The National Labor Relations Act and Other Progressive Misdeeds

"To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical."   -Thomas Jefferson

It’s very embarrassing to be a Tea Partier and yet have such a Liberal luminary skeleton hanging in one’s closet.  But there it is, as the English say – Sen. Robert Ferdinand Wagner, author of the National Labor Relations Act, was my grandfather’s half-cousin.  Pretty scary, huh?  I could hang him outside my door for Halloween.

Wagner was elected as a Democrat to the United States Senate in 1926, and reelected in 1932, 1938 and 1944. He resigned on June 28, 1949, due to ill health (congestive heart failure, like his aunt, my great-grandmother). He was unable to attend any sessions of the 80th or 81st Congress from 1947 to 1949 because of a heart ailment (see?). Wagner was Chairman of the Committee on Patents in the 73rd Congress, of the Committee on Public Lands and Surveys in the 73rd and 74th Congresses, and of the Committee on Banking and Currency in the 75th through 79th Congresses. He was a delegate to the United Nations Monetary and Financial Conference in Bretton Woods, New Hampshire in 1944.

Wagner, who had known the future President when they were in the New York state legislature together, was a member of  Franklin Delano Roosevelt's Brain Trust. He was very involved in labor issues, fought for legal protection and rights for workers, and was a leader in crafting the New Deal.

His most important legislative achievements include the National Industrial Recovery Act in 1933 and the Wagner-Steagall Housing Act‎ of 1937. After the Supreme Court ruled the National Industrial Recovery Act and the National Recovery Administration unconstitutional, Wagner helped pass the National Labor Relations Act (also known as the Wagner Act) in 1935, a similar but much more expansive bill. The National Labor Relations Act, perhaps his greatest achievement, was a seminal event in the history of organized labor in the United States. It created the National Labor Relations Board, which mediated disputes between unions and corporations, and greatly expanded the rights of workers by banning many “unfair labor practices” and guaranteeing all workers the right to form a union. He also introduced the Railway Pension Law, and cosponsored the Wagner-O'Day Act, the predecessor to the Javits-Wagner-O'Day Act.

Wagner was instrumental in writing the Social Security Act, and originally introduced it in the United States Senate.  (There are photos of him looking on gleefully as Roosevelt signs it.)  The Wagner-Hatfield amendment to the Communications Act of 1934, aimed at turning over twenty-five percent of all radio channels to non-profit radio broadcasters, did not pass. He also co-sponsored with Rep. Edith Rogers (R-Mass.) the Wagner-Rogers Bill to admit 20,000 Jewish refugees under the age of 14 to the United States from Nazi Germany, but the bill was rejected by the United States Congress in February 1939.

Wagner and Edward P. Costigan sponsored a federal anti-Lynching law. In 1935 attempts were made to persuade President Franklin D. Roosevelt to support the Costigan-Wagner Bill. However, Roosevelt refused to support the bill, not wanting to alienate Southern Democrats in Congress and lose their support for New Deal programs. There were 18 lynchings of blacks in the South in 1935, but after the threat of federal legislation the number fell to eight in 1936, and to two in 1939.  (The one truly good thing he tried to do and Roosevelt refused to sign it.  Go figure.)

The National Labor Relations Act or Wagner Act (after its sponsor, New York Sen. Robert F. Wagner) (Pub.L. 74-198, 49 Stat. 449, codified as amended at 29 U.S.C. § 151–169), is a 1935 United States federal law that limits the means with which employers may react to workers in the private sector who create labor unions (also known as trade unions), engage in collective bargaining, and take part in strikes and other forms of concerted activity in support of their demands. The Act does not apply to workers who are covered by the Railway Labor Act, agricultural employees, domestic employees, supervisors, federal, state or local government workers, independent contractors and some close relatives of individual employers.

President Roosevelt signed the legislation into law on July 5, 1935. It defined and prohibited five unfair labor practices. These prohibitions still exist, while others have been added under later legislation. The original employer unfair labor practices consisted of:

·         Interfering with, restraining or coercing employees in their rights under Section 7. These rights include freedom of association, mutual aid or protection, self-organization, to form, join, or assist labor organizations, to bargain collectively for wages and working conditions through representatives of their own choosing, and to engage in other protected concerted activities with or without a union. Section 8(a)(1)

·         “Dominating” or interfering with the formation or administration of any labor organization . Section 8(a)(2)

·         Discriminating against employees to encourage or discourage acts of support for a labor organization. 8(a)(3)

·         Discriminating against employees who file charges or testify. 8(a)(4)

·         Refusing to bargain collectively with the representative of the employer's employees. 8(a)(5)

The key principles of the NLRA are embodied in its concluding paragraph of section 1 including:

encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

The key principles also include:

·         Protecting a wide range of activities, whether a union is involved or not, in order to promote organization and collective bargaining.

·         Protecting employees as a class and expressly not on the basis of a relationship with an employer. Sections 2(5) and 2(9).

·         There can be only one exclusive bargaining representative for a unit of employees.

·         Promotion of the practice and procedure of collective bargaining.

·         Employers have a duty to bargain with the representative of its employees.

The Taft-Hartley Act of 1947, sponsored by U.S. Senator Robert A. Taft and Representative Fred A. Hartley, was designed to amend much of the National Labor Relations Act of 1935 (the Wagner Act) and discontinued parts of the Federal Anti-Injunction Act of 1932.   The Taft-Hartley Act was the first major revision to the Wagner Act, and after much resistance from labor leaders and a veto from President Harry S. Truman, was passed on June 23, 1947.

The Taft-Hartley Act provides for the following:

·  It allows the president to appoint a board of inquiry to investigate union disputes when he believes a strike would endanger national health or safety, and obtain an 80-day injunction to stop the continuation of a strike.

·  It declares all closed shops illegal.

·  It permits union shops only after a majority of the employees vote for them.

·  It forbids jurisdictional strikes and secondary boycotts.

·  It ends the check-off system whereby the employer collects union dues.

·  It forbids unions from contributing to political campaigns.

The act also required union leaders to take an oath stating that they were not communists. Although many people tried to repeal the act, the Taft-Hartley Act stayed in effect until 1959 when the Landrum-Griffin Act amended some of its features.  Prior to the enactment of the Taft-Hartley Act of 1947, 61 Stat. 140, 8(3) of the Wagner Act of 1935 (NLRA) permitted majority unions to negotiate "closed shop" agreements requiring employers to hire only persons who were already union members.

Any resemblance between my grandfather and his much older cousin ends at the portrait.  Grandpa was a conservative.  His daughter – Mom – was more moderate, except when it came to labor unions.  When the drivers of the bus company organized a union and went on strike, she refused to join.  The bus drivers tried to stop her bus from leaving the yard and got physical.  At one point, she and a union member were on the bridge leading into the bus yard.  The union gal wouldn’t let her over the bridge.  So my mother challenged her.

“You wanna fight?  Let’s fight, then!”  Mom, being bigger, had every intention of throwing the other woman over the side of the bridge and into the stream (it was only a few feet down).  My mother complained to the police, but they refused to get involved.

“We’re union, too,” the officer said.  Mom pointed up to the American flag waving over the police station.

“You see that flag?” she thundered.  “That’s the American flag.  That makes you American first, before union.  And that means that you have to protect me.  It’s your duty to protect me so I can go to work.  My right as an American to go to work and your duty to protect me as police officer comes before your union solidarity.”

From that point on, the police were on the scene to make sure the bus drivers could enter and leave the yard.  Mom is not, and never was, one to take things lying down.  She got busy writing letters to her representatives and to the National Right To Work Committee, which sent her information on her legal rights and the issues facing workers who don’t want to join unions.

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The National Right to Work Legal Defense Foundation, established in 1968, is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by abuses of compulsory unionism. The Problem “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical." -Thomas Jefferson These words of warning, written in 1786 by the father of American liberty, have gone unheeded in today's labor scene. Federal labor laws have, since the 1930s, permitted and encouraged the growth of compulsory unionism arrangements between union officials and employers, forcing millions of employees to pay dues to unions as a condition of employment. Workers subject to these forced unionism schemes have been denied their freedom of choice as to joining and financially supporting a labor union.The power to compel employees to financially support a labor union is still granted to union officials by federal law in 28 states. In these states that have not yet passed a Right to Work law, this power has led to abuses of workers' human rights and civil liberties. Even in the 22 states that have such a law, enforcement is very difficult. Many employees are never told by union representatives that they cannot be required to join the union-a practice that is illegal-and most do not know that there is a law protecting their rights. In addition, many union agents take advantage of the special legal privileges and immunities they enjoy under federal law to institute the "pick-handle closed shop" - join the union or else! The Need Prior to 1968, victims of compulsory unionism abuses were in a lonely, exposed position if they tried to fight back. They had been unjustly treated by their unions or employers, often by both. Government agencies tended to turn their backs to the problem. And even if workers could afford them, most labor law specialists worked either for unions or for management-not for the employee.  In the words of noted labor law professor and Watergate prosecutor Archibald Cox: “Individual workers who sue union officials run enormous risks, for there are many ways, legal as well as illegal, by which entrenched officials can 'take care of' recalcitrant members.” The National Right to Work Committee was then active in Congress and state legislatures, pressing for elimination of compulsory unionism, but it was not structured to give legal aid to individuals So by 1968, the time had come for an organization that could provide free legal aid to these victimized employees. Rather than working in the legislative arena, such an organization could fight through the court system, to protect employees from violations of their rights resulting from compulsory unionism. The time had come for the National Right to Work Legal Defense Foundation. The Program The Foundation's legal aid program is designed to fulfill two objectives: (1) to enforce employees' existing legal rights against forced unionism abuses, and, (2) to win new legal precedents expanding these rights and protections. The Foundation's caseload is growing every day with new complaints of coercion and denial of individual rights by union officials. In order to use its limited resources in the most effective and efficient way, the Foundation's legal staff evaluates every request for help in each of the following categories: The severity of the injustices suffered by the employee; The factual strength of the employee's situation as a basis for legal action; The possibility of establishing new legal precedents that would benefit other employees; The probable cost in view of the available resources of the Foundation. Abuses arising from compulsory unionism take many forms. In order to better plan our direction and check our progress in each area of litigation, all Foundation cases are divided into one of six categories: Misuse of forced union dues for political purposes; Union coercion violating employees' constitutional and civil rights; Injustices of compulsory union "hiring halls;" Union violations of the merit principle in public employment and academic freedom in education; Union violence against workers; Injustices of union organizing; Violations of other existing legal protections against union coercion. In addition to litigation, Foundation attorneys and consulting academic researchers are constantly searching to develop new legal theories, economic data, and social science findings that can be used to help win cases in court. The Result Since 1968, the Foundation has received charitable contributions from more than 350,000 Americans dedicated to the protection of individual freedom. The Foundation's staff of expert, innovative attorneys has fought for the rights of more than 20,000 employees in more than 2,500 cases, all the way from arbitration hearings to the U.S. Supreme Court. Millions have felt the impact. Through a coordinated system of legal actions, the Foundation steadily is shaping the law to protect the basic constitutional rights of the nation's workers. The Foundation is presently litigating on behalf of employees against a long list of unions, including the National Education Association (NEA), American Federation of Teachers (AFT), United Auto Workers (UAW), International Association of Machinists (IAM), and the Air Line Pilots Association (ALPA). Among the Foundation's victories are Communications Workers v. Beck, Abrams v. Communications Workers, Chicago Teachers Union v. Hudson, Abood v. Detroit Board of Education, Ellis v. BRAC, and Lehnert v. Ferris Faculty Association. The Foundation is a charitable organization and engages in no legislative activities whatsoever. Like any other charity, it works and hopes for the day when it is no longer needed. Until then, the Foundation will continue to protect the rights of all employees to live and work free of union violence, coerced support of union politics, and other abuses of compulsory unionism. The Foundation and its supporters believe strongly that an individual's constitutional rights take precedence over the rights of any private organization. In the words of Leon Knight, a university professor and Foundation plaintiff, “The idea of the dissident person, the idea of a person who marches to a different drum, is very precious. And yet unionism is coming in and saying I must march to that drum.” With the help of hundreds of thousands of concerned Americans, the Foundation is helping workers like Leon Knight march to their own drum, in pursuit of freedom and justice. The Foundation in Brief The Foundation is a charitable organization. It operates solely through the generous support of concerned Americans dedicated to the protection of all employees from abuses of compulsory unionism. The Foundation provides legal aid only at the request of individual employees suffering violations of their rights resulting from compulsory unionism. The Foundation is totally independent. It accepts no contributions for the purpose of financing a case on behalf of a contributor or an employee of a contributor. The legal staff operates under guidelines set by the Board of Trustees. All contributions to the National Right to Work Legal Defense Foundation, Inc. are tax deductible. Individuals, corporations, companies, associations, and foundations are all eligible to support the work of the Foundation through tax-deductible gifts. The Foundation is a public foundation granted tax exemption under Section 501(c)(3) of the Internal Revenue Code. The Foundation has background material available to substantiate the tax deductibility of your contribution. Last night on his television program, Glenn Beck urged his GBTV viewers to pass the word on to non-viewers.  The NRWLDF provided some key talking points for both non-union and union members who didn’t bargain on selling their American voting rights away.  Private sector union members are easier to convince than public sector, government workers who have inserted a political agenda into their contracts. There is also the NRWC, which engages in political action.  Visit both their sites and learn what you can do to throw the unions over the bridge.

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UNION PRIVELEGES: Exemption from prosecution for union violence. Exemption from anti-monopoly laws. The Clayton Act of 1914 exempts unions from anti-monopoly laws, enabling union officials to forcibly drive out independent or alternative employee bargaining groups. Power to force employees to accept unwanted union representation. Monopoly bargaining, or “exclusive representation,” which is embedded in most of the country’s labor relations statutes, enables union officials to act as the exclusive bargaining agents of all employees at a unionized workplace, thereby depriving employees of the right to make their own employment contracts. Power to collect forced union dues. Unlike other private organizations, unions can compel individuals to support them financially. In 28 states under the NLRA (those that have not passed Right to Work laws), all states under the RLA, on “exclusive federal enclaves,” and in many states under public sector labor relations acts, employees may be forced to pay union dues as a condition of employment, even if they reject union affiliation. Unlimited, undisclosed electioneering. The Federal Election Campaign Act exempts unions from its limits on campaign contributions and expenditures, as well as some of its reporting requirements. Ability to strong-arm employers into negotiations. Unlike all other parties in the economic marketplace, union officials can compel employers to bargain with them. Right to trespass on an employer’s private property. The Norris-LaGuardia Act of 1932 (and state anti-injunction acts) give union activists immunity from injunctions against trespass on an employer’s property. Ability of strikers to keep jobs despite refusing to work. Union-only cartels on construction projects. Under so-called project labor agreements, governments (local, state, or federal) award contracts for construction on major projects such as highways, airports, and stadiums exclusively to unionized firms. Government funding of forced unionism. Union groups receive upwards of $160 million annually in direct federal grants. But that’s just the tip of the iceberg. In 2001, the federal Department of Labor doled out $148 million for “international labor programs” overwhelmingly controlled by an AFL-CIO front group

ACTION PLAN FOR UNION WORKERS:

No employee in the United States can legally be required to be a full-dues-paying, formal union member. But in many states, an employee can be forced to pay certain union dues or be fired from his or her job.

Union members have the right to resign from formal membership at any time. However, dues deduction authorizations may limit when they can be revoked.

Employees covered by state Right to Work laws can not lawfully be required to pay any union fees to keep their jobs. But state Right to Work laws do not protect railway and airline employees and employees of private-sector contractors on some federal properties.

Because they enjoy the special privilege of exclusive representation, unions have a legal duty to represent fairly all employees in their bargaining units. Unions are legally required to represent nonmember employees the same as members, but unfortunately this duty is often breached.

If a law or bargaining agreement permits it, employees can be forced to pay certain union fees. If you don’t join the union, or resign from membership, and notify the union that you don’t want to pay full dues, the required fee must be limited to the union’s proven costs of collective bargaining activities. This fee may not lawfully include things like political expenses.

Nonmembers with religious objections to supporting a union have the right to ask the union to redirect the forced dues amount to charity. Religious objectors do not have to belong to a specific church to claim this right.

A union member who wants to work during a strike should resign from union membership BEFORE going to work. If the resignation is mailed, the employee should not work until the day after the resignation is postmarked. Otherwise, the employee could be fined by the union. If you are already a nonmember, you can work at will during a strike and not be lawfully fined.

Many employees have a legal right to petition for an election to oust an unwanted union from their workplace or to eliminate the union’s ability to collect forced fees. You should contact us if you want to do this.

Your best source for information about your Right to Work rights is this web site. Foundation attorneys have represented many employees like you, and have taken several cases all the way to the U.S. Supreme Court to protect workers’ rights.

If, after reviewing the information available through the links below, you are still unclear about your rights, or believe that you need legal aid because union officials have violated these rights (as they frequently do), call us at 800-336-3600 or send us an e-mail here.