The Wagner Act , also known as the National Labor Relations Act, was passed in 1935 during the Great Depression. It was designed to protect employees’ rights to form and join unions and to engage in activities such as strikes, picketing, and collective bargaining. The Wagner Act created the National Labor Relations Board (NLRB) , an independent federal agency charged with administering U.S. labor law.

The NLRB’s primary functions are (1) to administer certification elections, secret ballot elections that determine whether employees want to be represented by a union, and (2) to prevent and remedy unlawful acts called unfair labor practices. The NLRB remedies an unfair labor practice by issuing a cease and desist order, which requires the guilty party to stop engaging in the unlawful labor practice. The Wagner Act identified five illegal labor practices that can be remedied by the National Labor Relations Board:

1. Interfering with, restraining, or coercing employees to keep them from exercising their rights to form unions, bargain collectively, or engage in concerted activities for mutual protection.

2. Dominating or interfering with the formation or administration of a union or providing financial support for it.

3. Discriminating against an employee to discourage union membership. Discrimination can include not hiring a union supporter, or firing, not promoting, or denying a pay raise to an employee who is a union member or who favors union representation.

4. Discharging or otherwise discriminating against an employee who has filed charges or given testimony under the act’s provisions.

5. Refusing to bargain collectively with the union that employees chose to represent them.

The NLRB sometimes has difficulty enforcing its unfair labor practice rules because large corporations often use sophisticated tactics to avoid unions, as described in the Manager’s Notebook, “Wal-Mart’s Union-Avoidance Tactics.”

MANAGER’S NOTEBOOK Wal-Mart’s Union-Avoidance Tactics

Ethics/Social Responsibility

In the summer of 2000, Wal-Mart’s Kingman, Arizona, Tire and Lube Express (TLE) employees contacted the United Food and Commercial Workers seeking union representation. The union filed a representation petition on August 28, and two days later a labor relations team from Wal-Mart’s corporate headquarters arrived at the store. During the union-organizing campaign, members of the labor relations team did a number of things, including threatening to postpone merit pay increases for the TLE employees during any contract negotiations, engaging in surveillance of employees’ union activities, granting benefits and improved working conditions to discourage employees from supporting the union, discriminatorily and disparately applying and enforcing its no-harassment policies to the detriment of employees who supported the union, and discharging and denying COBRA health benefit continuation coverage to employees for supporting the union.

The union filed charges of unfair labor practices with the National Labor Relations Board (NLRB) against Wal-Mart in 2000 due to the unfair way the company treated its employees who favored the union. The NLRB issued its final decision and remedial order nearly 8 years later in June 2008. What took so long? Wal-Mart’s legal staff used delay tactics in complying with the law and then appealed the decision to a federal court. By the time Wal-Mart exhausted its appeals on every claim made by the union and eight years had passed, few of the original TLE employees who supported the union remained at the store. In the future, it should not be difficult for Wal-Mart to claim that a majority of employees no longer want a union and to encourage its employees to petition the NLRB to conduct an election to decertify the union.

Sources:Based on Hyman, J. (2008, July 10). A lesson in union avoidance. www.ohioemploymentlaw.blogspot.com/2008/07/lesson-in-union-avoidance.html; Wal-Mart Stores Inc., 352 NLRB No. 103 (2008); Kucera, B. (2008, October 26). Wal-Mart has perfected the art of union-busting, researcher says. Workday Minnesota. www.truth-out.org ; Brooks, M. (2010, July 1). What else you should know about Walmart. Chicago Reader. www.chicagoreader.com .▪▪

The Taft-Hartley Act , enacted in 1947 shortly after the end of World War II, was designed to limit some of the power that unions acquired under the Wagner Act and to protect the rights of management and employees. Although the Taft-Hartley Act was basically favorable to management’s interests, its goals were to adjust the regulation of labor–management relations to ensure a level playing field for both parties.

Taft-Hartley included remedies from the National Labor Relations Board for six unfair union labor practices:

1. Restraining or coercing employees in the exercise of their rights guaranteed under the act, and/or coercing an employer’s choice of a representative in collective bargaining.

2. Causing or attempting to cause an employer to discriminate against an employee who is not a member of a labor union for any reason other than failure to pay the union dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the union.

3. Refusing to bargain in good faith with an employer after a majority of the employees in a unit have elected the union as their representative.

4. Asking or requiring its members to boycott products made by a firm engaged in a labor dispute with another union (secondary boycott). However, a union can call a boycott of products produced by its own firm (primary boycott).

5. Charging employees excessive or discriminatory union dues as a condition of membership in a union under a union shop clause. (A union shop clause requires employees to join the union 30 to 60 days after their date of hire.)

6. Causing an employer to pay for services that are not performed. This practice, often called featherbedding, is technically illegal, but the definition of unnecessary or unperformed work is often murky. For example, railroad unions continued to require the presence of firemen on engines long after their main duty (taking care of the fire on a steam engine) was eliminated by the advent of diesel engines.

Twelve years later, the Landrum-Griffin Act added a seventh unfair union labor practice: It is illegal for a union to picket an employer for the purpose of union recognition (a practice known as recognitional picketing).

Perhaps the most controversial provision of the Taft-Hartley Act is Section 14b, which gives permission to the states to enact right-to-work laws. A right-to-work law makes it illegal within a state for a union to include a union shop clause in its contract. Unions negotiate union shop clauses into their contracts to provide greater security to union employees and prevent nonunion employees from receiving union services without paying union dues. A less-restrictive arrangement called the agency shop clause requires employees to pay a union service fee (about equal to union dues) but does not require them to join the union. Currently, 24 states have right-to-work laws, which make it more difficult to organize and sustain unions in those states.8 While many of these states are located in the southern or western United States, away from major industrial centers, in 2012 the midwestern industrial states of Indiana and Michigan approved legislation to become right-to-work states.

Several other provisions of Taft-Hartley are noteworthy. First, the act made closed shops, which require an employee to be a union member as a condition of being hired, illegal. This provision was modified 12 years later by the Landrum-Griffin Act to allow a closed shop in the construction industry as the only exception. Second, Taft-Hartley allowed employees to get rid of a union they no longer want through a decertification election and charged the NLRB with regulating decertification elections. Finally, Taft-Hartley created a new agency, the Federal Mediation and Conciliation Service, to help mediate labor disputes so that economic disruptions due to strikes and other labor disturbances would be fewer and shorter.

The Landrum-Griffin Act was enacted in 1959 to protect union members and their participation in union affairs. It allows the government, through the Department of Labor, to regulate union activities. The Landrum-Griffin Act includes the following key provisions:

1. Each union must have a bill of rights for union members to ensure minimum standards of internal union democracy.

2. Each union must adopt a constitution and provide copies of it to the Department of Labor.

3. Each union must report its financial activities and the financial interests of its leaders to the Department of Labor.

4. Union elections are regulated by the government, and union members have the right to participate in secret ballot elections.

5. Union leaders have a fiduciary responsibility to use union money and property for the benefit of the membership and not for their own personal gain. Members can sue and recover damages from union leaders who fail to exercise their fiduciary responsibilities.

Other laws that affect labor relations include the Railway Labor Act (1926, last amended in 1970), the Norris-LaGuardia Act (1932), and the Byrnes Antistrikebreaking Act (1938). Of course, the equal employment opportunity laws discussed in Chapter 3 also apply to unionized workers. Most noteworthy of these other labor laws is the Railway Labor Act , which regulates labor relations in the transportation industry. This law covers the railway, airline, and trucking industries that are critical to sustain commerce. It provides dispute settlement procedures if the parties are unable to achieve a labor agreement. The Railway Labor Act has provisions for congressional and presidential intervention in a labor dispute that could be disruptive to interstate commerce. For example, the President intervened in a labor dispute in the airline industry when one of the major airlines forced the union to go on strike because of a breakdown in negotiations.9

Although much of U.S. labor relations law is more than five decades old, it would be a mistake to assume that nothing new is happening in this area. More recently, the National Labor Relations Board was considering new rules that would reduce the time required to schedule a union election, which would make it more difficult for management to organize a campaign to defeat the union.10 In addition, Congress has considered an amendment to the Wagner Act that would eliminate an employer’s right to use permanent replacements during an economic strike or work stoppage.11 In Canada, several provinces have recently enacted laws that restrict employers from using replacement workers during strikes.12 Clearly, the struggle to find the correct balance of employer, union, and employee rights is ongoing.

We now turn to a description of the current state of labor relations in the United States.