The National Labor Relations Act has been criticized as an outdated piece of leg

Question

The National Labor Relations Act has been criticized as an outdated piece of legislation that is hindering, rather then helping, American cope with the realities of the new global marketplace. Describe how works has changed since the NLRB was passed and discuss how these changes might conflict with the protections provided in the NLRB.

How is conflict conceptualized differently under the unitary and pluralistic view of conflict in society?

Explain how the Great Upring of 1877 laid the foundation for the future labor-management relations.

Explanation / Answer

The typical American employee in the 1950s was a white male with an education that did not exceed that of a high school degree.7 Women comprised only one out of three members of the civilian labor force at this time.8 Minorities made up only ten percent of the workforce.9

Most employees at the mid-point of the twentieth century worked in blue-collar jobs. Typical occupations included manufacturing, mining, construction, and unskilled labor positions.10 Employees working in the service sector accounted for only twelve percent of the total [*PG354]workforce.11 Professional employees made up another eighteen percent of the workforce.12

The American workplace of 1950 was subject to very little government regulation. Absent union representation, employers were free to hire and fire employees at their sole discretion. Employers were free to set terms and conditions of employment subject only to the minimum standards imposed by the Fair Labor Standards Act (FLSA).13 The FLSA, enacted in 1938, required (and still requires) employers to pay covered employees the equivalent of the mandated minimum hourly wage plus overtime compensation at one and one-half times the regular rate of pay for time worked in excess of forty hours per week. In 1950, the minimum wage was pegged at seventy-five cents per hour.14

This lack of legal regulation is vividly illustrated by one of the most significant workforce transitions in recent history: the return of the armed forces following the conclusion of the Second World War. During the war, the Armed Forces increased from 800,000 men in December 1940 to nine million in June 1943 and 12.3 million in June 1945.15 The increased draw on the male workforce created a shortage in the civilian workforce which was to a great extent alleviated by an influx of women into the workforce.16 This change proved to be only temporary as United States%u2019 employers replaced female employees [*PG355]with returning male G.I.s after the war.17 Some of these replacements were voluntary;18 some, however, were not.19

Employer preference for male workers in 1950 was perfectly lawful. Civil Rights statutes prohibiting the discriminatory treatment of women and minorities in employment did not yet exist.20 The relative skills and abilities of the displaced workers were legally irrelevant. Simply put, the existence or nonexistence of the employment relationship was almost entirely a matter of employer discretion, not government regulation.

The principal exception to this laissez-faire approach was in the arena of labor-management relations. The National Labor Relations Act (NLRA), adopted in 1935, obligated employers to negotiate with the freely-selected union representatives of their employees.21

Thus, in 1950, the workforce and the relatively barren landscape of employment regulation could be divided into two main sectors. The largest was the at-will sector in which employers possessed the legal authority to determine unilaterally the existence and terms of the employment relationship. Smaller, yet still quite significant, was the unionized sector in which employers and unions bilaterally set terms and conditions of employment.

In 1950, %u201Cemployment law%u201D did not exist as an area of legal practice or study. The controlling law of the workplace at that time was either labor law or the at-will regime, which was no law at all. More[*PG356]than two-thirds of American employees in 1950 fell into the latter, regulation-free category.

The at-will rule, which provides the theoretical foundation for this sector, is generally traced22 to treatise writer Horace Gray Wood, who wrote the following in 1877:

With us the rule is inflexible, that a general or indefinite hiring is prima facie a hiring-at-will, and if the servant seeks to make out a yearly hiring, the burden is upon him to establish it by proof. . . . [I]t is an indefinite hiring and is determinable at the will of either party.23

Although the accuracy of Wood%u2019s description of the law is questionable,24 %u201CWood%u2019s rule%u201D quickly became the law throughout the United States.25 Only a few years later, for example, the Tennessee Supreme Court articulated its classic formulation of the rule: %u201CAll may dismiss their employees at will, be they many or few, for good cause, for no cause or even for a cause morally wrong, without being thereby guilty of legal wrong.%u201D26

The employment-at-will doctrine is premised on a theoretical equality of rights where both employer and employee have the right to terminate the employment relationship at any time and for any reason. This theoretical equality was consistent with prevailing late nineteenth century notions of freedom of contract and unfettered entrepreneurship.27 As a doctrine grounded in market rather than[*PG357]legal forces, the at-will rule has been defended on the grounds that it promotes overall economic efficiency with a minimum of administrative costs.28

Thus, two significant attributes characterized the legal framework governing the at-will sector in 1950. First, employers possessed virtually unfettered discretion over both the existence and terms of the employment relationship. Second, beyond the basic at-will principle itself, this sector was essentially free of any governmental regulation.

Union members accounted for 31.5% of the American nonagricultural workforce in 1950.29 Although this figure is far lower than in many European countries, it is not far below the all-time U.S. high of 35% recorded in 1954.30 Indeed, the union movement was so strong during this period that Congress, by adopting the Taft-Hartley Act in 1947, significantly amended the NLRA in order to curb what was perceived to be excessive union power.31

The vast majority of unionized employees32 are subject to two sources of legal regulation. One source, in the form of a federal statute, is the NLRA. The other is in the form of contractual rules flowing from privately-negotiated collective bargaining agreements.

Broadly speaking, the NLRA protects three types of employee conduct. First, the NLRA, at least in the private sector,33 protects the [*PG358]right of employees to engage in organizational activities.34 The NLRA specifically prohibits an employer from interfering with an employee%u2019s right to join a union or to engage in activities that urge fellow employees to join a union.35 Accordingly, an employer commits an unlawful labor practice by such acts as discharging an employee organizer36 or making threats of reprisal for union support.37

A second right conferred by the NLRA is the right of employees to bargain collectively through their selected union representative.38 Mandatory subjects of bargaining include %u201Cwages, hours, and other terms and conditions of employment,%u201D39 but not matters that go to the core of an employer%u2019s entrepreneurial control,40 such as plant closings41 and product advertising.42 The NLRA obligates both parties to negotiate in %u201Cgood faith%u201D43 with a present intention to find a basis for agreement,44 although %u201Csuch obligation does not compel either party to agree to a proposal or require the making of a concession.%u201D45

Finally, the NLRA protects the right of employees to engage in %u201Cconcerted activity . . . for mutual aid or protection.%u201D46 This includes a [*PG359]ban on an employer%u2019s ability to discharge47 or otherwise retaliate48 against an employee who participates in a lawful strike. In reality, most collective bargaining agreements waive the union%u2019s right to strike during the contract term in favor of a grievance arbitration mechanism for dispute resolution.49

Collective rights arising under the NLRA are enforced through administrative procedures. The NLRA prohibits various %u201Cunfair labor practices%u201D committed either by employers50 or labor unions.51 The NLRA established as its administrative enforcement mechanism a National Labor Relations Board (NLRB) with two distinct functions. One branch of the NLRB, under the direction of the NLRB%u2019s General Counsel, investigates and prosecutes unfair labor practice proceedings on behalf of complaining unions, employees, or employers.52 Independently, the NLRB, as a five-member, quasi-judicial body, reviews the unfair labor practice decisions of administrative law judges.53

Collective bargaining agreements, negotiated pursuant to the NLRA, may also create enforceable rights. For example, the vast majority of such agreements provide for a %u201Cjust cause%u201D limitation on employee discipline and discharge.54 Most contracts also establish a grievance procedure culminating in binding arbitration to resolve contract interpretation and application disputes.55 Taken together,[*PG360]this means that employers may discharge employees covered by union contracts only upon convincing a neutral arbitrator that just cause exists to support the termination decision.56 If an employer fails to carry this burden, an arbitrator typically issues a %u201Cmake whole%u201D remedy consisting of an order for reinstatement and back pay.57 These arbitration decisions are subject to very limited judicial review.58

Accordingly, the unionized sector was and remains characterized by four important attributes. First, while the unionized sector was subject to greater governmental regulation than the at-will sector, this regulation still has largely been only indirect and procedural in nature. The NLRA, itself, has never mandated any substantive terms of the employment relationship.59 The Act, instead, regulates only the process of collective bargaining, leaving the substance to private ordering by the effected parties. This, in turn, leads to a second attribute of the unionized sector%u2014management and labor bilaterally establish terms and conditions of employment through the collective bargaining process. Those employees who are represented by a union representative have a collective voice in the governing of their work life. Third, most employees in the unionized sector are subject to discharge only upon an employer%u2019s showing that it had %u201Cjust cause%u201D to do so.60 Finally, unions can enforce this job security standard in a relatively expeditious and inexpensive arbitration forum.61

Much has changed in the world of labor and employment law in the past 50 years. Both unions and the at-will rule have declined in relative importance. But while down, neither is yet out. The unionized sector continues as a unique subset of the workplace regulatory struc[*PG361]ture, though clearly reduced in size. And, while the at-will rule no longer defines the entire legal relationship applicable to most employees, it still serves as the default presumption outside of the unionized sector.

Governmental regulation, meanwhile, has grown apace. The American workplace has evolved from a largely unregulated arena to one subject to regulation from a myriad of sources%u2014federal and state, legislative and judicial. Employers, correspondingly, attempt to ease the weight of these regulations. American firms increasingly have turned to non-employee, or contingent, work arrangements as a means of avoiding employee-orientated regulation. The explosion of the contingent workforce is, indeed, a third major phenomenon of working life at the turn of the millennium.

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