NATIONAL LABOR POLICY: TRUTH
VS. REVISIONISM
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 employees―which it did not.
Although not generally recognized, the Act’s monolithic statutory
policy―though not
its enforcement record―has
at all times been to encourage union organizing and collective bargaining. That conclusion is an incontrovertible fact―notwithstanding 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 policy―and 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 NLRB―despite all the rhetoric
to the contrary―is
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 used―or
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 : http://charlesjmorris.blogspot.com
; 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 process―which it accomplished―it 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, which―for
a reason that I shall explain later―received 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 repository―but an exceedingly
important one―of 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 employer...to 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 agents...to 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 system―especially by outlawing secondary boycotts and eliminating
the closed shop―but
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 Senate―which
emerged, with only a few exceptions, as the bill that finally became the law―was 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 charges―unlike 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.
Conclusion:
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.
