United States Labor Law - Regulation of Unions and Organizing

Regulation of Unions and Organizing

Contrary to popular intent, the Sherman Antitrust Act (1890) led to prosecution of unions as illegal combinations, but Section 6 of the Clayton Antitrust Act (1914) ended this practice by stipulating that unions shall not be "construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws."

The National Labor Relations Act (NLRA, the "Wagner Act") gives private sector workers the right to choose whether they wish to be represented by a union and establishes the National Labor Relations Board (NLRB) to hold elections for that purpose. As originally enacted in 1935, the NLRA makes it illegal for employers to discriminate against workers because of their union membership or retaliate against them for engaging in organizing campaigns or other "concerted activities", to form "company unions", or to refuse to engage in collective bargaining with the union that represents their employees.

The Taft-Hartley Act (also the "Labor-Management Relations Act"), passed in 1947, loosened some of the restrictions on employers, changed NLRB election procedures, and added a number of new limitations on unions. The Act, among other things, prohibits jurisdictional strikes and secondary boycotts by unions, and authorizes individual states to pass "right-to-work laws", regulates pension and other benefit plans established by unions and provides that federal courts have jurisdiction to enforce collective bargaining agreements.

The United States Congress subsequently tightened those restrictions on unions in the Labor Management Reporting and Disclosure Act of 1959, which also regulates the internal affairs of all private sector unions, providing for minimum standards for unions' internal disciplinary proceedings, federal oversight for unions' elections of their own officers, and fiduciary standards for union officers' use of union funds. Congress has since expanded the NLRB's jurisdiction to health care institutions, with unique rules governing organizing and strikes against those employers.

The NLRA does not, on the other hand, cover governmental employees, with the exception of employees of the United States Postal Service, a quasi-public entity. The Federal Labor Relations Act provides for much more limited rights for employees of the federal government; Congress has, moreover, excluded a number of these workers in the United States Department of Homeland Security and elsewhere from even these limited protections.

Federal law does not provide employees of state and local governments with the right to organize or engage in union activities, except to the extent that the United States Constitution protects their rights to freedom of speech and freedom of association. The Constitution provides even less protection for governmental employees' right to engage in collective bargaining: while it bars public employers from retaliating against employees for forming a union, it does not require those employers to recognize that union, much less bargain with it.

Most states provide public employees with limited statutory protections; a few permit public employees to strike in support of their demands in some circumstances. Some states, however, particularly in the South, make it illegal for a governmental entity to enter into a collective bargaining agreement with a union.

The NLRA does not cover agricultural or domestic employees. A few states have enacted labor laws similar to the NLRA covering farm workers.

Finally, the NLRA does not cover employees in the railroad and airline industries. Those workers are covered by the Railway Labor Act, first passed in 1926, then amended in 1936 to cover airline employees. The RLA creates a wholly different structure for resolving labor disputes, requiring bargaining under indirect governmental supervision and permitting strikes only in limited circumstances.

The Norris-LaGuardia Act of 1932 outlawed the issuance of injunctions in labor disputes by federal courts. While the Act does not prevent state courts from issuing injunctions, it ended what some observers called "government by injunction", in which the federal courts used injunctions to prevent unions from striking, organizing and, in some cases, even talking to workers or entering certain parts of a state. Roughly half the states have enacted their own version of the Norris-LaGuardia Act.

For the most part the NLRA and RLA displace state laws that attempt to regulate the right to organize, to strike and to engage in collective bargaining. The NLRB has exclusive jurisdiction to determine whether an employer has engaged in an unfair labor practice and to decide what remedies should be provided. States and local governments can, on the other hand, impose requirements when acting as market participants, such as requiring that all contractors sign a project labor agreement to avoid strikes when building a public works project, that they could not if they were attempting to regulate those employers' labor relations directly.

• NLRB v. Mackay Radio & Telegraph Co. 304 U.S. 333 (1938), that striking workers remain "employees"
• United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948), holding that unions advocating members vote for particular Congress candidates did not violate the Federal Corrupt Practices Act as amended by the Labor Management Relations Act