Europe in need of a New Deal: on federalism, free market, and the right to strike.

Author:Fabbrini, Federico
Position:IV. The Right to Strike in the U.S. Federal Experience C. The Right to Strike During the New Deal through VII. Conclusion, with footnotes, p. 1217-1258
 
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  1. The Right to Strike During the New Deal

    By the mid-1930s, however, the Lochner-era doctrines were no longer tenable. (242) Although the U.S. Congress had already intervened during the early decades of the twentieth century in the regulation of labor relations in interstate industries, (243) the Great Depression had highlighted a need for much broader federal intervention in the economy. Pushed into power by a sweeping electoral victory, Franklin D. Roosevelt and his administration began a New Deal for the United States, enacting major pieces of social legislation. (244) According to the Administration, the resolution of the tensions between management and labor was a key ingredient for economic stabilization, and to this end, the legal rights of the unions had to be strengthened in order to ensure a workable system of collective bargaining. (245) In 1932, Congress enacted the Norris-La Guardia Act, (246) "which eliminated federal court jurisdiction to enforce yellow dog contracts (agreements not to join a union)," (247) and in 1933, Congress passed the National Industrial Recovery Act (NIRA), (248) which protected unions' rights to conclude collective agreements. In Schechter Poultry Corp. v. United States, (249) however, the Supreme Court invalidated the NIRA as an unconstitutional exercise of federal power, precipitating one of the most severe constitutional crises in U.S. history. As is well known, President Roosevelt threatened to change the composition of the Supreme Court through a "court-packing plan" (250) and, in response, Congress enacted a new statute, the National Labor Relations Act (NLRA, also known as the Wagner Act) (251) which largely resembled the NIRA. Eventually, in 1937 the Supreme Court made what is popularly called the "switch in time" and upheld the constitutionality, of the NLRA, (252) definitively sanctioning the constitutionality of the New Deal legislation. (253)

    The NLIRA--also called the Wagner Act after its sponsor, Senator Robert Wagner--recognized a federal right for employees to organize trade unions and to engage in industrial action and prohibited employers from taking anti-union activities. As clarified in its opening provision, the NLRA found its legal basis in the Commerce Clause of the U.S. Constitution and was inspired by the goal of "promoting the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees." (254) Section 7(a) of the Act provided that "[e]mployees 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." (255) Moreover, Section 13 affirmed that "[n]othing in this subchapter, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike." (256) Finally, the NLRA set up a National Labor Relations Board (NLRB) (257) empowered to act as a mediator in industrial disputes, to investigate unfair labor practices, and to certify, representative unions for the purpose of collective bargaining in interstate industries.

    As an exercise of Congress' power to regulate interstate commerce, the NLRA only applied to private firms operating in the nationwide market and excluded many employers and workers from coverage, including government employers, agricultural laborers, and domestic workers. (258) In the years immediately following the NLRA's enactment, however, many states adopted state labor relations acts. State laws were often modeled after the NLRA and extended the protection of the rights of labor organizations to intra-state industries. (259) Nevertheless, a number of states passed legislation that "place[d] restrictions on unions and on employees as well as on employers." (260) For almost two decades after the NLRA's enactment, the field of industrial relations was understood as a policy area under concurrent control by the federal government and the states. (261) Despite the "trend toward national integration," (262) state law co-existed with the national legislation and continued to regulate important features of labor-management relations, including strikes. (263) Over time, however, the application of state law different from federal law created "some kind of inconsistency" (264) and in the 1959 case of Building Trade Council v. Garmon, (265) the Supreme Court "held that Congress impliedly intended to exclusively occupy the field of collective labor relations and therefore the states [were] preempted from enacting laws attempting to regulate conduct which is 'actually or arguably protected or prohibited' by the NLRA." (266)

  2. The Right to Strike After the New Deal

    The recognition of field pre-emption by federal law over state law in the area of industrial relations produced important consequences for the protection of the right to strike. This principle neatly separated the regulation of strikes for workers covered by the NLRA, falling under the exclusive purview of federal law, from the regulation of strikes for workers not covered by the NLRA, which was left to the states. In addition, it excluded that in the field of federal lave, state law could go beyond the federal minimum, de facto transforming the NLRA into both a floor and a ceiling for the protection of the right to strike at the federal level. In the mid-long run, this arrangement did not prove positive for the protection of labor rights in the United States. As has been argued, "[d]espite the crucial importance of the right to strike to the structure of the NLRA, over the sixty-plus years of the Act's existence it has been steadily undercut by congressional amendments and judicial decisions." (267) In 1947, Congress enacted the Labor-Management Relations Act (Taft-Hartley Act), (268) which limited the powers of the labor unions by prohibiting secondary boycotts and making it an unfair labor practice for unions to restrain or coerce employees in the exercise of their individual rights to self-organization. (269) Then, in 1959, Congress enacted the Labor-Management Reporting and Disclosure Act (Landrum-Griffin Act), (270) which amended the NLRA to "further limit[] the right to strike." (271)

    The most significant restrictions to the protection of the right to strike, however, came from the case law of the Supreme Court. As James Gray Pope has explained, five decisions were especially fatal for the protection of U.S. workers' right to strike. (272) In the 1938 case of NLRB v. Mackay Radio & Telegraph Co., (273) the Supreme Court ruled that employers enjoyed the right to permanently replace strikers. In Consolidated Edison Co. v. NLRB, (274) the Court stated that the NLRB had no power to deter unfair labor practice and could only remedy harms in proceedings brought before it by private parties. In NLRB v. Fansteel Metallurgical, (275) the Supreme Court held that workers did not have a right of self-defense against employers who committed unfair labor practice. Then, in 1965, in Textile Workers Union v. Darlington, (276) the Supreme Court ruled that management could lawfully close operating a factory in retaliation against workers who choose to unionize. Finally, in Lechmere, Inc. v. NLRB, (277) the Court affirmed that employers could enforce trespass against union organizers, stopping them from accessing their property. By elevating "the state common-law rights of employers over the federal statutory rights of workers" (278) these decisions confirm that, although

    U.S. labor law since the New Deal has undeniably empowered U.S. workers by guaranteeing them the right to strike[,] ... the manner in which the law has been interpreted and applied has constrained that right and the power it implies ... regulating workers' collective action in ways designed to protect the continuity of production. (279) The protection of the right to strike within the various states--for employees not covered by the federal NLRA--reveals a more diverse picture. Because the federal courts never accepted the idea that the U.S. Constitution included a minimum level of protection for the right to strike (280) with which states were bound to comply, (281) the several states have remained free to enact diverse regulations. The core focus of state legislations has been the regulation of the right to strike for public employees. (282) A majority of states passed legislation that "forbid[s] government employees to strike. In most states whose statutes are silent on the subject, the courts have ruled that strikes by government employees are illegal." (283) At the same time, some states legalized strikes for public employees. In 1985, for instance, in County Sanitation District v. Los Angeles County Employee Association, (284) the Supreme Court of California "overturned the state's common law ban on public employees strike[s]" (285) as incompatible with the state constitution. The recent events that occurred in the state of Ohio--where a contentious total ban on strikes by public employees was passed by the state legislature in March 2011 (286) and repealed by a popular referendum in November 2011 (287)--make it clear that major controversies still surround the regulation of the right to strike for public employees in many U.S. states.

    In conclusion, the U.S. experience in the protection of the right to strike reveals an evolving pattern. The regulation of industrial action originally fell under the general welfare powers of the states. For the first three decades of the twentieth century, however, the free market jurisprudence of the federal courts...

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