National Labor Relations Act

Reference: Wikipedia

The National Labor Relations ActNLRA, or Wagner Act (after its sponsor, New York Senator Robert F. Wagner) (Pub.L. 74–198, 49 Stat. 449, codified as amended at 29 U.S.C. § 151–169), is a 1935 United States federal law that protects the rights of employees in the private sector to discuss organizing and workplace issues with coworkers, engage in collective bargaining, and take part in strikes and other forms of protected concerted activity in support of their demands. The act also created the National Labor Relations Board which conducts elections which, if voted in favor of representation, awards labor unions (also known as trade unions) with a requirement for the employer to engage in collective bargaining with this union. The Act does not apply to workers who are covered by the Railway Labor Act, agricultural employees, domestic employees, supervisors, federal, state or local government workers, independent contractors and some close relatives of individual employers.[1]

Under section 9(a) of the NLRA, federal courts have held that wildcat strikes are illegal, and that workers must formally request that the National Labor Relations Board end their exclusive bargaining association with their labor union if they feel that the union is not sufficiently supportive of them before they can legally go on strike.

Principles

President Franklin D. Roosevelt signed the legislation into law on July 5, 1935.[2] The key principles of the NLRA are embodied in its concluding paragraph of section 1 including:[3]

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.

President Roosevelt signs the NLRA into law, June 6, 1933

The key principles also include:

  • Protecting a wide range of activities, whether a union is involved or not, in order to promote organization and collective bargaining.
  • Protecting employees as a class and expressly not on the basis of a relationship with an employer. Sections 2(5) and 2(9).[4]
  • There can be only one exclusive bargaining representative for a unit of employees.
  • Promotion of the practice and procedure of collective bargaining.
  • Employers have a duty to bargain with the representative of its employees.
  • Employees are allowed to discuss wages.[5][6][7]

Unfair practices

The law defined and prohibited five unfair labor practices[8] These prohibitions still exist, while others have been added under later legislation. The original employer unfair labor practices consisted of:[9]

  • Interfering with, restraining or coercing employees in their rights under Section 7. These rights include freedom of association, mutual aid or protection, self-organization, to form, join, or assist labor organizations, to bargain collectively for wages and working conditions through representatives of their own choosing, and to engage in other protected concerted activities with or without a union. Section 8(a)(1)
  • “Dominating” or interfering with the formation or administration of any labor organization . Section 8(a)(2)
  • Discriminating against employees to encourage or discourage acts of support for a labor organization. 8(a)(3)
  • Discriminating against employees who file charges or testify. 8(a)(4)
  • Refusing to bargain collectively with the representative of the employer’s employees. 8(a)(5)

Enforcement

The National Labor Relations Board has two basic functions: overseeing the process by which employees decide whether to be represented by a labor organization and prosecuting violations. Those processes are initiated in the regional offices of the NLRB.[10]

The National Labor Relations Act is enforced by the National Labor Relations Board[11] and the General Counsel of the National Labor Relations Board.[12]

The NLRB’s website includes the text of manuals useful for those who are engaged in union organizing or in the practice of labor relations and law. These include Rules and Regulations.[13]

The list of practice manuals whose text may be found on the NLRB Website[14] include:

  • NLRB Casehandling Manual, Part 1, Unfair Labor Practice Proceedings
  • NLRB Casehandling Manual, Part 2, Representation Proceedings
  • NLRB Casehandling Manual, Part 3, Compliance Proceedings
  • NLRB An Outline of Law and Procedure in Representation Cases
  • NLRB Guide for Hearing Officers
  • NLRB Bench Book
  • NLRB Section 10(j) Manual (Redacted) (PDF*)
  • NLRB FOIA Manual
  • NLRB Style Manual
  • Dos Idiomas — Una Ley, Two Languages — One Law (A Bilingual Guide)

Reactions

The act was immediately controversial.

First, the American Liberty League viewed the act as a threat to freedom and engaged in a campaign of opposition in order to repeal these “socialist” efforts. This included encouraging employers to refuse to comply with the NLRA and supporting the nationwide filing of injunctions to keep the NLRB from functioning. This campaign continued until the NLRA was found constitutional by the Supreme Court in National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937).

Second, the American Federation of Labor and some employers accused the NLRB of favoring the Congress of Industrial Organizations, particularly when determining whether to hold union elections in plant-wide, or wall-to-wall, units, which the CIO usually sought, or to hold separate elections in separate craft units, which the craft unions in the AFL favored. While the NLRB initially favored plant-wide units, which tacitly favored the CIO’s industrial unionism, it retreated to a compromise position several years later under pressure from Congress that allowed craft unions to seek separate representation of smaller groups of workers at the same time that another union was seeking a wall-to-wall unit.

Third, as time went by, employers and their allies in Congress also criticized the NLRB for its expansive definition of “employee” and for allowing supervisors and plant guards to form unions, sometimes affiliated with the unions that represented the employees whom they were supposed to supervise or police. Many accused the NLRB of a general pro-union and anti-employer bias, pointing to the Board’s controversial decisions in such areas as employer free speech and “mixed motive” cases, in which the NLRB held that an employer violated the Act by using misconduct that ordinarily would not result in termination to fire an employee who was engaged in pro-union activity. In addition, employers campaigned over the years to outlaw a number of union practices such as closed shops, secondary boycotts, jurisdictional strikes, mass picketing, strikes in violation of contractual no-strike clauses, pension and health and welfare plans sponsored by unions and multi-employer bargaining.

Many of these criticisms included provisions that employers and their allies were unable to have included in the NLRA. Others developed in reaction to NLRB decisions. Over all, they wanted the NLRB to be neutral as to bargaining power, but the NLRA’s policy section takes a decidedly pro-employee position:

It is 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.

Some of these changes were later achieved in the 1947 amendments.

Amendments

Opponents of the Wagner Act introduced several hundred bills to amend or repeal the law in the decade after its passage. All of them failed or were vetoed until the passage of the Taft-Hartley amendments in 1947. More recent failed amendments included attempts in 1978 to permit triple backpay awards and union collective bargaining certification based on signed union authorization cards, a provision that is similar to one of the proposed amendments in the Employee Free Choice Act. Under the NLRA, unions can become the representative based on signed union authorization cards only if the employer voluntarily recognizes the union. If the employer refuses to recognize the union, the union can be certified through a secret-ballot election conducted by the NLRB.

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