The Building Tradesman Newspaper

Friday, June 22, 2007

A PAI Special Report: Labor law turned upside down...Taft-Hartley signed 60 years ago

By The Building Tradesman

By Mark Gruenberg
PAI Staff Writer

WASHINGTON (PAI) - On June 23, 1947, U.S. labor law turned upside down.

That's when the Republican-run 80th Congress passed the Taft-Hartley Act, by overriding a scathing veto by Democratic President Harry S Truman and over intense opposition from organized labor.

Marking that infamous anniversary is appropriate: The Democratic-run House this year passed the Employee Free Choice Act, designed to undo some abuses that have arisen in the 60 years since Taft-Hartley became law. The Employee Free Choice Act (HR 800/S1041) is pending before the Democratic-run Senate, but faces a GOP filibuster and - if that fails - a veto GOP President George W. Bush.

"Enactment of Taft-Hartley culminated a decade's worth of efforts directed at repealing, modifying, confining or undercutting the Wagner Act," Boston College law professor Thomas Kohler told a symposium on the impact of that law, on its 50th anniversary.

"Too much of the (Taft-Hartley) act shows it was the product of men who did not know how things work in industry or in the administration of the NLRA (the National Labor Relations Act), and of some who wished to weaken the position of all labor organizations in the economic and political scene," Kohler added.

Will the Employee Free Choice Act undo Taft-Hartley, and restore the nation's labor law to what the original Wagner Act - the National Labor Relations Act - intended in 1935?

No, because of 60 years of labor case law and court decisions made the nation's labor law "system" a pro-corporate, legalistic maze of procedural delays. One new law cannot untie that entire Gordian Knot. It can loosen it, however. The Employee Free Choice Act aims to do so.

With that in mind, it is useful to review some of the major provisions of Taft-Hartley and what labor said about it at the time - and later:

*The Taft-Hartley Act solidified the National Labor Relations Board's status as a quasi-judicial body, acting only on cases brought before it but with little enforcement power. Taft-Hartley also turned the board's General Counsel into an administrator and prosecutor, empowered to investigate complaints and prosecute when and where the counsel finds legitimate reason.

*Taft-Hartley reaffirmed Wagner Act provisions outlining 13 types of management labor law-breaking, formally called "unfair labor practice," charges. It added six methods of union labor law-breaking. Taft-Hartley also outlawed a key weapon unions had available until then, the secondary boycott.

Sponsoring Sen. Robert A. Taft (R-Ohio) Taft "had a mental block on one phase of labor relations: The secondary boycott. He couldn't understand it," the late AFL-CIO President George Meany said.

*Supervisors were barred from unionizing under Taft-Hartley. Under the 1935 National Labor Relations Act, they could, in their own bargaining units. As supervisors, thanks to Taft-Hartley, they may be forced into anti-union anti-worker campaigning, or be fired. One impact of the Bush NLRB majority's Kentucky River nurses-are-supervisors ruling last year is that millions of more people - from construction workers to physicians' assistants to newspaper reporters - could arbitrarily become "supervisors" who can't unionize, thanks to Taft-Hartley.

Congressional Democrats have introduced legislation to reverse Kentucky River.

* Taft-Hartley let states enact so-called "right-to-work" laws. It said that a contract that includes a union shop provision could see a de-certification election against that provision alone. The Bush-named majority on the NLRB just made such de-certification votes against union shop provisions easier to seek. The right-to-work provision particularly upset the AFL, Meany said in a later interview. Indeed, Taft-Hartley "didn't put us out of business, but we felt highly emotional about" both it and the right-to-work provision. "It said in effect: 'Here is the federal standard, but if the states want to tighten up and make it more difficult for labor to organize, they can do so. But they can't go the other way,'" and make it easier to organize, Meany added.

The Employee Free Choice Act does not repeal right-to-work. The last time the union movement tried, and failed, to repeal that part - section 14(b) - of Taft-Hartley was 1965.

* Taft-Hartley did reaffirm that encouraging collective bargaining as a way to settle labor-management disputes is a legitimate national interest. That was object of the NLRA, but House Republicans actually knocked that "national interest" language out of their version of Taft-Hartley in 1947. Sen. Taft stuck it back in, and in it stayed. "The bill is based on the theory of the Wagner Act. It is based on the theory that the solution of the labor problem in the United States is free, collective bargaining," Taft said during the debate over Truman's veto.

* With the passage of Taft-Hartley, enshrined into labor law was the so-called "free speech" provision, letting employers campaign against unions. "Although unions are limited in campaigning on company time and property, employers are not," writes noted St. Louis labor law attorney Bruce Feldacker in Labor's Guide To Labor Law.

"An employer has the right to speak to employees on company time and require employees to attend the meeting. This is the so-called 'captive audience' doctrine. An union does not have the right to reply on company time," Feldacker adds. It was cemented into labor law, other specialists say, by Taft-Hartley.

The Employee Free Choice Act would outlaw captive audience meetings.

Taft-Hartley had many other provisions, all designed, as speakers at the symposium said, to allegedly correct the pro-union tilt of the NLRA. Union leaders said business interests wrote Taft-Hartley.

"The Hartley-National Association of Manufacturers bill…is designed to bring about the destruction of free trade unions in our country," Meany told a radio audience in 1947. "Throughout the 68 pages we find the ideas and the very language of the NAM's anti-labor program lifted bodily and incorporated into the bill." Mine Workers President John L. Lewis called Taft-Hartley "the first ugly, savage thrust of fascism in America" written by "those who still believe in the institution of human slavery."

Today, AFL-CIO General Counsel Laurence Gould says the problem isn't Taft-Hartley, but labor law in general, combined with the NLRB's rulings and management's attitudes.

"Congress, the board and the courts enormously underestimated employer determination to maintain the status quo as the sole master of the enterprise and as the figure who is entitled to loyalty and to punish disloyalty," Gould told the Wagner Act symposium. "The rules that govern organizing campaigns may have changed the methods of coercion that are available, but they have done little or nothing to change the final result.

"In those terms, insofar as the (Wagner) act was designed to change the brute fact of employers' dominance, the act has failed. I do not believe procedural niceties and questions of enforcement….are at all determinative as to whether this law has any vitality at this point in time. This has come about because there are no major shared objectives between management and labor," Gould added. That was true when Taft-Hartley became law. As the fight over the Employee Free Choice Act shows, it still is.