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Labor and Labor Practices - Further Readings

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Introduction
The story of organized labor in America is one of struggle. Labor unions wereviewed by many, especially employers and capitalists, as unlawful organizations. The law was almost always favorable to employers over employees: even the Sherman Anti-Trust Act, which was passed in order to curb corporate concentration, was used as a weapon--it furnished the rationale for injunctions against many types of union activity, from organizing to picketing to striking, as illegal restraints of trade. Federal troops were called in to stop strikesat times, and illegal and violent behavior by unions was punished while authorities looked the other way when employers engaged in similar behavior. Onlythe First Amendment guarantee of free association prevented the outlawing ofunions altogether.
Not only law but social theory held that unions were socialistic, un-Americanorganizations. In the latter part of the nineteenth century the theory of Social Darwinism--the survival of the fittest--was popular: those who did not prosper were morally deficient, and aiding them only weakened the human race.Economic outcomes were best left to nature and a laissez-faire economic system.
Workers were supposed to take what the market offered, and it usually was notmuch. Twelve-hour workdays and six-day workweeks for wages barely at the subsistence level were common. Working conditions were often extremely dangerous, and many workers were killed or maimed in industrial accidents. As immigration and urbanization increased, large populations of unskilled laborers livedin slums in appalling conditions of poverty. Many were casual workers, day laborers with no permanent employment.
The success of workers, attempts to organize largely depended on the level ofskill needed to perform their jobs. It was harder to replace skilled labor than unskilled labor, and such workers often possessed knowledge of manufacturing or other procedures that their employers did not. Thus tradesmen such astypesetters unionized earlier than other less skilled workers. Railroads became unionized in the mid-nineteenth century due to their skilled workers and also because of their capacity to disrupt the economy on a large scale.
As the American economy became more and more industrialized, labor unrest grew. Numerous large, violent strikes occurred, and literal battles were foughtbetween workers and agents of the employers. Unions were still hampered by ahostile legal climate and by internal differences over methods, as well as bytheir own hostility toward immigrants and African Americans, who during strikes had little compunction about replacing those who excluded them.
By the late nineteenth century, labor unrest seemed nearly constant, but it was not until the 1900s that the tide began to turn for labor. Bit by bit, legislation was passed that slowly began to construct a set of rights and procedures by which workers could organize and bargain collectively with governmentsanction.
During the Great Depression of the 1930s, labor conditions worsened for manyas employers tried to take advantage of high unemployment (as high as 25 percent of the labor force) to force down their costs. Public opinion began to turn in favor of organized labor, and for workers seeking to organize, the highpoint of legislative action came with the passage of the National Labor Relations Act (NLRA) in 1935.
After passage of the NLRA, union membership grew rapidly, and by the late 1940s about one in three workers was a union member. By the late 1950s, however,union membership began to decrease, and today only about 16 percent of the workforce is unionized.
Federal Labor Legislation
The two most important federal acts relating to organized labor are the Wagner Act and the Taft-Hartley Act. The following describes both acts and lists their major provisions.
The Wagner Act
The National Labor Relations Act (NLRA), also called the Wagner Act after itssponsor, Democratic Senator Robert F. Wagner from New York, was enacted in 1935. With the passage of the NLRA Congress moved for the first time to lay out a legal framework for dealing with labor unrest. The act applies to all employers and employees involved in interstate commerce. Among the groups not covered by the NLRA, however, are domestic servants working in their employers'homes, children and spouses of employers, and independent contractors. (Managerial employees are also not covered, nor are railroad and airline employees, who come under the jurisdiction of the Railway Labor Act of 1926).
The National Labor Relations Act legitimized and codified the rights of workers to organize and bargain collectively and to strike. It prohibits domination of, interference with, or financing of unions by employers; interference with the rights of employees to organize and bargain collectively; the placingof conditions on employment to discourage workers from organizing; and firingof, or discrimination against, employees who testify or file charges under the act. And most importantly, it requires employers to bargain collectively with unions that it has certified. Violation of any of these rules is deemed an unfair labor practice.
In order to enforce these rules, the National Labor Relations Board (NLRB) was established as an independent federal agency. An important part of its jurisdiction is the supervision of union elections and the enforcement of laws prohibiting unfair labor practices by either labor or management. The NLRB hasthe power to order employers to cease unfair labor practices and to order thereinstatement of workers with back pay when necessary. The five members of the board, as well as the general counsel are appointed by the president withthe consent of the Senate, the general members for five years and the generalcounsel for four years. The general counsel is responsible for prosecuting unfair labor practice cases.
The Taft-Hartley Act
Public opinion turned against organized labor in the postwar period, and overthe veto of President Harry S. Truman Congress passed the Labor- ManagementRelations Act of 1947, called the Taft-Hartley Act after its sponsors, Sen. Robert J. Taft, and Rep. Fred A. Hartley. The act amended the NLRA and was a response to what many felt were the coercive actions of too-powerful unions. It defined and prohibited unfair labor practices by unions, removed foremen from coverage under the NLRA, and banned the closed shop. Unions were barred from refusing to bargain collectively as well. A further restraint on large unions was the act's provision authorizing the president to declare a potentially large, disruptive strike (such as by railroad or steel workers) a nationalemergency strike and postpone it for 80 days.
The Taft-Hartley Act also authorized lawsuits against unions for contract violations; established a 60-day no-strike, no-lockout period in situations in which either party wished to cancel an existing labor agreement; barred coercion of non-union employees by unions; prohibited secondary boycotts (boycottsby striking employees against third parties that the firm being struck does business with); and required unions to file reports on financial and other matters in order to receive NLRB protection. In 1959 the act was amended by theLandrum-Griffin Act (Labor-Management Reporting and Disclosure Act), which dealt with the relations between unions and their members.
An Overview of Labor Law
Labor law is complicated and sometimes contradictory and is practiced largelyby specialist attorneys. The NLRB has great discretion in determining factsthat are often subjective (such as a party's intent), and for the many rulesthere are also many exceptions, often hinging on subjective judgments by theNLRB. The goal for the NLRB is to attempt to balance the rights of workers with those of employers. What follows is a rudimentary overview of law regulating the conduct of labor unions and employers.
Union Organizing Campaigns
Employers may not prohibit organizing efforts of workers on company propertyduring nonworking time such as lunch periods, rest breaks, and before and after shifts, but generally they may ban non-employee organizers from company property. Employers may give captive speeches discouraging union formation to employees during work hours, and they are not required to give the union an opportunity to reply, but captive speeches are prohibited in the 24-hour perioddirectly preceding an election. Employers are also barred from threatening to cut the pay of employees if they vote to form a union or discriminating against those who support a union. Employers may not poll employees regarding their views on a pending union election unless union supporters have asked to be recognized without holding an election, and then polling must be by secretballot. In cases of repeated unfair labor practices by an employer, the NLRBmay order the employer to recognize the union.
Union organizers and employees wishing to organize may not threaten or intimidate employees into supporting the formation of a union.
Elections
Elections can take place for three possible reasons: to vote on joining a union, to vote on switching membership from one union to another, and to vote ondecertifying a union. When 30 percent of an employer's workforce desire an election, it usually must be held, with some major exceptions. No election maybe held within twelve months of any prior election or within twelve months of the creation of a union. Elections are also barred during the first three years of any labor agreement except during a period directly before the expiration of that agreement. Elections may also be overturned and held again if the NLRB finds evidence of irregularities in the conduct of the election.
All full-time employees are eligible to vote; in some cases part-timers may vote as well. Salts, union organizers who become employees of firms in order to organize them, are usually permitted to vote. If the union wins a majority,it is now certified by the NLRB as the bargaining agent of the employees.
Collective Bargaining Agreements
The NLRB oversees the regulation of labor negotiations. Typical subjects of negotiation are wages and benefits, methods and timing of payment, pensions, safety, work rules, employee grievance procedures, seniority, and layoffs. TheNLRB classifies subjects of bargaining as mandatory, permissible, or illegal. The subjects just mentioned are classified as mandatory; this means that one side may not refuse to negotiate them if the other side wishes to do so. Refusal to negotiate a mandatory subject is an unfair labor practice. One formof "refusal to negotiate" is one party's changing the terms of employment without bargaining. This is allowed only when an agreement has expired and an impasse in negotiations has been reached. The NLRB may order a party to cease its refusal to negotiate and may order reinstatement of employees and pay adjustments as it sees fit.
Permissible subjects are those that lay outside the direct terms of the employment of the workers, such as the opening of another plant by the employer orcommunity activities by the union or the employer. Either side may refuse tonegotiate these items if it wishes to do so. Illegal subjects are those which involve activity illegal under labor law, such as the closed shop, or activities illegal under other laws;, such as age or race discrimination in hiring.
Both sides must bargain in good faith. This means that unreasonable demands may not be made, that no prior conditions to bargaining may be set, and that unresolvable issues may be shelved while less intractable problems are dealt with. Further, each side may ask the other to provide certain types of information.
The Closed Shop, the Union Shop, the Agency Shop, and the Open Shop
In a closed shop prospective employees must already be union members before they can be hired. The Taft-Hartley Act banned the closed shop--it is an illegal subject of bargaining, which unions may not bring to the negotiating table.
In a union shop new employees must join the union within thirty days or be fired. The NLRA is ambiguous regarding the union shop, with one section seemingly permitting the union shop while another seems to forbid it. Labor contracts often include union shop clauses, but both unions and employers usually actas if the contract mandates an agency shop, which is legal.
Employees in an agency shop are not required to join the union, but they mustpay union initiation fees and dues, and they can be fired if they refuse. The union is the bargaining agent for all employees in an agency shop, whetheror not they join the union, although unions may not discipline nonmembers forviolation of union rules, such as fining them for crossing a picket line andreturning to work during a strike.
Twenty-one states have right-to-work laws, which bar unions from requiring nonmembers to pay any dues at all; federal law does not prohibit such legislation by states. A union workplace in a right-to-work state is called an open shop.
Union Monies
Unions spend money raised through member dues for a variety of purposes, notall of which are directly related to bargaining, such as legislative lobbying, organizing new shops, and donations to charitable causes. These expenditures are not illegal, but the union is explicitly authorized by law to spend dues money only on collective bargaining. Members (and nonmembers in agency shops) who object to union expenditures on political activity or other activitiesnot directly related to collective bargaining are entitled to make their objection known to the union and to receive a refund of the portion of their dues spent for such purposes, on free speech grounds.
Arbitration and Mediation
Employee grievances may be subject to arbitration, depending on the specificsof the labor agreement in force. Arbitrators or panels of arbitrators will hear both sides of the dispute and come to a decision, which is usually binding on the parties. Mediators, however, enter into negotiations with the parties in order to facilitate resolution of the dispute. Two private agencies often used are the Federal Mediation and Conciliation Service and the American Arbitration Association.
Strikes
Strikes are divided into two categories: economic strikes and unfair labor practice strikes. Economic strikes are those that take place over issues such as wages and benefits. An unfair labor practice strike occurs when workers strike over an employer's unfair labor practice, particularly the refusal to negotiate. The main difference between the two types lies in the rules regardingan employer's hiring of workers to replace those who are on strike. An employer may hire replacement workers in either case, but only temporary replacements may be hired during an unfair labor practice strike; during an economic strike an employer may hire permanent replacements.
An election held during a strike is usually a decertification election, in which workers may choose to no longer be represented by the union. In such cases permanent replacement workers may vote, but temporary replacements may notvote. Any worker who has not been replaced may vote, and workers who have been permanently replaced may vote in any election for one year after the startof the strike.
A striker who abandons the strike and wants to return to work must be accepted by the employer, if the job is still there and no permanent replacement hasbeen hired. Employers may not discriminate against leaders of the strike insuch situations, but they may refuse to accept strikers who have engaged in misconduct during the strike, such as vandalism of company property or intimidation of replacement workers.
Lockouts
A lockout occurs when employees are prevented from working by the employer. When a contract has expired and the employer wants concessions on mandatory subjects of bargaining from the union, he may legally lock them out. Lockouts for the intimidation of workers, such as before a union election, are illegal,as are lockouts over permissible subjects of bargaining.
Child Labor
The perception of child labor as a social evil to be eradicated began with industrialization and wage labor. In earlier times children had always worked,and for them to do so was regarded not as a necessary evil but as a positivegood. Religious proscriptions against idleness and the acquisition of work skills weighed heavily in favor of child labor. Children who worked also did not become dependent on public welfare. Work in the preindustrial age, however,did not put children into a hazardous, impersonal environment. Children typically worked as apprentices in tradesmen's shops and in the homes and on thefarms of their families. Apprentice work usually included some rudimentary general education as well as specific occupational training; children who worked on family farms were not separated from their parents, and they performed jobs assigned with their youth taken into account.
As organized manufacturing came into being, it was natural for factory ownersto use children as laborers. In 1790 the workforce at Samuel Slater's firstmill in Rhode Island consisted mostly of children ages seven to 12. Soon large numbers of children worked in factories under harsh conditions in unhealthy, dangerous environments. In most cases their parents needed their children'scontribution to family income, so there was little resistance to the factorychild labor system.
Opposition slowly grew to child labor as its deleterious effects spread through the population. Many children grew up malformed from constant physical labor, became sick, or died in accidents. A further impetus to opposing child labor was the growing recognition of the need for education; as various impediments to suffrage grew, literacy as a requisite for citizenship became apparent. Slowly, states began to enact child labor laws, setting minimum age requirements for work. Standards were not strict, however; for example, in the 1850s minimum work ages were ten in New Jersey, twelve in Rhode Island, and ninein Connecticut. Children often fared worse in the South, where children as young as six and seven worked in textile mills.
By 1913 most states required a minimum age of 14 for factory work, but agricultural and domestic work was not regulated. Further, the laws that did existwere poorly enforced. Additionally, competition from firms in other less-regulated states kept pressure on employers to keep costs down.
The Struggle for Federal Child Labor Legislation
While state laws remained lax, poorly enforced, and in some cases nonexistent, action on a federal level did not really begin until the twentieth century.A group of social reformers created the National Child Labor Committee in 1904, which was instrumental in pressing for national child labor regulation.
The first Congressional bill to regulate child labor was introduced in 1906 by Sen. Albert J. Beveridge of Indiana, but the bill did not pass. After the release of a Congressional study of child labor in 1912, the Federal Children's Bureau was created as a fact-gathering agency and clearinghouse for information on child labor. Although the agency had no power to regulate, its investigations into labor conditions nationwide aided reformers greatly by providing them with information they would otherwise have had to gather themselves, thus freeing more of their time for political efforts.
Reformers were elated two years later when Congress passed the Keating- OwenFederal Child Labor Act. The act established a minimum working age of 14 andregulated hours of work for children from 14 to 16 years old in certain establishments, including mines, factories, and mills, and banned the interstate shipment of goods produced in violation of these standards.
Backed by the Executive Committee of Southern Cotton Manufacturers, Roland Dagenhart, father of two children who worked in a North Carolina cotton mill contested the validity of the law. In 1918 the case went to the Supreme Court,which struck down the act as an unconstitutional regulation of matters purelylocal (Hammer v. Dagenhart.)
In February 1919, less than a year later, Congress enacted the same standardscodified by Keating-Owen in a revenue bill. This time, violation of the lawsubjected producers to a 10 percent tax on their net profits. The Supreme Court struck down the law in Bailey v. Drexel Furniture Co. The case before us cannot be distinguished from that of Hammer v. Dagenhart.
Child labor opponents now decided that a constitutional amendment would be necessary to effect national regulations that could not be invalidated by the Court. In 1924 Congress adopted a proposal for a constitutional amendment thatwould not by itself regulate child labor but would enable Congress to do solegally. The amendment was vigorously opposed by the National Association ofManufacturers, the Southern Textiles Association, and other industry groups:according to its opponents, the subversive amendment was favored by Bolshevists and Communists. Catholic groups such as the National Council of Catholic Women worked with the National Child Labor Committee in support of the bill, but much of the Catholic hierarchy, particularly in Massachusetts and New York, opposed the bill as a possible threat to parochial education and the authority of parents.
After each attempt to eradicate child labor failed, conditions grew worse. Finally the onset of the Great Depression began to change people's thinking: Why worry about employers, rights to hire children when one out of four adultswas without a job? By 1932 only six states had ratified the amendment, but in1933 alone fourteen more endorsed it.
The next legislation affecting child labor was the National Industrial Recovery Act of 1933, the purpose of which was to coordinate business practices inorder to deal with the worsening depression generally, rather than to solve the child labor problem alone. It prescribed codes for fair competition and fixed wages and hours, and also established minimum age rules. In 1935 the actwas declared unconstitutional in A.L.A. Schecter Poultry Corporation v. United States.
Congress passed two laws that were not invalidated by the Court, since they dealt expressly with federal action. The Jones-Costigan Act of 1934 regulatedchild labor on farms receiving federal assistance, and the Walsh- Healey Public Contracts Act of 1936 forbade boys under 16 and girls under 18 from employment in work under federal contracts worth more than $10,000.
Twenty-eight states had ratified the child-labor amendment by 1938, but it became largely moot and action on it lapsed when Congress passed the Fair LaborStandards Act. Perhaps convinced it was necessary to change its view in light of Roosevelt's 1937 attempt to add six more justices to the Supreme Court in order to create a Court more amenable to the New Deal and by widespread social upheaval, including the increasing popularity of socialism as a cure forthe country's troubles, the Court performed its famous switch in time that saved nine and began supporting Roosevelt's New Deal programs. Three years later the Court upheld the legality of the act in United States v. Darby.
The Fair Labor Standards Act (FSLA) covered all firms producing goods for interstate commerce. It established minimum wages, maximum hours, and overtime pay for covered employees. It established age requirements for children, particularly for hazardous jobs. The act was later strengthened in 1949 to ban oppressive child labor in interstate commerce, and coverage was broadened to include all firms engaged in interstate commerce, not merely those producing goods for interstate commerce, which brought more industries under the act. TheFair Labor Standards Act remains the primary law regulating child labor today.
Regulation of Child Labor Today
Today all states have child labor laws, but when both the FSLA and state lawapply, the more restrictive rule must be followed. Federal child labor law isenforced by the U.S. Department of Labor.
Nonfarm jobs
Children from 16 to 17 years old may work in any non-hazardous job; there isno limitation on the number of hours they may work. Jobs classified as hazardous include work with explosives or radioactive materials, work using varioustypes of machinery, and operation of motor vehicles. Most jobs in certain industries such as logging and meat packing are also deemed hazardous.
Children aged 14 to 15 may work in certain nonhazardous jobs, but limitationsare more stringent than for 16- and 17-year-old youth; e.g., they may not work in construction jobs. The hours they may work are regulated during the school year to no more than three hours on a school day and no more than 18 hours during a school week; when school is not in session they may work up to 40hours per week. They may not work before 7:00 a.m. or after 7:00 p.m. duringmost of the year; the evening limit is extended to 9:00 p.m. from June 1 to Labor Day.
Children younger than 14 may work only in businesses owned by their parents (with hazardous jobs not permitted) and certain exempt jobs such as acting anddelivery of newspapers.
Farm Jobs
Farm labor is considerably less restricted. Children of any age may perform any job without restriction on farms owned or operated by their parents. Youths age 16 or older may work in any farm job without limitation on hours or type of job. Youths age 14 and 15 may work in non-hazardous jobs outside of school hours. Farm jobs classified as hazardous include handling explosives or pesticides, working on ladders or scaffolding more than 20 feet high, and operating most farm machinery, such as harvesting and earth-moving machinery.
Children 12 and 13 years old may work outside school hours in non-hazardous jobs, provided they have parental consent. Children younger than twelve may not work on farms covered by the FSLA's minimum wage provisions. With parentalconsent they may work in non-hazardous jobs on other farms. Children aged 10and 11 may work harvesting crops for up to eight weeks between June 1 and October 15; their employers must obtain special exemption from the Department ofLabor for this.
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