?  To the Taft-Hartley Congress, that was not even deemed a change in the law, and it certainly was not intended to affect the Act’s underlying purpose.  Congress carefully and deliberately subordinated this minor right-to-refrain to the major right-to-organize and engage in collective bargaining, for unions at that time were recognized as a natural and accepted participant in labor-management relations.  In fact, the “refrain” addition to Section 7 was not viewed as an important amendment and was never the subject of any floor discussion in either the House or the Senate.  That legislative silence is obviously why the revisionists have never found any quotations from members of either the House or the Senate to support their fictitious contention that this minor amendment changed the Act’s basic policy.

There was, however, considerable Congressional debate about the initial language in Section 8(b)(1), which, as we have seen, was corrected by Senator Ives’s amendment that removed the broad phrase “interfere with” from the narrower phrase “restrain or coerce,” which remained in the bill.  That deletion represented further confirmation that Congress was careful to avoid prohibiting conduct that encouraged union membership or activity or collective bargaining.  Section 7 and the amended Section 8(b)(1)(A) thus outlawed only harsh union conduct that directly restrained or coerced employees, and those provisions were to be activated only by the filing of specific unfair-labor-practice chargesunlike what happened in the previously noted Dana Corporation case, where no violation of Section 8(b)(1)(A) was even alleged.  Means and not ends were the only intended targets of the “right to refrain,” for with “interfere with” deleted from Section 8(b)(1)(A),  its enforcement was to be confined to the rare instances of restraint or coercion.  That conclusion is supported by the Congressional debate on the Ives amendment and its adoption where, as the reader will recall, Senator Ives stressed the need to employ language that could not to be used to fashion rules or decisions that “may later, by interpretation and effect, defeat legitimate attempts at labor organization,” and also by the Supreme Court’s construction of those provisions in the Curtis Brothers case, which is noted below.

Senator Taft made it explicitly clear that this was the limited purpose intended by the “right to refrain” text in Section 7, for in his explanation as to why that amendment was added he stated that :

The new language... merely makes mandatory an interpretation which the Board itself had already arrived at administratively.  The reason for its inclusion was that similar language had appeared in the House bill and since section 8(b)(1) of the Senate bill, which was retained by the conference, made it an unfair labor practice for labor organizations to restrain or coerce employees in the rights guaranteed them in section 7, the House conferees insisted that there be express language in section 7 which would make the prohibition contained in section 8(b)(1) apply to coercive acts of unions against employees who did not wish to join or did not care to participate in a strike or a picket line. (Emphasis added.)

Legislative history is therefore unambiguous as to the limits of what was intended by the addition of the “right to refrain” language.  Senator Taft’s statement that it was intended to protect employees from such conduct as “coercive acts of unions against employees who did not wish to join or did not care to participate in a strike or a picket line” confirms its narrow scope, which the Supreme Court later reconfirmed in Curtis Brothers with its approval of the Board’s interpretation in a 1948 decision that

By Section 8(b)(1)(A), Congress sought to fix the rules of the game, to insure that strikes and other organizational activities of employees were conducted peaceably by persuasion and propaganda and not by physical force, or threats of force, or of economic reprisal.  In that Section, Congress was aiming at means, not at ends. 

The reader will also recall the conspicuous absence of “right to refrain” language in all three of the Act’s declarations of statutory policy.  Those omissions were not inadvertent, for the legislative record shows that the Senate-House conference committee deliberately excluded any reference to that “right to refrain” from the main policy declaration in Section 1, and the omissions from the separate policy declarations in the Taft-Hartley and Landrum-Griffin Acts silently tell the same story.  Those omissions are significant because, as we have seen, the language in Section 1 that describes the Act’s policy favoring union organizing and collective bargaining represents a complete paraphrasing of all the original Section 7 rights—even including the generic “other mutual aid or protection” objective.  However, when the Taft-Hartley Congress added the “right to refrain” to Section 7 it chose not to add that feature to the policy description in Section 1.  This was not an oversight, for the conference committee—which deliberated for two full weeks—did add, immediately preceding the Wagner-Act policy declaration in Section 1, an entirely new paragraph taken from the Senate bill that asserted in its key part that “certain practices by some labor organizations, their officers, and members have the intent or the necessary effect of impairing the public’s interest in the free flow of commerce.”  Thus, had Congress—or more specifically the conference committee—intended to equate the “right to refrain” with the core policy of union-organizing and collective-bargaining, it would surely have done so with the simple addition of the “refrain” text when it inserted the foregoing union-impairment paragraph immediately before the paragraph containing the declaration of policy.


Accordingly, with the withdrawal of the underpinning phrase of “interfere with” from Section 8(b)(1)(A) and the omission of the “right to refrain” from all of the statutory declarations of policy, the revisionists’ house-of-cards falls like the Queen’s cards in Alice in Wonderland.  Unambiguous text and consistent legislative history leave no doubt that the “right to refrain” from union activity has no force or effect beyond its limited protection against restraint or coercion, thus refuting the revisionists’ claims that it changed the policy of the Act.

Saturday, February 25, 2012

The Forgotten Role of Unions

In this heated political seasonheated before the real action even beginsthe public needs to be reminded of some little-remembered truths about the role of unions in America.  And attention needs to be focused on the persistent tendency of Republicans to demonize unions.  Our memory of the importance of a strong labor movement needs refreshing.  As my generation well remembers, when unions were strong several decades ago the American middle class was the envy of the world.  The economic progress that unions produced through collective bargaining represented an important feature of a free enterprise system that was spreading the wealth with a minimum of governmental participation.  If employees are again allowed to achieve substantial union representation without employer interference, that is the direction toward which this country can again be moving.
Despite their rhetoric, anti-union employers are not interested in workers exercising free choice in choosing or not choosing union representation.  They are proving that once again, at this very moment, with three pending federal court lawsuits which they filed against the National Labor Relations Board in order to prevent employees from learning of their rights in the workplace about how to be represented or not represented by a union and how to protect themselves when their employer “interferes with, restrains, or coerces” them in the exercise of those rights.  Obviously, non-union employers are afraid to allow their workers to learn about their rights, fearing that some might actually exercise them.  Through those law suits and two bills in Congress, major anti-union employer organizations, including the National Association of Manufacturers, the U. S. Chamber of Commerce, and the National Right to Work Foundation, with the assistance of some Tea Party members of Congress, are thus now conducting an expensive and intensive campaign to avoid having to post workplace notices advising employees of their rights under the National Labor Relations Act.  Such an effort by private parties to suppress official speech should be deemed shameful in a free democracy.  It is also noteworthy--but sad--that the general media have virtually ignored these happenings.
I close this brief message with a reminder that we should not forget what most Americans today never knew, that the right to organize in unions and engage in collective bargainingbut not the right to refrain from such activityis the official “policy of the United States” expressly spelled out in the law by Congress.  Despite several unsuccessful efforts by non-union employers and their Republican allies to change that policy, this is still the national labor policy.  Although they were unable to legally change the policy, they did succeed however, through a sustained program of historical revisionism, in creating a false conventional wisdom that denies that policy.  It is time for the truth to prevail, for this important legal issue has the capacity to contribute to the regrowth of a strong middle class, which certainly needs to be understood in this election season.   My latest article, How the National Labor Relations Act was Stolen and how it can be Recovered: Taft-Hartley Revisionism and the NLRB Appointment Process, which will soon be published by a University of California at Berkeley law journal, fully documents the history and law showing the current applicability of this national labor policy.  I shall have more to say on this subject in future blogs.  I also want to advise that I have a personal involvement in the matter of the above NLRB notices, about which I shall provide further information at a later date.       

Friday, February 24, 2012


Welcome to my new blog. I shall be commenting here on current issues involving labor relations and labor law. I shall especially comment on matters affecting the National Labor Relations Board.

My most recent article on this topic is How the National Labor Relations Act Was Stolen and How It Can be Recovered: Taft-Hartley Revisionism and the NLRB Appointment Process, which will shortly appear in the Berkeley Journal of Employment and Labor Law. An earlier version is online at